How Gullible Do Samuel Alito and Mike Johnson Think We Are? (2024)

When the New York Times reported last week that Samuel Alito, an associate justice of the Supreme Court, had been flying an “Appeal to Heaven” flag at his vacation home on the New Jersey shore last summer, the legal world was confronted with yet another classic case of how to deal with the current warring textual methodologies for interpreting the law. One could either “read” this obscure-to-some pine-tree flag in the way the New York Times and its experts did—as a signifier of insurgent Christian nationalism. Or you could read it as a kind of benign 18^th-century foam finger: “Gooooo George Washington!”

In the week since, most defenders of the flag have doubled down on the foam-finger defense. In much the same way they claim that the right to bear arms is codified in the Second Amendment and has not acquired any new popular understanding since ratification, they urge that the Appeal to Heaven flag means only what it meant to the founders, because history ended on that day. Welcome to the world of flag originalism, in which the only winning answer is … 1775!

Most commentators understand that flags, like words, have changing meanings over time. “Until about a decade ago,” notes the Times, “the Appeal to Heaven flag was mostly a historical relic.” That meaning shifted fairly recently, when it was “revived to represent a theological vision of what the United States should be and how it should be governed,” according to Matthew Taylor, a religion scholar at the Institute for Islamic, Christian, and Jewish Studies.

Per the Times, Dutch Sheets, a right-wing Christian author and speaker, and a leader in the New Apostolic Reformation, rediscovered the almost forgotten flag in 2013 “and made it the symbol of his ambitions to steep the country and the government in Christianity.” As Sheets laid it out in his 2015 book: “Rally to the flag … God has resurrected it for such a time as this. Wave it outwardly: wear it inwardly.” Sheets has since made it his business to present the flag to people like Donald Trump, Sarah Palin, and others. When Trump lost in 2020, Sheets and “a team of others formed an instant, ad hoc religious arm of the ‘Stop the Steal’ campaign, blitzing swing state megachurches, broadcasting the services at each stop and drawing hundreds of thousands of viewers.” At that moment, one might contend, were one being truthful, the flag took on a new, let’s call it “evolving” meaning. And of course on Jan. 6, the Appeal to Heaven flags were everywhere. We know this because the Times has photos. As do others.

This suggests that a clear look at rather recent history reflects precisely what this flag means. But that assumes recent history holds value to you. The problem is that there is a second interpretive methodology being deployed to read the Appeal to Heaven flag. And, surprise! It’s originalism. Mike Johnson, for instance, hung it at his office last fall shortly after becoming speaker of the House. A spokesman for Johnson explained, amid the outcry, that Johnson “has long appreciated the rich history of the flag, as it was first used by General George Washington during the Revolutionary War.” Johnson himself told The Associated Press that he did not know the flag had come to represent the “Stop the Steal” movement. “Never heard that before,” he said, because mumble, mumble, George-Washington-and-the-Sound-of-History roaring in his ears. Instead, as Johnson then explained, “I have always used that flag for as long as I can remember, because I was so enamored with the fact that Washington used it.” Originalism Translator: Let’s all agree to ignore the contemporary meaning of this flag in favor of broad, outlandish claims that the centuries-old meaning is the only reasonable one.

In 2023, when Arizona Sen. Janae Shamp flew the Appeal to Heaven flag, she used the same justification. After she roundly rejected the notion that her use of the flag supported Christian Dominionism or incitement to violence, she insisted it reflected her fervent need to protect “our liberty and freedoms” from “the too many wanna be kings who inhabit elected office and (government) bureaucracies.” In an email she sent to the Arizona Mirror at the time, Shamp further explained: “Something that has had a particular meaning for 250 years retains its original meaning, no matter which fringe group might seek to co-opt it.” And then she landed, of course, on the old foam-finger defense: “I hope and pray that my fight enjoys a similarly favorable outcome as (George) Washington’s original struggle, and that I will succeed in restoring at least some small measure of liberty before I’m done.”

In her own apparently poker-faced defense of poor, beleaguered Justice Alito, the Wall Street Journal’s Kimberly Strassel similarly offers the following critique of the Times’ effort to explain current publicly shared understanding of the flag:

The Times somehow fails to let readers know that the flag is a longtime symbol of independence; that it was designed by George Washington’s secretary; was flown on ships commissioned by Washington; has been honored, commemorated, and flown over state capitols; and is the official maritime flag of the Commonwealth of Massachusetts.

Oh. It’s a symbol of independence. Well then, bygones. No need to think about the fact that it also hangs at Leonard Leo’s house.

It would seem, then, that as long as you root the symbology of this flag in what George Washington thought the flag meant in 1775, you’re gold, Ponyboy. The original public meaning of the statement was set in stone by George Washington’s secretary of the Navy. And, hand on heart, if you opt to stop time on that very day, you can arrive at the conclusion proffered by Speaker Johnson, and Arizona state Sen. Shamp, and the WSJ’s Kimberly Strassel. The flag means merely “I <3 George Washington.” Y’all who think otherwise are just the fantasists and haters.

Flag Originalism has many uses. For example, the swastika can be merely a benign ancient Hindu symbol. Pepe the Frog is a cuddly cartoon character. The Appeal to Heaven flag has nothing to do with Dutch Sheets, or the Proud Boys, or the Jan. 6 insurrection, or this chilling and violent flirtation with Christofascism. George Washington’s secretary of the Navy was the last word on public meaning.

This analysis is of course stupid for all the same reasons originalism itself is stupid. It’s a feeble attempt to pick the moment in time in which linguistic meaning stops, and to disregard the many moments in time in which meaning changed and grew and morphed into something else. It’s a sorry effort to impose certainty and predictability by pretending to be objective, even though it is completely malleable and outcome driven. But perhaps most importantly, the originalist reading of the Appeal to Heaven flag ignores all the ordinary ways in which humans make and understand shared political meaning: Through centuries of movements, public statements, shifting collective understanding, technological innovations, and a broader sense of whose voices matter.

It’s indeed a strange and wondrous coincidence that Justice Alito and Speaker Johnson and Leonard Leo and Dutch Sheets all hoist the same flag; a flag that’s been used for a decade to signal support for the notion that the United States is a Christian nation and that man’s justice is always subordinate to God’s. It’s an enduring political mystery that they want to keep that claim a big wink-wink secret and also fly it from a flagpole as if it means nothing at all.