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Editor’s Note: Often because of a spasm of public outrage over some bad act or out of fear of a future 30-second attack ad, the U.S. Congress passes some truly strange legislation, like the Stolen Valor Act which can imprison people for a year if they wear a medal that they didn’t earn.

In this guest essay, the Independent Institute’s Ivan Eland sees such legislation as another case in which members of Congress put their desire to look “patriotic” over a commitment to real patriotism:

Dozens of people have been arrested under the Stolen Valor Act, which punishes, by up to a year in jail, the wearing of any unearned military medal. It is still a crime even if no effort was made to profit from the adornment or dissembling about earning it.

This law is now being challenged in the courts as a violation of the First Amendment’s free speech right. Let’s hope that the judicial system acknowledges the clear violation of this amendment.

But, of course, many times the courts choose the wrong answer, especially when questions of “patriotism” and the military arise.

The ancient Greeks and the men and women of the 18th-century Enlightenment, which included the American founders, differentiated between patriotism and nationalism. Patriotism to both of these groups meant a responsibility to fellow citizens and devotion to humanity and the common good.

Fealty to the nation-state and its government—nationalism—was an entirely different concept. In fact, the original U.S. patriots fought the American Revolution against the British nation-state and its government to preserve the traditional Englishmen’s rights in the colonies, which were under attack from the British crown.

Unfortunately, in the 19th century, the concepts of patriotism and nationalism blended. On top of that, after World War II, U.S. foreign policy became permanently militarized and public guilt about some mistreatment of returning Vietnam conscripts has led to excessive post-Vietnam adulation of the U.S. military.

The public also feels sheepish about its lack of sacrifice—for example, sitting in lazy boy recliners watching the Super Bowl—while young men and women fight the government’s wars.

Such excessive admiration of things military is quite the opposite of what the founders believed. They, almost to a man, were suspicious that large standing armies, such as those of 18th-century European monarchs, would be a major threat to liberty.

Given this American history, the adoption by the House, unanimous passage by the Senate, and signing by the president in 2006 of the clearly unconstitutional Stolen Valor Act indicates that demagogic nationalism by politicians knows no bounds.

Wearing an unearned military medal falls under none of the traditional judicial limits imposed on First Amendment free speech—that is, obscenity, libel, or imminent danger to others. That is, the courts have ruled that the First Amendment protects almost all speech that doesn’t harm another person.

Also, as Jonathan Turley, a law professor at George Washington University, told the Washington Post about the act, “Half the pickup lines in bars across the country could be criminalized under that concept.”

Taking the absurdity even farther, a kid could be arrested for wearing old military medals as part of a Halloween costume.

Of course, if anyone attempts to profit from saying that they won an unearned medal, or by actually wearing one, he or she could still be charged with fraud.

Liberty, for which our military men and women are supposed to be fighting, should trump nationalism, faux patriotism, and militarism. In fact, all of these things probably harm the U.S. military more than a wannabe hero making false claims about earning a martial medal.

All of these maladies, usually promoted by guilt-ridden expedient civilians, usually get military people killed in unnecessary wars—certainly more disrespect to the nation’s armed forces than faking a few medals.

Ivan Eland is Director of the Center on Peace & Liberty at The Independent Institute. Dr. Eland has spent 15 years working for Congress on national security issues, including stints as an investigator for the House Foreign Affairs Committee and Principal Defense Analyst at the Congressional Budget Office. His books include The Empire Has No Clothes: U.S. Foreign Policy Exposed, and Putting “Defense” Back into U.S. Defense Policy.

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