The flag and the capital

Abstract

Abstract:

This article deals with two elements that have been present in the shaping of our national identity: the flag and the capital. Firstly, it analyzes the role of symbols in the relationship between socialization and individuality, between the rational and the emotional, the myth or the intuitive, something essential in democratic states to steer ourselves away from totalitarianism, taking into account the capacity of the nationalisms, fascism and populisms to manipulate in that space. Secondly, it studies the flag as a symbol of the State, both from the point of view of Comparative Law and constitutional history, as well as considering its current constitutional regulation. Thus, the display of the flag is also analyzed as an element of voluntary and conscious integration of citizens in the community, and as a defense of Spain`s unity and the Constitution and the freedoms of all
citizens, including Catalan citizens, in response to the problem of freedom that the unilateral declaration of independence of Catalonia has implied, as we have seen recently with a massive presence of the Spanish flag on the balconies. The article also studies the constitutionalization of the regional flags and the establishment of an obligation of the joint use of these together with the flag of Spain, which is a symbol of a constitutional and democratic Spain, that recognizes a high level of self-government towards its nationalities and regions. Furthermore, it also studies the conflicts that arise from the use of flags —the so-called «war of the flags»— , analyzing the most recent cases, which highlights the crisis in the sense of belonging to Spain derived from our territorial diversity. In the same manner, it also examines the breach of the obligation to use the Spanish flag in public buildings and official acts. Moreover the flag is also analysed as a constitutional value worthy of criminal protection; this also study the crime for flag desecration as a limit on the freedom of speech, which outlaws the burning of the flag as expressive conduct. It also discusses the JEC doctrine on the prohibition of the display of the «estelladas» in public buildings as a result of the application of the principle of political neutrality of the Public Administration, even though they can be used legitimately under the freedom of expression by private entities. Furthermore, the article also examines the prohibition of the use of the flag of Spain as an official symbol of a political party, which consequently conveys to society the idea that the flag belongs to a part of the population rather than to the entire country. Thirdly, the study analyzes the constitutional concept of the capital. The capital is not strictly speaking a symbol, but it has an important symbolic meaning. To attribute to a city the capitality means to turn it into the political head of a territory and to grant it a central position within the State. Likewise, the capital status refers to a fixed place where sovereignty is exercised and, thus, is the seat of the general institutions of the State. This study pleads for a flexible interpretation that does not empty the constitutional content of the notion of capital and at the same time allows a margin of freedom to the legislator in the framework of a strongly decentralized State. Therefore, the organs of state power and constitutional bodies must have their headquarters in Madrid, although the existence of any exception would not violate the constitutional provision. Finally, the paper addresses which the competences regulated by the Capital Law are as well as other singularities of Madrid.