"You Let A LAWYER Write the National Anthem?"
by Frances Whitney

Question: How can you tell the difference between a lawyer and a coyote smashed on the road?

Answer: The coyote has skid marks behind it.

    Dissatisfation with "The Star-Spangeled Banner" has been growning since it replaced "My Country 'Tis of Thee" as the national anthem in 1931. The eminent columnist Ann Landers admits, "I am among those who would prefer "America The Beautiful." People have objected not only to the verse, but also to the music, which is written in the high and screechy key of G major, and which is based upon a rollicking military arrangement of a sixteenth-century English ode to the god of wine. Others dislike the convoluted syntax of the lyric and the apparently blatant anglophobia of the polemic. Be that as it may, the truth about our national anthem's shortcomings is even worse: "The Star Spangled Banner" was written by a lawyer.

    Members of the world's second-oldest profession have long known how to twist language so as to say one thing while meaning another, to state with apparent clarity that which cannot possibly be understood, and to use a maximum number of words to say nothing at all. By 1812, this ability for verbal manipulation had been reinforced by the conventions of nineteenth-century literary style, and legal usage was in full florid flower. Accordingly, it is with a sly wink to the reader that Raymond Kendall inserts the information that Francis Scott Key was a lawyer into his article on the birth of our nation's musical ambassador.

    As the skunk always smells himself first, lawyers themselves acknowledge the moral limitations of the breed. "The reason they're saying all those terrible things [about lawyers] is because they're true," said State Bar of California official Robert Fellmeth. In a society such as ours, in which such an admission is the only believable thing a lawyer can say, it is no wonder the ordinary man in the street entertains suspicious that the national anthem does not really hold true to its apparent meaning. An inquiry into the lyric, using the Oxford English Dictionary, soon confirms the worst.

    The very first word of the first verse, "Oh", is defined as "an exclamation expressing emotion of various kinds... especially as a cry of pain or terror, or in expression of shame, derisive astonishment, or disapprobation." While the citizen reels in shock at the implications herein, let us pass to the second word, "say." The first definition given is that of a tightly woven serge cloth--in other words, the very wool of which the original Star-Spangled Banner, now hanging in moth-eaten splendor in the National Museum of American History, is fashioned.

    Did Key intend those first words as an apostrophe--addressing his sudden disapproving cry of "Oh!" to the flag itself? Only a lawyer would be able to argue with certainty. Can the flag see? No, of course not. It has alreay been established that the song was written in G, and while many popular arrangements are in B flat or E flat major, the"Star Spangled Banner" is never, never C. Of course, for the right fee, a lawyer would try to make it appear to be so; thus the apostrophe.

    If we believe that the opening words, "Oh, say," are not addressed to the audience but intended as apostrophe to the flag, the vantage point of the entire poem shifts. What does the flag see from its roost above Fort McHenry? The next lines provide some clues.

    The dictionalry gives the definition of "by" as "a form of swearing or adjuration". This presents a difficulty. We know that lawyers are acquainted with adjudication, not adjuration, even though during the priod when Key practiced, witnesses (but not lawyers) were sworn on a Bible. Did a nineteenth-century lawyer embrace paganism enough to swear by "the dawn's early light"? History is silent on the subject.

    Another difficulty is presented by the alternate definition, "position in space, close to, near, beside". The phrase, "can you see by the dawn's early light" fixes the location of the antecedent of "what so proudly we hailed" as in the east, next to the rising sun. Key couldn't, therefore, thave been looking in the direction of the flag over Fort McHenry--a man on a boat in Baltimore Harbor gazing at the port would have to have been looking west. What, then, does Key seek in the lightening east--arriving British reinforcements?

    The activity "to hail" which Oxford gives as "to drink to" has alwasy been a popular human pastime. This may explain the choice of melody for Key's lyric. We may also conclude that if Key had been hailing since "the twilight's last gleaming" there is a possibility his sense of direction, not to mention propriety, would be quite confused "by the dawn's early light." Whether he was seeing flags flapping in the eastern sky or whether he tried to swim the streets of Baltimore upon disembarkation has not been recorded. However, if, as Oxford suggests, the "hail" is "a shout or call to attract attention" we may be sure Key would not have minded making a spectacle of himself in such a condition. Lawyers love the limelight.

    "Whose broad stripes and bright stars." Whose indeed" If the traitorous Key, as suggested above, were gazing east as indicated by the text, perhaps the broad strips he sought were those of the Union Jack. But what of the stars? Oxford gives twenty-three definitions of the nomnial form, nine of the verbal, plus two obscure usages having to do with dermatological abnormalities and tumors in horses. It is a word to delight a lawyer's heart! Which shall it be? The obvious definition is too easy, too common. Besides, it is nearly daylight. Later references in the poem indicate Key could have intended definition number seven: "Pyrotechny. A small piece of combustible composition, used in rockets, mines, etc., which as seen burning high in the air resembles a star." The text makes in apparent that these fireworks would indeed have been visible to the piece of "say" whch Key interrogates in the first stanza. Another explantion, which would not necessarily preclude the foregoing, might be the mere "trivial expression of astonishment...'my stars and garters!'" as the freshening morning breeze brings to the barriser the realization that his wife has been awaiting his homeward footstep in vain as he experimented with "proof through the night", and she is really going to make him "see stars."

    The fight would then be considered perilous, indeed.

    Oxford gives only one meaning to the word "ramparts", a rather long one having to do with earthworks and stone fortifications. We thus must turn to an evaluation of the syntax to sort out Key's meaning. The sentence says that "we" watched "o'er the ramparts." Now wait a minute. Key's previous testimony states that he was on a boat during the battle--he therefore could not have been peering over the earthworks. On the other hand, the reader is cautioned not to confuse the persona of a poem with that of the author himself. Perhaps the persona is identifying with the occcupants of the fort, including the "say" as they watched the Union Jacks and explosives "gallantly streaming" over the ramparts. The world knows the Redcoats were better-dressed than the Americans and more "suited to fashionable society" as Oxford says a gallant must be.

    At this point the composer borrows from the Baroque tradition and makes the architecture of the music fit the meaning of the lyric. Notes shoot skyward like rockets, glaring strep-throat red, and the audience trembles at the possibility that the sopranos, like the bombs, will burst in the air. Key, as an attorney, knew his evidence stood on shaky ground and had to turn to the use of experts from other fields of endeavor for "proof." The composer therefore tries with musical pyrotechnics to reinforce the argument that flashing lights and explosions constitute hard legal fact. While this is undoubtedly not the first instance in history when a pollitician has substituted bombast for substance, it stands near the pinnacle of the genre.

    The next line opens again with the apostrophe, "Oh, say." As a poet seeking immortality--many lawyers are frustrated English majors--Key knew that he had to come up with a really snappy wrapup. Keats is remembered, after all, for addressing a Grecian urn. A man could be committed for conversing with a piece of woolen serge. The poet asks two Socratic questions:

  1. Does that Star Spangled Banner yet wave?
  2. O'er the land of the free and the home of the brave?

    Not until about 1968 were these two concepts again the subject of intellectual inquiry. The questions still remain within the venue of legal rhetoric because of the grandiose lexicon: STAR, with its seven dictionary pages of august definitions, SPANGLED, in queenly adornment, BANNER and its implications of crusades and knights errant, and WAVE, with its connotations of the powers of air and sea. The last phrase is an isocolon, popular in oratory since earliest times and skillfully used here by Key to link land and home, free and brave. The drum roll commonly executed during the fermata of the last note emphasizes the word BRAVE, indicating on the surface that if people are BRAVE they may be also FREE, and the LAND may be their HOME.

    Buried in these last two phrases is the kernel of the nut. Those who have feared that the lyrics of our national anthem may offend our United Kingdom allies need trouble their minds no longer. We have established that Key was a lawyer interested in expediency, swilling high proof British gin throough the night, physically facing in the wrong direction and ideologically drifting toward the wrong side. The verse contains not down-home democratic American vocabulary but upper-class royalist rhetoric, which makes the last line tantamount to an open invitation for His Majesty's troops to come on over and once again annex the land of the free to the empire upon which the sun never sets.

     The American nation has been saved only the the whim of opposing counsel, which, using the same reserach tools, gives an entirely different interpretation of the poem's language.

Frances Whitney
Copyright 1990