They disagree with you history too. And they are right.

https://en.wikipedia.org/wiki/United_States_trademark_law

Trademark law goes all the way back to the late 1800s, but the prohibition on offensive trademarks only goes back to the 1946 Lanham Act.

Also, the issue is not ” hitherto unsuspected constitutional rights lurking in the constitution.” but absolutely core first amendment rights.

See pending post slated for tomorrow.

Apparently the Federal Circuit disagrees with my analysis. In Re Simon Shiao Tam, 2014-1203, (Fed. Cir. Dec. 22, 2015), at http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/14-1203.Opinion.12-18-2015.1.PDF .

For one thing, I believe that proscription has been around since the early days of trademark law, and I am not a proponent of the movement to locate hitherto unsuspected constitutional rights lurking in the constitution. We have more than enough trouble protecting the clearly demarcated rights that are indisputably in the constitution without unearthing more rights not to protect. (Of course, that puts me out of step with the Zeitgeist).

For another, trademark ipso facto requires the holder to maintain the association of the mark with his product in the minds of consumer. If offensive marks were granted trademark protection, the the government would be penalizing the company for *not* constantly expressing its mark, which it would have to do in order to maintain validity.