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Next Time, Consider Lighting Yourself on Fire

Time to protect the flag from the malcontents among us.

I love the U.S. flag. And I’ll support what it takes to protect it.

The combination of the discussions of who will replace Sandra Day O’Connor, the Supreme Court’s outrageous rulings (particularly the Kelo case allowing government to steal property and the McCreary County case forbidding the Ten Commandments in two Kentucky courthouses), and the patriotic celebrations of our nation’s independence we all experienced last weekend provided for me a reminder of the need to protect our flag constitutionally.

Recently, the House voted 286 to 130 for the following flag-protection constitutional amendment: "The Congress shall have the power to prohibit the physical desecration of the flag." The bet is that the amendment has 65 votes in the Senate, two shy of the two-thirds (67) needed.

Of course, there are many of you out there who disagree with prohibiting flag-burning or any effort to amendment the Constitution, or both. But allow me to make a brief case for the amendment.

Our flag uniquely represents the common bond shared by the people of this nation. No matter our differences–party, politics, race, religion, economic status, or whatever– we are united as Americans. It is a unity symbolized by a single emblem, the American flag. As the visible embodiment of our nation and its ideals, the flag has come to symbolize hope, opportunity, justice, and freedom to the people of this nation and to people all over the world. As Chief Justice Rehnquist put it, "Millions and millions of Americans regard it with an almost mystical reverence regardless of what sort of social, political, or philosophical beliefs they may have."

Take veterans for example. Those who put their lives on the line to defend the flag have a deep appreciation for everything it symbolizes. When an American flag has been in danger of capture, soldiers have risked, and lost, their lives to prevent it from falling. Many liberals probably consider such heroics foolish, but most Americans understand that soldiers who die to defend the flag die nobly in defense of principles they hold more precious than life itself. Most Americans strongly share that attachment to the flag.

The civil society our flag symbolizes has strong protections for individual rights. In throwing off tyranny, our Founding Fathers were careful to make sure that the republic they established would not simply substitute a tyranny of the majority. In securing those rights, perhaps the most important right that was guaranteed was the right to free speech, because a democracy could not function if dissent were suppressed. At the same time, our Founding Fathers established the right to free speech as a right, not a license. The Constitution was not intended or understood to grant a free speech license to say or do anything one pleases to express opinion. A right confers responsibilities as well as privileges in a civil society. Individuals are provided freedoms to act as protections from tyranny from the majority, but they are not free themselves to become little tyrants against the majority.

Parameters on free speech have never been limited to procedural parameters such as the time, place, and volume of speech. Content limits have also always existed. For instance, speech that threatens to cause imminent physical harm, like shouting "fire" in a crowded theater, or inciting a crowd to riot, is not protected. Speech that causes intangible harm, like obscenity (which the Supreme Court has called pollution of the moral environment) or the disclosure of confidential personal information also is not protected.

But the Supreme Court narrowly decided in 1989 (Texas v. Johnson) and again in 1990 (United States v. Eichman) that burning a flag is expressive conduct that is protected by the 1st Amendment. Both cases were decided 5-4. What is perhaps most important to note about these cases is that they overturned a federal law and laws in 48 states against desecrating the flag. Some of those laws had been on the books and enforced for over 100 years.

For 200 years, it was understood to be constitutionally legal to protect the American flag from desecration to express one’s views, but the Supreme Court suddenly found otherwise. It declared that the 200-year understanding and practice of barring desecration as a means of expression was unconstitutional, because it thought that the interest of a state or the federal government in preserving the flag as a "symbol of nationhood and national unity" was not important enough to outweigh the infringement on anyone’s free expression rights who wished to burn it. The majority simply asserted in Texas v. Johnson that the respondent "was prosecuted for his expression of dissatisfaction with the policies of this country."

Wrong. He was prosecuted, as Justice Stevens correctly stated in his dissension, because of the method he chose to express his dissatisfaction. He would not have been prosecuted if his words had not been accompanied by his burning of the flag. But it’s important to note that he could have been prosecuted if he had instead chosen to accompany his words by using a motion picture projector to plaster slogans on the side of the Lincoln Memorial. (The legitimate, tangible interest protected would have been the preservation of the quality of an important national asset.)

Some legal scholars believe such a distinction between flag-burning and misusing the Lincoln Memorial is correct because burning "a" flag is not the same as burning "the" flag. They say that there are countless American flags, but there is only one Lincoln Memorial which is clearly owned by the federal government (also known as the American people). But a flag is never just "a" flag, something to be owned and treated as one wishes. Every flag is "the" flag. When millions of viewers watch in anger and horror as police protect a hateful protestor as he burns the flag, they do not comfort themselves with the false reassurance that he is burning a facsimile. They know that there is not any official flag tucked away safely somewhere in a federal vault. In this country of, by, and for the people, they understand that every flag is theirs.

Americans own this country and they own every flag. Individuals who possess flags possess something which they have no right to desecrate. Again, the distinction is between liberty and license. Justice Fortas once opined: "A person may ‘own’ a flag, but ownership is subject to special burdens and responsibilities. A flag may be property, in a sense; but it is property burdened with peculiar obligations and restrictions."

Possession of a flag does not really give ownership–it gives stewardship.

(The above is adapted from a piece I wrote for the U.S. Senate Republican Policy Committee.)

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