I’ve heard many arguments against my support for a Flag Protection Constitutional Amendment that I wrote about last week ("Next Time, Consider Lighting Yourself on Fire"). So, I would like to answer a few of those disagreements.
First, some opponents believe that outlawing the desecration of the flag will outlaw the desecration of many, perhaps all, other symbols as well. Such a conclusion is the same mistake the Supreme Court made when they failed to make the distinction between the flag as a symbol and any other symbol, noting that if the right to express oneself by damaging this symbol could be denied, then by extension the right could be extended to any other symbol. This slippery-slope argument, which I have heard from newspaper editorialists, political pundits, constitutional scholars, and other elitist intelligentsia from across the political spectrum, simply is out of touch with reality. The flag is sui generis; it alone has the devotion of the American people; it alone represents freedom, equality, and democracy.
The Constitution has not been amended by the people very often (though the Court, through its decisions, constantly amends it) because the difficulty of doing so makes it impossible unless it is a matter that is of such paramount importance to them that they are able to overcome the procedural obstacles. Arguing that protection for this symbol will result in more amendments protecting other symbols is utter nonsense; the only way any other amendment to protect a symbol will pass will be if it rises to the monumental level of importance that only the flag has so far reached. If any other symbol becomes that important to the American people, we think it will deserve protection. The argument that protecting this symbol with an amendment will lead the Supreme Court to uphold laws protecting less important symbols is also fallacious. The Supreme Court refused to protect the flag because it noted that the Constitution did not explicitly grant it any special exemption. Granting it that explicit special exemption will not convince the Court that implicit exemptions will apply to lesser symbols.
Second, some people believe that the Congress should just pass a law if it really feels it necessary to "protect" the flag and "violate" the 1st Amendment. The Supreme Court has already shot down such a federal law and the laws in 48 states against desecrating the flag. (See the 1989 Texas v. Johnson case and the 1990 Unites States v. Eichman case.) It is interesting to note that in the Senate most members want some sort of legislation to deny the right to destroy the flag. The problem arises from the fact that most of those who claim they do not want to curb 1st Amendment rights are more than willing to support a statute that would aim to do the same thing. They either are speaking out of both sides of their mouths or they don’t actually support legislation that would actually protect the flag: they know the Supreme Court will strike down any protection statute without a constitutional amendment.
Third, there are many who believe that the movement for this constitutional amendment is a radical right-wing cause. They couldn’t be more wrong. The House version (HJ Res 10) passed with a bipartisan majority (286-130) and has a bipartisan list of 196 co-sponsors. The Senate version (SJ Res 12) has a bipartisan roster of 57 co-sponsors. This amendment, every time it has been considered, has been a bipartisan effort. But the effort didn’t start in Congress. A grassroots coalition, the Citizens Flag Alliance, consisting of more than 100 civic, patriotic, veteran, and religious organizations, formed in 1990 to press for a constitutional amendment. As more average Americans have joined the cause, at least 49 state legislatures, both Republican and Democrat, have passed resolutions calling for Congress to submit an amendment to them for ratification. Congress has been the last to act. The necessary two-thirds majority of Members in the House supports this resolution — the Senate stands alone against the wishes of the American people.
Fourth, many opponents claim this amendment would amend the Bill of Rights by amending the 1st Amendment. I disagree. Each amendment would be interpreted in light of the other — much as in the case with the guaranties of freedom of speech and equal protection. For example, when the 14th Amendment was proposed, where was the argument that congressional power to enforce the equal protection clause might be used to undermine the 1st Amendment? The courts have seemed able to harmonize the two. And they can do the same with this amendment, considering this amendment will only restore the understanding of what the 1st Amendment means to that which existed for 200 years, until the Supreme Court changed it in 1989.
Fifth, others have suggested that the language of the amendment ("The Congress shall have the power to prohibit the physical desecration of the flag.") is too vague. It’s no vaguer than other language in the Constitution, especially in the Bill of Rights. Thankfully these opponents were not involved in the drafting of the Bill of Rights, because if they had been, they would have fits from such "vague" terms as "unreasonable searches and seizures," "probable cause," "speedy . . . trial," "excessive bail," "excessive fines," "cruel and unusual punishment," "due process of law," and "just compensation." None of those terms are self-executing, but they are understood, they are implemented, and they have done an admirable job of protecting rights.
Finally, several opponents have said this amendment is unnecessary because few flags are burned or otherwise desecrated each year. I think those people are underestimating the damage. No matter the number of desecrations that occur each year, those desecrations are usually reported in print, on the radio, and on television. Tens of millions of people se, hear, and read about them. The impact is enormous, as is shown by the grassroots movement that has brought Congress to the verge of passing this constitutional amendment.
Democratic Sen. Daniel Patrick Moynihan once wrote a paper entitled "Defining Deviancy Down." That paper chronicled a gradual and continuing breakdown in civil society. Former Education Secretary William Bennett also clarified the problem by statistically tracking it in his paper entitled "Index of Leading Cultural Indicators." Standards of acceptable behavior have been spiraling lower in America as ever baser, more destructive behavior has grown and has been given resigned acceptance as the norm. The moral relativism embraced by elitists in the media, government, universities, Hollywood, and elsewhere has twisted average American’s views of acceptable conduct to the converse of what traditionally has been considered acceptable, civilized behavior. Americans are becoming tolerant of everything that is rotten and intolerant of many things that are good, destroying lives and eroding our freedoms as Americans.
This amendment was recently passed by the House, but the elitist Senate is likely to stand in the way once again. Many like to tout the idea that the Senate is to be a brake against legislation fueled by transient, popular passions. Fine. But the Senate should not be a brick wall against measures that reflect the deeply held, unwavering beliefs of the American people. Though the Senate is intended to be a "cooling saucer," it is not given license to ignore the will of the people by whom its members are elected, especially on issues of great importance. This constitutional amendment is vitally important because it goes to the very essence of "government by the people"–it reflects the people’s decision to give back to Congress a power that the Supreme Court has taken away.
In 1989, the Supreme Court blew it and pushed us further down the path of decay by ruling that the flag, the very symbol of free speech and all other freedoms, which is owned in common by all Americans, may be destroyed as an expressive act. For the Supreme Court, free speech limits to protect a person physically are acceptable, free speech limits on political spending are fine (see McCain-Feingold), and even some free speech limits to protect societal values, such as obscenity laws, are constitutional, but laws to protect the very symbol of our civil society and freedoms are unconstitutional. This failure to protect the flag is corrosive and contributes to the coarsening of society by sending the message that the values that most Americans hold dear aren’t worth defending.
The Supreme Court erred in its narrow 1989 and 1990 decisions. It failed to understand the importance of the flag to the American people, and the damage that its desecration causes to the social fabric of this Nation. The American people support the 1st Amendment right of anyone to say anything about their flag, but they know that the 1st Amendment was never intended to give an individual the right to burn their flag.
Many opponents of this amendment are focusing so strongly on individual rights that they are totally blinded to the rights of society as a whole. Congress’ passing this amendment and sending it to the States for ratification could create the greatest debate on values and Americanism and the continued need for national unity this country has seen in some time.
The flag is a vital part of American identity and unity. As General Norman Schwarzkopf said: "The flag remains the single, preeminent connection to each other and to our country. Legally sanctioned flag desecration can only serve to further undermine this national unity and identity that must be preserved."
It’s time to restore constitutional protection to the flag.
(The above is adapted from a piece I wrote for the U.S. Senate Republican Policy Committee.)