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The flag amendment: Reverence confronts reason
Inside the First Amendment

By Paul K. McMasters
First Amendment Center ombudsman
06.04.06

The unadulterated version of one of history’s most remarkable covenants between a government and its people — the Bill of Rights to the U.S. Constitution — hangs by a slender thread in the U.S. Senate.

A proposal to amend the Constitution to prevent flag desecration is scheduled for a vote in the Senate during the week of June 26. Supporters and foes agree the measure is within a single vote of the 67 needed for passage. It already has passed in the House. If it passes in the Senate, it goes directly to the state legislatures, where ratification is virtually assured since all 50 legislatures have endorsed the concept and only 38 are needed to permanently change the Constitution.

So, a lot rides on this impending vote in the Senate.

If the one-vote margin falls on the side of passage, the Senate will set in motion a dramatic and lasting change in the way we view and treat political dissent. If the flag-desecration amendment is ratified, for the first time in this nation’s history we will have materially changed the Bill of Rights, which affirms and secures the fundamental rights of all Americans against the power and reach of government.

More specifically, speech protected by the First Amendment and affirmed by half a dozen Supreme Court decisions since 1907 stands to be criminalized.

Why are our political leaders contemplating such a radical action?

There has been no outbreak of flag-burnings or other acts of disrespect. There is no evidence that Americans revere our flag less these days; quite the contrary.

But a single act of disrespect to the symbol of our nationhood and national unity — even the prospect of such an act — is an unconscionable affront to millions of Americans. Many of them are weary of waiting for the Supreme Court to “get it right.” They are ready and willing to rewrite the Constitution to protect the flag.

Such reverence for the flag notwithstanding, there are powerful and persuasive reasons advanced by the opponents of such an amendment that the courts indeed have got it right.

The courts have consistently ruled that flag-burning is protected by the First Amendment because it is symbolic speech, one of the most powerful forms of expression — a “short cut from mind to mind,” as judges and justices have described it.

A flag-desecration amendment, therefore, would pierce the heart of political speech, “expression situated at the core of our First Amendment values,” wrote Justice Brennan in the 1989 decision Texas v. Johnson.

Further, ratification of a flag-desecration amendment would launch a decades-long constitutional and legal battle over the nature of new laws implementing the amendment, the definitions of “flag” and “desecration,” and the courts’ interpretation of those laws and those definitions. Americans wishing to use the flag in commerce, in art, in political campaigns or in dissent would not know whether they were vulnerable to prosecution.

There is no question that the U.S. flag is the most endearing and enduring of our symbols. It leads our soldiers into battle. It flies proudly above our monuments and government buildings. It stirs our patriotic passions and reminds us who we are and what we can be.

It is the Constitution, however, that brings order to the democratic process, that guides us through legal and cultural turmoil, that keeps our leaders in line and our institutions accountable, and that requires us to reason together and to tolerate differing, even offensive, views.

And it is the Bill of Rights generally, and the First Amendment in particular, that guarantees some of our most cherished freedoms.

To change those charters to protect the flag is to contradict what the flag stands for. To protect a symbol from physical desecration, we would desecrate the constitutional covenant securing real freedoms.

When we salute the flag, we salute our commitment to free speech and the right to protest.

As we regard our flag, each of us experiences a range of emotions conveying a range of messages, different for each of us. Those differences become even more significant if we anoint by amendment the majority or those in charge with the authority to foster an orthodox view of our national symbol and criminalize any opinion or feeling to the contrary.

That is why it is so important to keep the First Amendment intact. It stands as a caution and a barrier to the idea that the majority can dictate what people may say and how they may say it. When it comes to the regulation of expression, a majority risks becoming a mob.

Changing the First Amendment to protect the flag confesses a needless uncertainty about the power and permanence of both. To raise a symbol above the reality it stands for would be unwise, unnecessary and ultimately un-American.

Paul K. McMasters is First Amendment ombudsman at the First Amendment Center, 1101 Wilson Blvd., Arlington, Va. 22209. E-mail: pmcmasters@fac.org.


Related

Senate panel approves flag-protection amendment

House already has passed the amendment; assessments differ on how likely the full Senate is to pass it. 05.05.06

Panel spotlights uncertainties over flag amendment
By Eric Nelson National Press Club discussion, featuring speakers both pro and con, wrangles over definition of 'flag,' what constitutes 'desecration.' 06.07.06

Senate committee OKs flag amendment
Measure moves toward full Senate consideration this month; foes, supporters say it could be within one vote of passing. 06.15.06

Opposition to flag-burning amendment unites Senate leaders
Republican Mitch McConnell, Democrat Dick Durbin — each their party's second-ranking senator — say protecting free speech takes precedence. 06.26.06

Flag-desecration amendment fails in Senate
Measure falls one vote short of two-thirds majority needed to pass.
  • How they voted 06.27.06

    Flag-protection group vows continued fight
    Citizens Flag Alliance 'disappointed' by narrow defeat of flag-desecration amendment in Senate; House passes measure to bar condos, homeowner associations from restricting flag displays.
  • How they voted 06.28.06

    The flag amendment: A symbol of democracy in distress
    Proposed amendment now before Congress, which turns the First Amendment upside down, is a sign of democracy in distress. 02.06.98

    Don't burn Constitution to save flag
    By Nat Hentoff Current push to pass flag-desecration amendment puts us perilously close to undercutting the freedom for which our flag stands. 05.30.06

    Timeline: history of flag protection

    Flag-burning


    Flag-burning overview


    Analysis/Commentary summary page
    View the latest analysis and commentary throughout the First Amendment Center Online.

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