Commentary


Flag Desecration Amendment Dangerous to Freedom


by John W. Whitehead
May 03, 1999

Since the Bill of Rights was first adopted in 1791, Congress has amended the United States Constitution a mere seventeen times. Not once has one of these seventeen amendments attempted to curtail the freedoms protected by the Bill of Rights-until now. Last week, the Senate Judiciary Committee recommended Senate approval of the proposed "flag burning" amendment to the Constitution. If passed, the amendment would shatter the very principles the flag symbolizes.

Battling it out on the Senate floor are veterans of World War II, Korea and Vietnam. As veterans and senators, both sides recognize the symbolism of the flag. However, proponents such as Sen. John McCain, Sen. Chuck Hagel and Sen. Max Cleland are willing to sacrifice our constitutional freedom for a fabric symbol. Opponents of the amendment, including Sen. John Chafee, Sen. Bob Kerrey, and Sen. John Glenn, are fighting to preserve the principles of the First Amendment. They recognize that this country protects rather than punishes its dissidents-even the offensive and disrespectful ones.

As recently as 1989, the Supreme Court in Texas v. Johnson ruled that burning the United States flag in a public protest is a form of expressive conduct protected by the First Amendment. While the act of burning the flag is not verbal "speech," it falls under the First Amendment because it is conduct designed to express an idea. The Court declared that this expression, though odious to the United States government and the vast majority of United States citizens, cannot be punished because the First Amendment was written to protect the expression of even the most insolent messages. "If there is a bedrock principle underlying the First Amendment," declared the Supreme Court, "it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable."

If passed by Congress and ratified by the states, such an amendment would give Congress the power "to prohibit the physical desecration of the flag of the United States." Amendment supporters argue that the flag is a sacred symbol, a "symbol in itself of our values...a statement about America's priorities," said Sen. Chuck Hagel. However, it is not the flag that makes America strong. It is the freedoms that its people are guaranteed by the Constitution. Sacrificing one of those sacred freedoms in order to preserve a fabric symbol would, as the Court said in Johnson, "dilute the freedom this cherished emblem represents."

If adopted, the proposed amendment would criminalize speech which the Supreme Court has ruled is protected by the existing Bill of Rights. Not only does this contravene centuries of collective experiential wisdom, it also establishes the unhealthy precedent of using the Constitution to limit personal freedom rather than to limit government power. At precisely the time when the people have been clamoring for, and politicians have been promising, a reduction in the role of Big Government and a rolling back of intrusions into the personal lives and freedoms of individuals, this proposed amendment sprints in the opposite direction.

The obvious purpose of the proposed flag desecration amendment is to curtail expressive activities that are repugnant to government officials. This amendment is all about intent: the acts that will be prohibited are those whose messages are offensive to those in power. The amendment targets neither accidental desecration nor the respectful disposing of old flags. Instead, willful expressions of what may be perceived as anti-government messages are the intended target. Punishing those who express unpopular ideas is not uncommon in countries like Cuba, which treats flag burning as a criminal act. However, punishing speech because it is unfavorable is contrary to our democratic principles. As stated by Sen. Bob Kerrey, who is the only senator since the Civil war to have received a Congressional Medal of Honor, "Patriotism calls upon us to be brave enough to endure and withstand such an act, to tolerate the intolerant."

While the United States flag is certainly deserving of respect and honor, this amendment would deliver a fatal blow to the First Amendment right to free speech. After all, what is so deserving of our respect is not the flag itself but the values and principles it symbolizes. Passing the amendment would threaten-rather than protect-that which deserves our respect and deference.
ABOUT JOHN W. WHITEHEAD

Constitutional attorney and author John W. Whitehead is founder and president of The Rutherford Institute. His new book Battlefield America: The War on the American People (SelectBooks, 2015) is available online at www.amazon.com. Whitehead can be contacted at johnw@rutherford.org.

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