By John Tabin on 6.24.05 @ 12:07AM
Do we really need an anti-desecration amendment?
The First Amendment to the United States Constitution decrees
that "Congress shall make no law...abridging the freedom of speech,
or of the press; or the right of the people peaceably to assemble,
and to petition the Government for a redress of grievances." Does
this guarantee a right to burn a flag?
When the Supreme Court took the question up in 1989's
Texas v. Johnson and 1990's United States v. Eichman, the justices
split 5-4 in favor of free expression, and both the liberals and
conservatives were divided (in both cases, Harry Blackmun and
Antonin Scalia joined the majority while John Paul Stevens and
William Rehnquist dissented). Frankly, I doubt even the framers
would have agreed on the answer.
This week the House of Representatives voted, as it has several
times before, for a constitutional amendment granting Congress the
power to ban flag-desecration. The amendment is closer than ever to
passing the Senate (it's only two votes away, by most accounts) and
if it did it would almost certainly make it through 38 state
legislatures and become a part of the Constitution. So: Whether or
not laws against flag-burning are unconstitutional,
should they be?
One might offer that it doesn't matter much. The flag went
unprotected by law until the late 19th century; the Republic
survived. By 1932 every state had a flag-desecration law, and in
1968, in response to Vietnam protesters burning the flag, Congress
passed a federal flag-desecration law that stood for two decades
before it was revised in the wake of Johnson and
overturned in Eichman. It would be hard to argue that the
20th century was a dark age for free speech. Nor has there, in the
past 15 years, been an epidemic of desecration; according to the
Citizen Flag Alliance (which supports the amendment), last year
there was only one reported incident of flag-burning.
But what about the symbolism of the amendment? I know how
supporters mean it: as a patriotic, almost chivalric defense
against those, aided and abetted by egg-headed jurists, who would
use the flag to dishonor a great nation. But that's not the only
way it might look. Rather, it might seem of a piece with the
pernicious policies of leftish nannyism -- overbroad sexual
harassment laws, college campus speech codes -- designed to
establish a right not to be offended. It seems almost neurotic: Do
we really feel threatened by those so moronic that they burn the
American flag, call ours a fascist state, face no consequences, and
completely miss the irony?
The effort to protect the flag by constitutional amendment ought
to be ended. Not because our federal courts have better things to
do than prosecute flag-burners. Not because our cherished liberties
ought to be kept as absolute as possible. Not even because
constitutional amendments ought to restrict the power of Congress
rather than expand it. Rather, the flag-protection effort ought to
be scotched for the simple reason that America doesn't get rattled
by some stupid little punk with a Che Guevara T-shirt and a Zippo.
We are, or ought to be, far too thick-skinned a nation for
that.
topics:
Constitution, Law, Supreme Court
