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.
