Testimony of Roger Pilon, Ph.D., J.D.
Senior Fellow and Director
Center for Constitutional Studies
Subcommittee on the Constitution
House Judiciary Committee
United State House of Representatives
Mr. Chairman, distinguished members of the subcommittee:
My name is Roger Pilon. I am a senior fellow at the Cato Institute and the director of Cato’s Center for Constitutional Studies.
I want to begin by thanking Chairman Hyde of the Committee on the Judiciary for inviting me to testify before the subcommittee on “H.J. Res. 54: Proposing an Amendment to the Constitution of the United States Authorizing Congress to Prohibit the Physical Desecration of the Flag of the United States.”
I have had the pleasure of working with Chairman Hyde in the past on several issues and look forward to working with him in the future on many others. On the issue before the subcommittee today, however, I am afraid I must demur, taking a position opposite that of Chairman Hyde and many on this subcommittee. In fact, because this issue separates me from so many with whom I normally join hands, I sense a special burden to show why I believe this proposed amendment is unwise–indeed, is fundamentally mistaken.
Let me begin to discharge that burden by making clear from the outset what should be beyond any doubt, namely, that I am not here to defend those who would desecrate the flag of the United States. I dare say, in fact, that my contempt for such action is equal to that of any member of this subcommittee. For the flag is not simply the symbol of America; more deeply, it is the symbol of the principles on which this nation rests. Those who would desecrate the flag are thus guilty, at bottom, of desecrating our principles, which is why we find their acts so offensive. Ironically, however, it is those very principles that protect such acts–and restrain the rest of us in the process.
In a word, therefore, I am here not to defend flag desecration but to defend the right to desecrate the flag, offensive as the exercise of that right may be to so many Americans. That position may strike some as contradictory. It is not. In fact, there is all the difference in the world between defending the right to desecrate the flag and defending flag desecration itself. It is the difference between a free and an unfree society. This amendment, as it tries to shield us from offensive behavior, gives rise to even greater offense. By offending our very principles, it undermines its essential purpose, making us all less free.
Let me plumb those issues a bit more deeply by noting, first, that flag desecration of a kind that this amendment would authorize Congress to prohibit is political expression and, second, that political expression is precisely what the Framers wanted most to protect when they drafted the First Amendment. In a pair of cases decided in 1989 and 1990–involving first a state, then a federal statute–the United States Supreme Court said as much, which is why those who want to prohibit people from engaging in such acts have resorted to a constitutional amendment–an amendment that would, for the first time in over 200 years, amend the First Amendment. That alone should give pause.
But it is not the First Amendment alone that protects the rights of political expression. Even before the Bill of Rights was ratified, two years after the Constitution itself was ratified, citizens were protected against overweening federal power by a simple yet profound expedient–the doctrine of enumerated powers. In a word, there was simply no power enumerated in the Constitution through which the federal government might abridge political expression. Arguing against the addition of a Bill of Rights in Federalist 84, Alexander Hamilton put the point well: “Why declare that things shall not be done [by the federal government] which there is no power to do?” This amendment would expand federal power in a way the Framers plainly contemplated–and rejected.
It is crucial, however, to understand precisely why the Framers wanted to protect political expression. To be sure, they thought such expression was essential to the workings of a free society: democracy works, after all, only when people are free to participate in the processes through which they govern themselves. But it was not a concern for good consequences alone that drove the Framers: more deeply, they were concerned about the simple matter of protecting rights, whatever the consequences of doing so. The protection of our rights is tested, however, not when what we do or say is popular but when it is unpopular. Stated most starkly, a free society is tested by the way it protects the rights of its least popular members.
Sir Winston Churchill captured well that essential feature of our system when he observed in 1945 that “the United States is a land of free speech. Nowhere is speech freer–not even [in England], where we sedulously cultivate it even in its most repulsive forms.” In so observing, Churchill was merely echoing thoughts attributed to Voltaire, that he may disapprove of what you say but would defend to the death your right to say it, and the ironic question of Benjamin Franklin: “Abuses of the freedom of speech ought to be repressed; but to whom are we to commit the power of doing it?”
When so many for so long have understood the principles at issue today, how can this Congress so lightly abandon those principles? It is said by some that the flag is a special case, a unique symbol. That claim may be true, but it does not go to the principle of the matter: in a free society, individuals have a right to express themselves, even in offensive ways. Once we bar such expression, however, Franklin’s question will immediately be upon us. What is more, we will soon find that the flag is not unique, that the Bible and much else will next be in line for special protection.
It is said also that the flag is special because men have fought and died for it. Let me suggest in response that men have fought and died not for the flag but for the principles it represents. People give their lives for principles, not for symbols. When we dishonor those principles, to protect their symbol, we dishonor the men who died to preserve them. That is not a business this Congress should be about. We owe it to those men, men who have made the ultimate sacrifice, to resist the pressures of the moment so that we may preserve the principles of the ages.
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