Post
Monday, June 27, 2005; A14
ONCE AGAIN, THE House of Representatives has voted to send to the states for
ratification a constitutional amendment giving Congress the power to prohibit
the "physical desecration" of the American flag. The vote is a ritual in the
House, a political debasement that would be beneath denouncing except that the
amendment might pass someday and even this year. The cooler heads who have
always prevailed in the Senate are less numerous. Amendment supporters in the
Senate are dangerously close to having enough votes. Only a few senators have to
buckle to the intense political pressure to support this desecration of the
Constitution or not show up for the vote. The flag-burning amendment will move
out of the category of inane legislative posturing in which it has lurked since
the Supreme Court rightly declared burning the flag to be a form of
constitutionally protected speech. Such an amendment would be offensive even if flag burning were a kind of
expressive epidemic. But the problem the amendment purports to address is a
fiction. When was the last time you saw someone burning a flag? If the answer is
never, that's because it hardly ever happens. In fact, one of the few certain
consequences of passing this amendment would be to make flag burning a
fashionable form of protest. The other effect would be to water down one of the most profound principles
that the Constitution articulates: that Congress shall make no law . . .
abridging the freedom of speech. The great power of this principle is that it
admits no exception: not for the most odious racism or Holocaust denial, not for
the most insulting criticisms of those in high office, not for cone-shaped white
hoods or hammers and sickles, and not for burning or otherwise defiling the
Stars and Stripes. Passing this amendment probably wouldn't create a great
substantive shift in the general scope of the First Amendment's protection, but
it would sap it of the idea that gives it its power: that American government
does not punish even the most offensive ideas. Congress does the flag no service
with such protection.
