The House of Representatives is again calling for a constitutional amendment to ban flag-burning. The Supreme Court of the United States has stated quite clearly that the burning of the flag -- a despicable act to be sure -- is nonetheless a method of political expression that is protected by the First Amendment.
Which makes perfect sense. We all know that "speech" can involve more than words. We're told that cab drivers in New York carry on entire conversations with each other using nothing more than their fingers.
And if burning a flag were not a method of political speech, it wouldn't have the ability to get people so upset. And if it didn't get some people upset, other people wouldn't do it. It's a very emotional thing, which is exactly why it shouldn't be the subject of a constitutional amendment.
The Bill of Rights, those first 10 amendments that protect our freedom of speech, our right to bear arms, our right to be secure in our homes, our rights to due process, against self-incrimination and to a trial by jury were ratified in 1791, and in 210 years not one of them has been amended.
Eugene Volokh, who teaches law at the University of California, made an interesting point in the Los Angeles Times the other day. Suppose the amendment were worded: "Congress shall have power to prohibit the physical desecration of the flag of the United States and to prohibit the flying of the Confederate flag."
We wonder how many votes the amendment would have lost. But it makes perfect sense. If the flag's integrity must be protected against desecration, why not protect it as well against the flying of counterfeit flags, flags that send a message other than that conveyed by Old Glory?
Sending signals: Some flags send powerful messages, both good and bad, and the freedom of an individual to send such messages is worth preserving.
Of course, seeing the desecration of an American flag is upsetting to most people (though nowadays the burning is almost always being done in far away lands, and the amendment would have no effect on that). And seeing a Confederate flag, or a swastika or the rising sun flag of Japan has an upsetting effect on some people.
But the Constitution, though it is based on the principles set forth in the Declaration of Independence, that we have the right to life, liberty and the pursuit of happiness, cannot be used to guarantee us comfort. It is not the job of the Constitution to muffle the mouths or bind the hands of those who might say or do something that makes us uncomfortable or even that disgusts us.
The Senate, as it has in the past, should provide the cooler heads in the legislative process and should kill this amendment before it does more harm to the freedom the flag stands for than it would do good for the flag itself.