Once again, it falls to the U.S. Senate to put the brakes on what would be an ill-advised amendment aimed at prohibiting flag burning.
It becomes necessary at this point in any discussion of this amendment to declare that we are not endorsing flag burning, that we find it to be an act that is at once disrespectful, rude and counterproductive. Burning a flag shows disrespect to a historic symbol of the nation, it is rude (to say the least) toward other citizens who hold the flag dear and it is counterproductive because no serious discussion of a political issue ever took place by the light of a burning flag.
That said, we find the movement to amend the Constitution to prohibit even so odious an act as burning the flag to be a bad idea. The Bill of Rights, those first 10 amendments to the Constitution, were among the most important provisions of law ever enacted.
Setting the standard
The Bill of Rights establishes a standard for freedom of individuals and protection against government intrusion like none that came before it -- and none that has come since.
Our sense of ourselves as free Americans derives largely from the Bill of Right. Those amendments allow us to speak our minds, to worship as we please, to arm ourselves, to feel free from government intrusion in our homes, to know that we cannot be jailed without a trial, and that we cannot be forced to testify against ourselves.
The Bill of Rights has stood the test of time and no part of it has been amended since ratification 214 years ago.
Last week the House voted 286 to 130 on a proposed constitutional amendment that would allow Congress to outlaw flag burning as a form of political protest. The House has passed such measures before, only to have them fail to receive the the-thirds majority needed in the Senate to continue the ratification process.
The Senate vote this time will be a close as ever, given the nature of politics today and the fear of any elected official to appear to be soft on patriotism in a time of war.
To be sure, there is nothing patriotic about burning a flag. But there is nothing patriotic, either, about gutting the First Amendment.
Making a statement
There is no question that the way we treat a flag amounts to a statement of our beliefs. Those who fly it proudly (and properly) want people to know that they love and respect this nation and what it stands for. Those who burn it want people to know that they are upset with the nation's policies and angry with some aspect of its behavior.
In between those clear-cut expressions of opinion are those who use the flag for purely commercial purposes, those who use it to make a fashion statement, those who fly it tattered and torn from flag poles or auto antennas. If the Constitution is to be amended and laws passed to protect the flag against desecration, where will the line be drawn between what is legal and what is illegal?
What does it say about a nation if it allows slovenly or avaricious abuse of the flag, and outlaws only that abuse that could be interpreted as politically incorrect?
The flag-burning amendment is a politically popular, but ill-conceived proposition. It would be impossible to fashion such an amendment that would not be given to subjective and widely varying interpretations -- which makes it a decidedly bad thing to enshrine in a constitution.
It is an amendment without a demonstrable need. It is not as if there were an epidemic of flag burning in this country.
Finally, it would be only the second amendment to the Constitution specifically aimed at taking away the rights of the citizenry. The first was the 18th Amendment, aimed at keeping people from being able to buy or sell intoxicating liquors. That one didn't turn out well.