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Desecration of the flag

By Greg Pomeroy
web posted July 30, 2001

Flag burningOn July 17, 2001, the House approved a measure by a vote of 298-125 that would shelter the American flag from desecration. This nascent constitutional modification is but a 17-word sentence: "The Congress shall have power to prohibit the physical desecration of the flag of the United States." This measure is of very little measure. The House breathes life into it and gets it on its feet every year or so, and sends it over to the Senate where it hits its head on reality and dies every time. It's expected to die there again. It would need to garner 67 votes in the Senate and then be approved by the legislatures of 38 states. This isn't going to happen, and it shouldn't. Our flag is not a symbol of military strength or national wealth but of individual freedom, and it's never a stronger symbol of that freedom than when it's being weakened by flames.

The House vote was precipitated, as plenty of similar votes there have been in recent years, by the 1989 Supreme Court decision Texas v. Johnson. During the Republican National Convention in Dallas, Texas, Gregory Lee Johnson participated in a protest of the Reagan administration. At the end of the protest Mr. Johnson, according to witnesses, "unfurled the American flag, doused it with kerosene, and set it on fire." For that act, Mr. Gregory Lee Johnson was sentenced to a year in prison and fined $2,000. However, the case was appealed up to the Supreme Court where the justices ruled Johnson's flag burning to be expressive action, i.e. speech, as in the phrase "freedom of speech." His conviction was tossed out and any law passed today that prohibits flag desecration will be tossed out as well.

What Mr. Johnson was charged with is almost as relevant here as what he wasn't charged with. The flag he burned was filched from a flagpole, but he wasn't charged with possession of stolen property. He wasn't charged with starting an open fire in public. He wasn't charged with endangering the safety of others with that fire. He left blackened bits of red, white and blue on the street. He could've been charged with littering at the very least. Punish him for what he did, not what he said.

The amendment passed by the House is seen by many as a legislative attempt to right a judicial wrong, but the measure is destined to end up in the constitutional amendment dustbin alongside such amendment wannabes as an anti-title of nobility measure and a slavery protection measure. And rightfully so because free-range speech is always preferable to speech on a leash, even a constitutional leash. It is the friction of ideas that sparks new thinking. What if the flag burner is right? What if? In cases like this it is the flame of passion that ignites the flag, and it is that passion we should be concerned with, not its byproduct. The potential blister to the First Amendment the House measure would create should repulse us more than blazing nylon and dye.

What's more, we've only gone so far as to alter our Constitution 17 times since the Bill of Rights passed in December 1791. The framers made it extremely difficult to fiddle with the Constitution because, no doubt, they felt they had it just about right and they didn't want their progeny mucking it up. We've given women the right to vote by amendment. We've abolished slavery by amendment. We've changed how the president and vice president are elected and set the minimum voting age by amendment. Do we really want to add a specific restriction to one of our well-established rights to this weighty list?

Furthermore, up and down the list of 27 amendments, our Constitution affirms the rights of individuals, not the rights of government. One conspicuous exception is the 18th Amendment, which forbade a citizen from engaging in the "manufacture, sale, or transportation of intoxicating liquors." A clear limit on the citizens of the United States, this. And more power granted to the government. But, of course, it only lasted 25 years. We can toast the 21st Amendment for that.

It's of interest here that we understand the flag to represent individual freedom, while we see flag desecration as criticism not of that freedom but of the government. It is no wonder then that the government is trying to limit that criticism. The purpose of flag burning is to put heat on our government and makes it sweat, not us; no wonder the House wants to throw that 17-word blanket over the flames.

There is no doubt, though, that many congressmen voted for this measure only because it would've looked so bad to have voted against it. If he had voted against it, it would have looked like the congressman was for desecrating the flag, instead of for the freedom to do so. The difference is mammoth, but easily confused.

More importantly, though, is that if the House measure does extend our Constitution one sentence, we might find ourselves sliding down a slippery slope into a briar of free-speech limitations. If desecrating our current flag becomes illegal, so might desecrating a 48-starred flag or a 13-starred flag. So might desecrating a picture of the flag. So might desecrating a photocopy of the Constitution. And a picture of Abraham Lincoln or George Washington or George Bush. Now I'm not saying that the House measure would necessarily send us on a forced march to Fascistville, but why take one goosestep in that direction? We haven't in our history. Not one legislature, state or federal, has limited our free-speech rights one whit in 225 years. Not one time; not one tittle.

I'll concede that a burning flag gives off little light and that those views it does illuminate are rarely worth viewing. And part of the problem with the issue of desecration is simply our revulsion to it, but when we see someone burn or spit on the flag, we might do well to remember the words of Thomas Jefferson: "(Rebellion) is a medicine necessary for the sound health of government." It may seem we won't ever need that bitter pill, but I feel better, at least, knowing it's there in the cabinet. ESR

Greg Pomeroy is a high school educator and free-lance writer living in Knoxville, Tennessee.

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