Protect Even the Ugly Protest : Why an Amendment Is a Defeatist Move

This week, the House of Representatives will take up the question of whether the Constitution of the United States ought to be amended so that Congress and the states may prohibit vandalism of the American flag.

Any debate of fundamental constitutional protections imposes special obligations: partisanship must give way to principle; passion, however deeply felt, must be subordinated to that right reason which gave the Framers the courage to put their faith in human liberty. If those conditions are met this week on the floor of the House--and it would be an unforgivable breach of duty if they were not--then this attempt to alter the First Amendment of the Bill of Rights will be turned back as it has been before.

The issue has arisen because, over the past two years, a handful of inconsequential extremists, still clinging to the tattered fringes of the lunatic left, have discovered that while no one has the slightest interest in their ideas, they sometimes can attract the authorities’ attention by burning flags. Twice in the past year the U.S. Supreme Court has been forced to declare unconstitutional the laws under which flag-burners have been prosecuted. As Justice William Brennan wrote for the court in the most recent of those decisions, “while flag desecration . . . is deeply offensive to many, the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.”

That is as succinct and clear a statement of the First Amendment’s guarantee of free speech as anyone ever has framed. The charter of which it is a part is the most majestic and flexible blueprint for the practical realization of basic human rights and liberties ever devised. Today, 201 years after James Madison first introduced it on the floor of Congress, it continues to stir the hearts of men and women from Prague to Santiago, from Warsaw to Beijing. It has survived without alteration both civil and foreign wars, Depression and social change unimagined by those great men who wrote it and, most recently, half a century of external confrontation with both right- and left-wing totalitarianism. It cannot be said by any reasonable person that the threat to the national well-being posed by flag-burners--if it exists at all--equals in the faintest way any of these challenges.

But let us suppose, for a moment, that the opposite is true. Let us assume that the flag-burners among us are more than just a trifling handful of clownish exhibitionists with an unpleasant penchant for vulgar public tantrums. Let us suppose, instead, that they are what they imagine themselves to be: revolutionaries intent on the destruction of this republic. What a bitter irony it would be, if the Congress of the United States were to hand such people a victory they never could have won for themselves--the subversion of our Bill of Rights.