One Amendment We Don’t Need

Congress has now taken the first major step toward overturning the 1989 Supreme Court ruling that flag-burning is a protected form of speech, with the House Judiciary Committee endorsing a constitutional amendment to give Congress and the states “power to prohibit the physical desecration” of the U.S. flag.

Support for that amendment by the necessary two-thirds of the House and Senate is all but certain, and 49 state legislatures are already on record as favoring its adoption. And so for the first time since it was ratified in 1791, the Bill of Rights faces basic legislative revision, specifically to dilute the guaranteed right of free speech that--by no accident--is given legal primacy in the Constitution’s First Amendment.

Is this proposed weakening of a fundamental right really necessary? The flag, a special symbol of national identity, of course evokes strong patriotic emotions. That’s exactly why a small number of protesters in a handful of recorded cases in recent years made it a point to publicly insult it. But should such contemptible disrespect be seen as imperiling the basic fabric of American life? Are we as a people so insecure in our love of country and esteem for its institutions that we let the childish behavior of a few justify the profoundly serious and worrying step of eroding one of the Constitution’s most noble and vital protections?

The amendment represents a gross overreaction to an irritating, offensive but hardly security-threatening form of expression. Worse, its imprecision would inevitably invite inconsistent and ultimately dangerous legislative interpretations of just what “desecration” means and how it should be punished. Worst of all, no matter how few persons or incidents it may ever be specifically applied to, this amendment’s purpose in diminishing a cherished protection of several centuries’ standing implicitly saps the rights of all Americans.

“We do not consecrate the flag by punishing its desecration,” wrote Justice William J. Brennan Jr. for the Supreme Court majority six years ago, “for in so doing we dilute the freedom that this cherished emblem represents.” Nor do we honor America when, in the guise of patriotic fervor, we expediently allow principles that are the bedrock of our liberties to be compromised.