Are Americans more interested in protecting the symbol of freedom or the freedom the symbol represents? The Supreme Court addressed the question recently and wisely ruled that flag burning, though odious, was protected under the Constitution. Now Congress is now revisiting the matter with an unfortunate amendment that, in its effort to override the high court, would dilute the Bill of Rights for the first time since the founding of the Republic.
The flag-burning measure, which gives federal and state authorities the explicit power "to prohibit the physical desecration" of the flag, cleared its first hurdle when it gained approval in the House earlier this year. To become an amendment to the Constitution, however, it must still garner the necessary two-thirds vote in the Senate and approval by two-thirds of the nation's state legislatures.
Current indications are that the measure will pass, at least if the states have their way. Forty-nine are on record as supporting it. Yet there are important reasons why the Senate and state legislators should resist any effort to approve what, in effect, is a footnote on the Bill of Rights.
This is not to say that the flag lacks a strong meaning in this country. Or that Americans, particularly veterans who have fought under the Stars and Stripes, should condone deplorable behavior that sullies an important symbol of our principles and our national identity.
The flag is part of our nation. But so too, it should not be forgotten, are the rights enumerated in the Constitution, the document that, unlike symbols or emblems, is the foundation of our national heritage.
In 1989, in the case of Texas vs. Johnson, the Supreme Court held that the act of setting fire to an American flag was expressive speech and protected under the First Amendment. In the decision, Justice William Brennan wrote: "If there is a bedrock principle underlying the First Amendment, it is that government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable."
Let there be no mistake about it. An amendment to the Constitution for the purpose of outlawing an act of political expression, by what in this case is an infinitesimal number of obnoxious protesters, is not patriotism. It is a sign of national insecurity. And worse, it sends a dangerous signal that we are willing to compromise bedrock liberties to make what are essentially political or emotional statements.
Congress takes an oath to the uphold the Constitution--not the flag. And the Senate, which moderated many of the impulsive decisions of the lower house, would do well to remember that fact.