Here’s a Thought: Flag Amendment Is a Bad Idea

The House of Representatives has passed a proposed amendment to the Constitution that would allow Congress to impose criminal penalties upon those physically desecrating the American flag. The standard arguments against such an amendment are driven by the traditional American protection of political speech under the 1st, 9th and 14th amendments and, more broadly, under the natural law doctrines of the Declaration of Independence. Opposition recognizes as well the dangers inherent in the introduction of politically-inspired exceptions to the general protection of individual liberties.

That standard argument is correct as far as it goes, but it does not go far enough. It is a matter of long-standing tradition for torn or soiled American flags to be burned, an act reflecting solemn respect. That respect is fundamentally a political statement. The only difference between that act and the burning of a flag by a protester is the nature of the political statement, or, more precisely, the thought that goes through the individual’s mind when he strikes the match. In short: A law imposing criminal penalties for the physical desecration of the flag seeks literally to outlaw a particular thought.

Many liberals opposing the proposed amendment--always so smug in their purported concern for individual liberty--make precisely the same error in their support for laws imposing relatively heavy penalties for “hate” crimes. Consider two individuals assaulted while walking along a road. The first is attacked because the assailant is in a bad mood; the second is attacked because of the color of his skin. The respective criminal acts are identical. The respective injuries to the victims are identical. The only difference in the two cases--literally--is what the assailants were thinking. “Hate” legislation--as well as the larger dogmas of political correctitude--seeks to penalize a particular set of thoughts.

Clearly, it matters more to individuals if a vandal spray-paints upon a synagogue a swastika, as opposed to “Joe was here.” The burning of a flag as a symbol of the community matters differently than the burning of a pile of leaves. But law can make such distinctions only crudely if at all; would it be “hate,” say, to attack someone because of the color of his hair? Such laws inexorably must make distinctions based largely or solely on the nature of particular thoughts, and the criminalization of such thoughts, however worthy of contempt, represents a very real step toward a world of totalitarianism.