Politics, they say, makes strange bedfellows, but that’s nothing compared to constitutional amendment. A few weeks ago, I found myself testifying before the Constitution Subcommittee of the House Judiciary Committee, and on the panel with me, testifying in favor of the Flag Protection Amendment, were a former Miss America, a holocaust survivor, an African-American bishop, and a major general (the president of the Congressional Medal of Honor Society, no less).
All of us were trying to convince two-thirds of the House to approve an addition to the Constitution stating that “Congress shall have the power to prohibit the physical desecration of the Flag of the United States.” The amendment has the support of 80 percent of the American people, it has been requested by 49 of the state legislatures, and it would pass in a heartbeat, if it ever got out of Congress. The requisite three-quarters of the state legislatures would approve it, and it would become the 28th Amendment. The House of Representatives has already passed the amendment twice by the necessary two-thirds vote, but it failed by three votes in the Senate two years ago, and the Democratic leadership prevented it from reaching the Senate floor for a vote last year.
It’s a small amendment, but, to paraphrase Daniel Webster, there are those who love it. There are also those who hate it. It has been virulently damned by virtually the entire media and the entire professoriat, who see it as a threat to the First Amendment. Opponents take the same position as did the Supreme Court in the dubious Texas v. Johnson case of 1989, when, by a bare five-to-four majority, it ruled for the first time in our history that burning the flag was speech protected by the First Amendment, and struck down all laws banning flag desecration. Congress tried to draft a statute to meet the objections of the Court, but the federal law was struck down a year later. The Court then made clear that no statute could prohibit flag desecration since, in its view, the flag stood for the right to burn it.
Texas v. Johnson represents the jurisprudence of self-actualization run amuck, and it is of some significance that even Earl Warren and Hugo Black— perhaps the greatest liberal and the greatest First Amendment absolutist ever to sit on the Court—both believed that there was an easy distinction to be made between flag desecration and speech. All the Flag Protection Amendment seeks to do is to overrule Texas v. Johnson and return to the jurisprudence of Warren, Black, and 100 years of constitutional precedent, but its opponents see the amendment as a dagger striking at the heart of free speech.
It’s widely believed in the media that the amendment is an invention of unscrupulous politicians who think they can score cheap points by wrapping themselves in Old Glory. Curiously, the truth is exactly the opposite. It takes a considerable amount of courage for a politician to support the amendment because the media happily crucifies anyone who seeks to protect the flag, immediately tarring him or her as an enemy of free speech. Since politicians live and die by favorable press, it takes all the persuasive powers that a panel such as the one I was on can muster to keep congressional support for the amendment alive. Even more important is the persistence of the grassroots movement, particularly of roughly 150 veterans’ groups and service organizations who have joined in the Citizens Flag Alliance, who have tirelessly advocated the amendment for ten years, and who assembled the panel.
The amendment is an important front in the nation’s ongoing culture war. The forces of tradition, virtue, and morality, which have enlisted on its side, suffered a crushing defeat in the Senate trial of the Clinton impeachment charges, and they are hoping to regain some lost ground. Those who back the amendment seek to remind us that responsibilities are as important as rights, and they believe that the people have a right to express this principle by protecting their flag. Those who oppose the amendment fight for the notion that individual free expression is what America is all about, that nothing should be officially sacred, and that we should glory in the fact that we allow our most precious symbol to be trashed with impunity.
There have been about 50 acts of flag desecration since the Johnson decision; the most dramatic—an act of defecating on the flag—was recently ruled by the Wisconsin Supreme Court (following Texas v. Johnson) to be speech protected by the First Amendment. When the flag has officially been declared a permissible rumpswab, it would seem something has gone very wrong.
My own view (and, I would think, the view of Burkean traditionalists) is that the Flag Protection Amendment ought to be supported because of its implicit acknowledgment that duty and deference are the foundation of any society, and that liberty unchecked too quickly becomes license. There are those who support the amendment, however, simply on the basis that, if that’s what the people want, then that’s what they should have, and there’s surely something to that. Though one lesson of the Clinton presidency is that we must guard against demagoguery and poll-driven policy, the fact remains that popular sovereignty is the basis of our society. The Constitution begins with the words, “We the People,” but too many of the people now feel as if they have lost the Constitution to a Supreme Court bent on rewriting it. The Flag Protection Amendment, in sending a shot across the bow of the Supreme Court (as one brave law professor at the University of Texas put it), might remind the Court who really is supposed to be governing in this Republic. If that’s what Miss America, the general, the bishop, the survivor, I, and 80 percent of the American people want, shouldn’t we have it?
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