The Supreme Court, in the case of Johnson v. Texas, arrogated to the federal government the power to decide that all states must allow the public burning of the federal government’s flag. This decision clearly contradicted both the near unanimous understanding of previous Supreme Court justices, including such constitutional nihilists as Chief Justice Earl Warren and Justice Hugo Black, and the much-maligned “original understanding” of the issue.

Regarding the “original understanding,” two of the three leading Federalist delegates to the Virginia ratification convention, Governor Edmund Randolph and George Nicholas (James Madison’s chief spokesman), explicitly told their fellow delegates that the instrument by which they proposed to ratify the Constitution would leave future Virginians the power to reclaim their entire delegation of authority to the new government in the event that the federal government undertook to intervene in speech-related matters in any way. James Madison and John Marshall, two of the other four members of the committee that reported the ratification instrument, sat mute through this explication—thus signaling their assent.

Stephen B. Presser (Cultural Revolutions, June) suggests that the proper response to decisions such as Johnson is not nullification or secession, but granting new powers to the federal legislature. That is exactly what his proposed amendment, which would give Congress alone the states’ pre-Johnson power to ban public disrespect of the flag, would do. Surely, this is rewarding the fox for raiding the henhouse! Under Article III, Section 2, of the Constitution, Congress already can divest the Supreme Court of effective power in this area by simply stripping it of jurisdiction over appeals in cases involving the flag; the federal legislature should not be granted a new quantum of the states’ reserved sovereignty for failing to check judicial legislation.

There is another—and better—reason not to endorse a “flag desecration [sic] amendment”: The flag is not sacred. I can think of dozens of things one might hold sacred: Orthodox icons, the Holy Bible, the Cross of Christ, relics of the saints, the writings of the Fathers of the Church, collections of the lives of the saints, etc. To have only one thing, and that the symbol of the federal government, recognized as “holy” by the federal government is really too much. It is simple blasphemy, as is any reference to “desecration” of the federal flag.

I am sure that Dr. Presser is animated by the best motives. Seeing yet more overreaching by the federal judiciary, he thinks, “Why not start to fence the judges in here?” I answer: Why not simply defend the states’ reserved right to legislate exclusively in all matters such as this?

        —K.R. Constantine Gutzman
Charlottesville, VA

Dr. Presser Replies:

K.R. Constantine Gutzman’s points are well taken, and I agree that the growth of the federal leviathan and the diminishment of the constitutionally guaranteed powers of the states are important issues which ought to be addressed. Nevertheless, I part company with him over the suggestion that passage of the Flag Protection Amendment would exacerbate the problem. He appears to believe that passing the amendment would give Congress a power to regulate speech which it did not before possess, but the point is that flag desecration is not speech, never has been, and never will be. He is correct that, before the 1989 Johnson decision, the states—as well as the federal government—had laws against flag desecration; the amendment would only restore the federal government’s power in this regard. Like him, I would favor a measure that restored the pre-1989 powers of the states as well, but I’m willing to settle for this particular amendment at this time.

Passage of the Flag Protection Amendment would reward the efforts of the 49 state legislatures which have petitioned Congress, and the amendment would, in the end, have to be ratified by the state legislatures, acting for the people of their states. The measure is a reaffirmation of grassroots popular sovereignty, and it would be brought into the Constitution ultimately by the actions of the states, so I see the amendment as a reinforcement of the people’s power to control their Constitution through their state governments.

A more delicate matter is Gutzman’s assertion that “the flag is not sacred.” The pieces of cloth themselves are not sacred, of course, but what the flag represents to many Americans—the sacrifice of the lives and limbs of loved ones to preserve American liberty—is surely sacred, in the same sense that the signers of the Declaration pledged their “sacred” honor. No society that has ever survived has not held some aspects of nationhood sacred, and about 80 percent of the American people, led by their veterans organizations, seem to be showing this by their support for the amendment.

Finally, I appreciate Gutzman’s suggestion that those of us who support the amendment are “animated by the best motives,” in particular reigning in an overreaching federal judiciary. While Gutzman sees the Flag Protection Amendment as “rewarding the fox for raiding the henhouse,” I see it rather as using the federal government for an appropriate purpose —to restore a liberty lost to the American people to preserve and protect the national symbol and properly to glorify the sacrifice of those who fought for our way of life. An important aspect of that way of life, which Gutzman and I would both agree the Bill of Rights was designed to protect, was self-government, principally through state and local bodies. We would also both agree that the federal courts have, of late, often failed to understand this, as they have often failed to understand that in our society responsibility (and self-government) are as fundamentally important as individual rights. I am not yet ready to see nullification or secession as the preferred means of bringing the federal courts back to where they should be, and I think, for now, that the people should have an opportunity to take back their Constitution through amendment. That was the original plan of Washington, Hamilton, Madison, and Jay, after all —that the Constitution ought to be preserved and protected by amendment—and we honor their memory by making the effort.