July 10, 2001

The U.S. House of Representatives now readies to propose for the fifth time a constitutional amendment banning the "desecration" of the American flag.

Why can't the Congress simply pass a law by majority vote -- why would a constitutional amendment be required?

Because such a law would violate the existing First Amendment to the Constitution, of course -- the one that touches on freedom of speech, while barring the Congress from any legislation concerning "an establishment of religion."

This recycled patriotic tub-thumper dates back to two Supreme Court decisions in 1989 and 1990, in which a narrow 5-4 majority struck down a Texas flag desecration statute after a member of the "Revolutionary Communist Youth Brigade" was convicted of burning an American flag.

What ever happened to the Revolutionary Communist Youth Brigade? No one seems to know, and even fewer care. Assuming the group ever had enough members to fill a phone booth, it's better than even odds most are now Little League coaches with 401(k) plans.

Equally significant is that one also has to go back nearly that far to find anyone committing political flag burning -- the heyday of this particular form of protest having passed with the fall of Saigon.

So why does this bad old penny keep turning up?

Many who support such an amendment -- including veterans who lost buddies fighting under the Stars and Stripes -- are motivated by sincere patriotic feeling. But this is one case where skeptics like Sen. Tom Daschle, D-South Dakota, have it right. "It's our view that defending the Constitution is far more important," Mr. Daschle said the last time the proposal reached the Senate.

"There's no one who wants to protect constitutional freedoms as much as I do," declared Rep. Jim Gibbons, R-Nevada, last week. But "burning an American flag is the same as a hate crime. It is contemplating the overthrow of this government, of the symbol this government stands for."

It's saddening to have to point out that this statement from the usually sensible Rep. Gibbons is buffoonery of the first order, on several counts:

First, to perform the symbolic act of flag-burning is not the same as advocating the overthrow of the government -- quite to the contrary, it can be sensibly argued one of the reasons no one has ever seriously tried to overthrow this government (even old Jeff Davis would have been content to let the North continue to misgovern itself as it pleased) is that we allow the self-corrective safety valve of free political criticism.

Second, even if flag-burning could be incontrovertibly demonstrated to mean "I believe the U.S. government should be overthrown" ... so what? In America, it's perfectly legal to say even that ... a crime occurs only if the desperate or deluded soul then gathers with others to set a conspiracy in motion through overt acts, such as blowing up buildings or planning assassinations.

Third, legislation which asks juries to read the mind of an offender, awarding extra penalties if their crystal balls instruct them the culprit's motive was "hate," are themselves constitutionally dubious on their face.

And last, sadly, it turns out there are many who "want to protect constitutional freedoms" more than Mr. Gibbons does -- starting with all those who oppose this frivolous amendment.

Because the contention that flag burning ("desecration," as the sponsors would have it) is not an act of political speech just won't hold water.

The root of the word "desecration" is the word "sacred" -- "consecrated to or belonging to the divinity or a deity; holy." But there is no organized religion which actually worships the American flag or believes it was handed down to man directly by the Creator, like the tablets of Sinai. And if there were, Congress would in turn be specifically banned by the First Amendment from "establishing" such a religion -- that is to say, from requiring adherence to its beliefs or edicts under penalty of law.

Suppose this onanistic amendment is enacted, whereupon an elderly school custodian takes down his tattered and faded example of Old Glory, carries it to the basement, and soberly destroys the worn old banner in the school furnace.

Would he be charged with a crime? Of course not. That's the proper and recommended way to dispose of an old flag.

So it's not the physical act of burning a flag that would be banned, but only the political content of flag burning, as an act of protest.

That is to say: only the part protected by the First Amendment. Right Mr. Gibbons?

Yes, flag burning is an act designed to express -- and generate -- outrage. Is it really so unthinkable that our federal police might do something under the red-white-and-blue to which an appropriate response might be an expression of outrage? And once we've gone this far, what other "outrages" shall we next ban by popular acclamation? Some of our more "dangerous" churches? Newspapers? Internet sites?

On the bright side, so unlikely is this measure to gain two-thirds support this time around, that it appears the Senate won't even bother to schedule a vote.

Good.

Vin Suprynowicz is assistant editorial page editor of the Las Vegas Review-Journal. Subscribe to his monthly newsletter by sending $72 to Privacy Alert, 561 Keystone Ave., Suite 684, Reno, NV 89503 -- or dialing 775-348-8591.  The web sites for the Suprynowicz column are at http://www.infomagic.com/liberty/vinyard.htm, and http://www.nguworld.com/vindex.

"When great changes occur in history, when great principles are involved, as a rule the majority are wrong. The minority are right."

-- Eugene V. Debs (1855-1926)

"The whole aim of practical politics is to keep the populace alarmed -- and thus clamorous to be led to safety -- by menacing it with an endless series of hobgoblins, all of them imaginary."

-- H.L. Mencken