The Constitution, the Flag, and Fire

OK, nominally this blog is supposedly about education. But school’s out, I don’t have any urgent education-think to lay out there, and there are other issues that speak to me. Today it’s about the so-called “flag burning amendment”. For those who object to political content bleeding into “neutral” areas, I’ll quarantine it behind a “Read the rest of this entry…” link.

Yesterday the United States Senate rejected an amendment to the Constitution prohibiting “desecration” of the flag of the US. It failed not only by the smallest margin ever, but by the smallest margin possible: a single vote. We came to within one vote of — for the first time in histroy — abridging the freedoms set forth in the First Amendment. That’s scary. This amendment is a bad idea on both pragmatic and fundamental grounds.

Pragmatically, flag-burning is simply not a common offense right now. Indeed, just about the only Americans who burn flags are those protesting the flag-burning amendment. Reliable estimates put the number of American flags burned in the US to be a handful a year, probably fewer. Meanwhile, the American people face a quagmire abroad, an imperial presidency at home, stagnant wages, spiraling healthcare costs, and the degradation of the environment — not to mention actual terrorist threats. Surely this litany of concerns together (or indeed any one of them) ranks more highly than this phantom issue.

Even if the Republicans were acting from the highest of motives; even if there was a rash of flag-burning in the streets of our cities — even then, this amendment would be wrong. It is a terrible thing to tamper with the Constitution lightly. In 220 years, we have seen fit to modify it only twenty-seven times. And looming above all of that is the Bill of Rights, perhaps the most important political writing in the history of humankind. The first ten amendments to the Constitution are a blueprint for freedom. They should be considered sacrosanct.

Of these amendments, none is more important than the First. At the heart of the First Amendment is the right to freedom of expression. Although some people disingenuously claim this is not about political speech, it clearly is. If it were not, then Congress would be empowered to enact a law (as happened prior to 1989) to prevent it. But because such a law is necessarily a restriction based on the content of the speech, it is banned. After all, it is not the burning of the flag that is truly at issue. Boy Scouts burn the flag every day. The US Code indeed requires this as the only respectful way to dispose of a flag. So the action is not the issue. The intent behind it is — the attempt to show scorn for the United States or its government by defacing a symbol of it. But a free society must not ban expression based on content. No one can judge a priori what is “legitimate” and what is “fallacious” in the free market of political ideas.

Political dissent is often distasteful or even disturbing. But in a free society it is also vital, something to be welcomed. Is it right for an American to burn the flag? No. Does that American have the right to burn it? Yes. You may heap scorn, derision, and opprobation on him for exercising that right. You may loudly condemn him. But you must engage him, not incarcerate him. Only then will there be meaning to phrases like “land of the free”.