An election-year Fourth of July is upon us, and so it is that a proposed flag-burning amendment to the Constitution is upon us. Senate GOP leader Bill Frist of Tennessee has called up the amendment for debate this week with a vote likely just before the Senate knocks off for the Fourth recess. Congress has tried to shimmy up this flagpole
Several times since the Supreme Court ruled burning a flag in protest is protected free speech. But the danger this time around is that the amendment actually could be approved by two-thirds of the senators — it has already passed overwhelmingly in the House — and ultimately be ratified by the states.
As a feel-good political issue, flag-burning is hard to beat, but constitutionally outlawing it will chisel away at the greatest of the amendments to that document, the First. Said the Senate’s No. 2 Republican, Mitch McConnell of Kentucky, over the weekend: “I think the First Amendment has served us well for over 200 years. I don’t think it needs to be altered.”
The proposed amendment simply says that Congress can prohibit physical desecration. But then matters quickly get not so simple. What precisely is “desecration”? Flag tank tops? Born aloft in a neo-Nazi parade? Formed into an Uncle Sam hat with beer cans attached? The flag has easily withstood this sort of questionable use.
As a practical matter, flag burning is so rare as to be close to nonexistent and hardly rises to the level of a national problem. The flag is a lot stronger than its would-be defenders give it credit for; in its symbolism of our national ideals, the flag defends the right to revile it.
After 217 years, we do not need a 28th amendment diluting the First.