THE WHITE HOUSE supports the wrongheaded constitutional amendment that would give Congress the power "to prohibit the physical desecration of the flag of the United States." Yet in light of an incident last month, Mr. Bush should consider whether he might be the first person jailed should this perennial foolishness -- passed most recently by the House of Representatives earlier this year -- ever become part of the Constitution. Mr. Bush, at a political event in Livonia, Mich., autographed supporters' flags, an apparent violation of an obscure provision of American law that details the respect with which flags should be treated. "The flag," reads the code, "should never have placed upon it . . . any mark, insignia, letter, word, figure, design, picture, or drawing of any nature." The last time Congress sought to ban flag-burning, in a statute the Supreme Court struck down in 1989, it made a criminal out of anyone who "defaces" a flag -- language Mr. Bush likewise appears to have violated. Never mind the fact that he clearly meant no disrespect; if Congress had the power to criminalize flag desecration, he would at least arguably be indictable.

We say arguably because there's no telling what "desecration" actually means. The proposed amendment is meant to deal with flag-burning, but what about that American soldier who, in a moment of unadulterated patriotism, wrapped a flag around a statue of Saddam Hussein? What about a person who proudly wears a ripped T-shirt displaying the flag? Of course, such cases would never be brought in court. The amendment, in practice, would be used to punish only unpopular political expression, expression that, though sometimes odious, is today unambiguously protected by American constitutional law -- as it should be. But the notion that the president, or anyone, could be charged with signing a flag should not be even arguable. It should be laughable -- as it would be if politicians such as Mr. Bush had the guts to stand against constitutional pollution rather than pandering to it.

© 2003 The Washington Post Company

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