"If the flag needs protection at all, it needs protection from members of Congress who value the symbol more than the freedoms that the flag represents." — U.S. Rep. Jerrold Nadler, D-N.Y., speaking on the floor of the House on Wednesday (quoted by the Associated Press).
The Bill of Rights is the lodestar that has guided us through nearly 214 years of our history.
It is the script on which our freedoms are built, the blueprint of our democracy.
That's what makes the passage on Wednesday of a resolution calling for a constitutional amendment that essentially would rewrite the First Amendment so troubling.
The amendment — a bare, one-line that reads "The Congress shall have power to prohibit the physical desecration of the flag of the United States" — has been floating around in one form or another for more than 15 years, since the U.S. Supreme Court held in Texas v. Johnson that flag-burning is symbolic speech protected under the First Amendment.
For the Constitution to be amended, the resolution has to be approved by more than two-thirds of each house of Congress and more than two-thirds of the states, either by legislation or via public referendum. The House approved the resolution on Wednesday by a 286-130 vote.
Now, the ball is in the hands of the Senate, which has failed to back a flag-burning amendment on seven occasions in the past. But, as the AP notes, the amendment failed by four votes in 2003, the last time it came up — the exact number of seats picked up by the Republican Party in November. Republican senators have been supportive of an amendment in the past. The Senate, according to the AP, expects to consider the measure after the July Fourth holiday recess.
That gives members of the Senate about two weeks to consider whether they want to be judged by history as the first American legislators to carve out exceptions to the First Amendment.
In its Johnson decision, the Supreme Court confirmed what First Amendment purists have always believed: namely, that the burning of a flag is symbolic speech. Symbolic speech, no matter how offensive it is to the general public, is protected.
The basic idea underlying the First Amendment is that unpopular and dissenting views would be guaranteed a hearing in the marketplace of ideas. The Founding Fathers had feared that a majority could use its control of the federal government to impose its beliefs on the minority, to punish its speech and limit its ability to fight back.
That fear led James Madison and his colleagues to draft a series of amendments designed to protect citizens from the potential excesses of their government — hence, the Bill of Rights.
Since its final passage in 1791, the Bill of Rights — which encompasses the first 10 amendments — has not been altered, even when the protections it codifies have fallen out of fashion.
The proposed flag-burning amendment would change all that.
I should be clear here that I do not advocate the burning of American flags. I also do not endorse the Nazi Party or the Communist Party U.S.A. But I believe their members have the right to express their ideas and I will defend their right to do so just as strongly as I will use my own speech to oppose their ideas.
"We can imagine no more appropriate response to burning a flag than by waving one's own," the court wrote in its majority opinion in the Johnson case. It went on to further say that the best "way to preserve the flag's special role is not to punish those who feel differently about these matters. It is to persuade them that they are wrong."
John S. Keating, a Massachusetts attorney, reminded readers of just that in an essay posted on the Washington, D.C.-based Freedom Forum's Web site:
"In 1976, a crowd at Wrigley Field in Chicago actually burst into a spontaneous rendition of 'God Bless America' when two protesters ran onto the field and tried to burn a flag," he wrote. "How utterly, beautifully American a response!"
What's important to remember is that the flag stands as a symbol of the freedoms we sometimes take for granted, which include the right to use the flag in a symbolic manner. It is, as Paul K. McMasters, a former journalist and the First Amendment ombudsman at the Washington-based Freedom Forum, wrote in the fall, "a communicative presence unparalleled in its eloquence."
"It expresses pride, passion and patriotism," he wrote, "whether held high in battle, presiding solemnly over state occasions, or helping raise a citizen's voice in praise or protest."
Because of this, he says, the burning of the flag is an act of political speech protected by the First Amendment.
"It is a uniquely American right to speak through our flag," he wrote. "It is not the government's right to prohibit or punish such speech, regardless of its intent or message. Nor is it the majority's right to silence that speaker.
"It would be uniquely un-American to erase this revered principle from our democratic heritage."
Hank Kalet is managing editor of the South Brunswick Post and The Cranbury Press.
© 2005 Cranbury Press