Sten Gazette

There is very little doubt that the flag burning amendment (more properly, “the flag desecration amendment”) will become a part of the Constitution. We’ll talk about the history of the amendment and summarize the main arguments against it. The history of the amendment will, all by itself, explain why this bad idea is to all intents and purposes a fait accompli.

Here is the full text of the flag desecration amendment:

The Congress shall have power to prohibit the physical desecration of the flag of the United States.

The flag burning amendment has its roots in the demonstrations against the Vietnam war in the 1960s. Many protesters felt so strongly that the war in Vietnam was so wrong, so fundamentally un-American, that burning the flag was the most effective way of demonstrating their feelings. It certainly was effective because Congress passed (and President Nixon signed) the Flag Protection Act in 1968. Subsequently forty-eight of our 50 states passed similar laws. All of these laws were struck down by the Supreme Court in 1989. Congress immediately passed a revised Flag Protection Act, which was struck down by the Supreme Court in 1990. In both cases, the Supreme Court’s decision rested on a bare 5-4 majority.

Each Congress since 1989 has considered a flag-burning amendment. Beginning with the 104th Congress in 1995, the House of Representatives has passed the amendment with the necessary two-thirds majority. The Senate, however, has balked every time. But when it has been voted on, the Senate has come very close to passing it with the required 67-33 supermajority.

In the 104th Congress, it failed with a vote of 63-36

In the 106th Congress (2000), it failed with a vote of 63-37.

In the 105th and 107th Congresses the act failed to come to a vote

And of course it has only just been passed by House in the 108th Congress, but all else being equal it stands a much better chance of being passed by the Senate this time.

There is virtually no chance that the amendment will fail to be ratified by the states. Subsequent to the 1990 Supreme Court decision, the point at which it became apparent that the only way to ban flag-burning was to amend the Constitution, the legislatures of all fifty states have passed non-binding resolutions calling upon Congress to initiate a flag-burning amendment.

Obviously, at lest two thirds of Americans are in favor of the amendment. So what could possibly be wrong with it? Apart, that is, from the generally overlooked fact that the American Supermajority required to amend the Constitution has got it wrong before! Anybody remember Prohibition? What about women and the Equal Rights Amendment? Was there anything in the Constitution before the ERA that prevented the extension of equal rights to women? The Constitution was intended to be a living document, but we have indeed changed it trivially.

To begin with, this shortest of all amendments is incredibly vague and arbitrary. There are only three meaningful words in it: physical, desecration, and flag. The ability of Congress to prohibit physical desecration of the flag will depend ultimately on how the Supreme Court defines “desecration” and “flag.” Like obscenity, this may well be a case of “we know it when we see it,” but while that standard might be useful when it comes to community standards, as it does with obscenity issues, it is patently useless in writing laws for the whole nation. Put it another way, we want to stop dirty hippies from burning US flags during demonstrations, but what actually constitutes a “flag” for the purposes of law? Isn’t it an equivalent “desecration” to have flags made by a bunch of atheists in a Chinese sweat-shop? What if you spit on a flag decal that someone has attached to a fuel-guzzling SUV? What if you wear underpants with a flag sewn on the seat?

If Congress comes up with an adequate definition of a flag (and we regard it as unlikely), we still have a problem with the word desecration. To desecrate something, according to the dictionary, means above all to profane, or violate the sanctity of something. In other words, prohibiting desecration of the flag would be to imply that the flag is sacred. And because it is specifically in the Constitution now, the flag is legally more sacred than, say, the Bible or the Koran. And certainly it is more important than the Constitution itself, because you can burn copies of the Constitution all day every day (even if you don’t feel that the Administration and Congress are already using it for toilet-paper).

Ah, but Congress obviously has the secondary definition of “desecrate” in mind: to treat disrespectfully, irreverently, or outrageously. If that is the intention then that is certainly what it should say in the Constitution. The amendment should read “…treat the flag disrespectfully, irreverently, or outrageously.” Damn. That’s not gonna work either, because they really only want to ban “disrespectful burning” during a demonstration or other public “protest.” You can treat it disrespectfully in print, or on the Internet, or in a movie, all kinds of different ways that we wouldn’t think of banning.

Take this little test– think about each of the next 50 physical representations of the flag that you see, whether they are on ball-point pens, SUV bumpers, in editorial cartoons, on postage stamps, whatever. How many of those flags are treated respectfully and reverently? While you’re at it, make a diary entry or turn your camcorder on every time you see someone burn an American flag in the U.S. It just is not happening.

This is a classic case of a solution looking for a problem. Once the amendment is passed, mark our words– there will be plenty of problems. Well, if we are lucky there will be so many legislative bun fights and court cases that Congress won’t have time to proceed with the Sanctity of Marriage (or more properly “No Gay Marriage) amendment and whatever they have lined up after that. Fortunately we live in a time of peace and prosperity, and our lawmakers are free to concentrate on the really important stuff.

Another interesting aspect of this is that all previous flag-burning laws have been found to be unconstitutional because the restrict freedom of expression under the First Amendment. For the first time, an amendment will restrict the freedoms enshrined in the Bill of Rights, and for the first time one amendment will modify another. However, it will not be the first time that laws enacted in pursuit of one clause of the Constitution are in conflict with another, and as often happens, the Supreme Court will have to decide which takes precedence.

–SG

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This entry was posted on Sunday, July 10th, 2005 at 1:38 pm and is filed under Law and the Courts, Issues, Politics. You can follow any responses to this entry through the RSS 2.0 feed. You can skip to the end and leave a response. Pinging is currently not allowed.