The Bill of Rights v. Old Glory
by Wendy McElroy

The Constitutional amendment to protect the American flag was defeated by 4 votes in the Senate on March 29. Although it has been called an anti-flagburning measure, the amendment had nothing to do with protecting Old Glory from the flames.

Section 4 (k) of the Federal Flag Code (Public Law 94-344) declares, "The flag, when it is in such condition that it is no longer a fitting emblem for display, should be destroyed in a dignified way preferably by burning." Staunch advocates of the amendment, such as the American Legion, also recommend disposing of a tattered flag by burning it.

The proposed amendment was meant to ensure that the 'proper' attitude is displayed when the flag is burned. The amendment stated: "The Congress shall have the power to prohibit the physical desecration of the flag of the United States." Thus, the amendment was aimed at prohibiting not an act (the burning) but an intention (the desecration). It was meant to ensure that Americans express the proper attitude. To do so, supporters were willing to take the unprecedented step of passing an amendment that would have altered the Bill of Rights.

Of course, not all American flags would have been accorded such protection. Certainly the same respect would not have been extended to the Confederate flag. Indeed, currently, people who view this symbol of America as pro-slavery are attempting to have it yanked off public buildings. Others, who view the Confederate flag as a symbol of Southern heritage, demand that it be treated with respect. After all, when the Stars and Stripes was adopted in 1777, it too was the flag of a government that endorsed slavery.

All flags make political statements and the statement varies from person to person ... as does the personal reaction. The right to make political statements converts the act of burning a flag into a free speech issue. This is highlighted by the fact that it is the attitude and not the act itself that is being punished.

The question of amending the Bill of Rights to prohibit desecration of the flag is almost certain to re-emerge in the Senate, perhaps as early as next year. The flag desecration amendment has been brought forward four times since 1989 and Senate backers have already announced their intention to begin round five. With the majority of Americans supporting such an amendment, it is a politically popular move. Senator Orrin G. Hatch (R-Utah) vowed, "We'll be back. We're not going to stop until we get this measure approved."

Why the flurry of desecration amendments when so few flags seem to be burning these days? And why an amendment rather than a statutory solution?

The recent history of 'flag burning' is a saga of emotionally-charged political reactions and backlashes. Arguably, the key event occurred in 1989. By a vote of 5 to 4, the U.S. Supreme Court found in Texas v. Johnson that destruction of the flag was protected speech under the First Amendment. The ruling ran counter to many state laws that prohibited such displays; indeed, it specifically struck down a Texas law. The ruling also ran counter to deeply-held opinions of a majority of Americans.

In the aftermath, the Flag Protection Act was passed and went into effect on October 28, 1989. That same day, protesters began to burn the flag. For example, in Seattle, at the stroke of midnight members of a Vietnam veteran's group raised a burning flag over a Post Office. When protestors ignited Old Glory on the steps of the U.S. Capitol two days later, three of them were arrested for flag desecration. Defiance spread across American campuses; four more people were arrested in Seattle for burning a flag at a protest. When both sets of charges were dismissed as unconstitutional, the matter was appealed to the Supreme Court on an expedited basis. In June 1990, the Court confirmed that the Act was unconstitutional, again by a vote of 5 to 4.

Thus, voices began to call for an amendment to the Constitution. As Senator Trent Lott (R-Mississippi) commented, "The Supreme Court's failure to act responsibly on this issue leaves us no other means to protect this symbol." In short, those who wish to protect the flag are trying to sidestep the Supreme Court and the Bill of Rights.

The flag desecration amendment has not only pitted 'patriots' against free speech advocates and the Supreme Court, but also created a schism between the House and the Senate. The House approved the amendment in 1990, 1995 and 1997. Every state legislature but Vermont's has officially spoken out for the amendment. But it can't seem to get past the freedom of speech concerns of the Senate.

There, amidst much grandstanding and rhetoric, the debate parallels that which can be heard in many bars and living rooms. Those who support the amendment claim that flag burning is not free speech but offensive conduct. As Senator Dianne Feinstein (D-California) asked, "Is anyone here convinced that desecrating a flag might be the only way for someone to express an opinion?" Critics argue that the right to free speech includes the right to burn a flag while manifesting a bad attitude. The Bill of Rights should not be altered merely to avoid offense. As Senator Patrick Leahy (D-Vermont) declared, "We protect the sin because we love the liberty."

No one who remembers the Vietnam era can honestly deny that flag burning is an act of political protest. Indeed, burning things generally seems to a popular protest strategy -- from draft cards to brassieres. The significance of the act stems primarily from the emotions surrounding the symbol being torched. Symbols are important but they are not real things.

Representative Gary Ackerman (D-New York) said, "If a jerk burns a flag, America is not threatened ... If a jerk burns a flag, freedom is not at risk and we are not threatened." However, freedom is threatened by those who would limit the First Amendment in order to sanctify a symbol.