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Before July 4, the GOP. will attempt to do something that hasn't been done since our Nation was founded: they will try to pass legislation to change the First Amendment. When the Supreme Court says that a law is invalid under the Constitution, one solution is to change that document to validate the law. It's certainly not the best solution, but that is what America faces today -- a Constitutional amendment to criminalize the ill-defined act of flag desecration.
I think Senator Ted Kennedy put it best, when he said "The words of the first amendment are simple and majestic: 'Congress shall make no law abridging freedom of speech.' The proposed constitutional amendment would undermine that fundamental liberty." Unfortunately, the issue of flag desecration has gone beyond simple liberty and become a partisan issue. An issue that the Republican majority in Congress is not likely to admit desecrates the Constitution.
For about 4 months now, I have been operating a site on the World-Wide Web, the graphical section of the Internet, which addresses this issue. By doing so, I have been exposed to many, many, people with interesting views on the subject. Although my correspondents are by no means a representative sample of all Americans, the responses I get make me wonder about the Republican claim that a vast majority of Americans support such legislation. Of the over 160 electronic mails I have received, less than 20 of them oppose my views, and only 3 writers have actually stated that they support the amendment.
In the course of answering this e-mail and tracking the legislation via the Internet, I have been exposed to nearly every potential argument for the amendment, and have written or read effective counter-arguments. It seems that there is no rational basis for supporting such a drastic change to the United States Constitution.
Argument 1: Senator Bob Dole has stated since 1980 "there is only one way to correct the situation, and that is to pass a constitutional amendment." This is not the only way. Many laws exist that can be used to punish flag-burners. If a protester burns another individual's flag, let him or her be punished for vandalism. If the protest occurs in public, enforce applicable laws against arson. An amendment would be a drastic measure against a type of protest that occurs only about eight times a year.
Argument 2: Rep. Henry Hyde of Illinois, the chairman of the House Judiciary Committee, said "as tombstones are not for toppling, nor churches for vandalizing, flags are not for burning." Mashed potatoes are not for sculpting, either, but no one is considering a law against that. Arizona's freshman Representative Matt Salmon expressed a similarly flawed reason -- that neither U.S. currency nor mailboxes could legally be destroyed. The flaw inherent in this argument is that none of those protected items are private property. Destruction of government property (or, for that matter, churches or graveyards) is rightfully a crime. If this amendment passes, it would be the first time in America's history when a person could go to Wal-mart and purchase an item he could never legally destroy.
Argument 3: In response to slippery-slope arguments about the potential criminal nature of sun-faded flag bumper stickers and sweaty flag bandannas, many of the amendment's supporters have stated that the laws would not cover any non-desecratory acts. Of the virtual flag desecration on the Internet, Rep. Sam Johnson, (R-Dallas), said "A computer simulated version of a flag burning, although it is just as deplorable, cannot be treated the same as the act of desecrating an actual flag," he said. This opens up two potential difficulties with the legislation. First, the amendment merely states "Congress and the States shall have power to prohibit the physical desecration of the flag of the United States." There is no provision in that statement to prohibit any State from enacting laws against cutting cakes shaped like the U.S. flag, as silly as that may seem. In fact, such laws would likely be outside the realm of Supreme court appeal, after the amendment has been made specifically to justify them constitutionally. The other problem with this argument is the very insidiousness it implies. The law will not be used against people who unwillingly desecrate a flag. It will not be enforced to stop Republicans from sweating into red, white and blue socks. It will not be used against the owners of stained and dirty flag-emblazoned T-shirts. It will only be used against those who are thinking anti-American thoughts during their desecration. Granted, the line between accidental and obvious desecration is a relatively easy one to see, but that fact that the law will actually be punishing thoughts, not acts, makes it a most dreadful proposition indeed. After all, the only way to properly dispose of a worn flag is by burning it.
Argument 4: Another of Matt Salmon's motivations for cosponsoring this amendment is the "thought of Americans having died to protect the flag that protesters desecrate." As many Vietnam veterans have told me via e-mail, it was never the piece of cloth they fought for -- it was what that flag stood for. The flag stands for the freedom each American has, including the right to burn that very symbol. Burning that symbol may be an obnoxious and misdirected protest, but we have to protect the freedom of expression for all people, not just ones we agree with.
Argument 5: William Detwiler, National Commander of the American Legion, testified in Congress that "this amendment will. . . clarify the importance of patriotism as an American value. It will reinstate respect for the flag as one of the guiding principles of our nation." Actually, it will mandate respect for the flag. Respect that comes only through threat of imprisonment is neither earned nor deserved.
Argument 6: Not every act of expression is protected. One cannot shout "fire!" in a theater. Of course not, but if flag burning were to be as serious a threat to human life as an incitation to riot, it would be treated as such. The Supreme Court would have ruled for such laws, as they have done with libel, slander, and obscenity. If a flag-burning protest was to escalate to such a level where lives or property were threatened, we already have laws to remedy that situation.
Argument 7: The Supreme Court vote was a narrow one, 5-4. That is not a reason to overturn their decision with a permanent change to our Constitution. That is the reason we have an odd number of judges.
I've heard many more arguments, but those were the best. The rest fall apart on their own merits, without need for debate. I think if the supporters of this amendment look at the situation with an unbiased, non-partisan mind, they would understand that this is a legislative idea which is at best unnecessary, and at worst, extremely dangerous. They would realize that they are blindly following a party line without rational or logical thought. They would see that, fifty years from now, this amendment, not the Congressional Accountability Act or the Risk Assessment and Cost-Benefit Act, would be the one that defines the 104th Congress in history books.
Rather than change the Constitution to mandate respect for the flag, let's work together to make America even better. Perhaps then, flag-burning will be even less of a problem than it is now. I think that's an argument we can all agree on.