Warren Norred: Popularity shouldn't determine constitutional amendments


By Warren Norred / Special Contributor to the Arlington Morning News

Elected Republicans have been chided for years by the grass roots because the officeholders tend to ignore the platform of the party. When asked, some even say that they haven't read it. This keeps them from having to explain the discrepancy between the more ideological volunteers and the poll-based officeholders.

No more can the grass roots complain that they are ignored. Last week, U.S. Sens. Phil Graham and Kay Bailey Hutchison followed the platform on at least one issue - the protection of the United States flag. Both voted to support a constitutional amendment that would allow Congress to make laws that would protect one of our favorite symbols from defacement, burning, or whatever else some protester wants to do. This fits in very nicely with the various platforms passed last week during Arlington's Republican district conventions.

Of course, the fact that the good senators are voting in favor of such legislation means that, regardless of its actual value, the action is politically popular. Very few people in this country want to see a U.S. flag burned, so why not make a law to prevent it?

We shouldn't, because Constitutional amendments are serious matters. The founders of our country used the first 10 amendments, commonly known as the Bill of Rights, to protect individuals from an overly ambitious federal government. When you hear someone quote a founding document, it is almost always from those amendments. Amendments are difficult to pass, and even harder to fix after the fact.

Let's look at what would happen if we passed laws to protect the flag from being burned. The protester who was going to go to jail anyway doesn't care; he burns the flag just to spite the police and general public. The protester who doesn't really want to go to jail uses a flag, but modifies it first, so that only 49 stars sit on the field of blue. No one really notices, but the malcontent gets off without punishment.

To stop this, the law must punish those who burn any reasonable rendition of a flag. Now, we become subjective. If I cut a cake that has flag-colored icing on an Independence Day, I am showing respect, but if a protester does it during a Hate American rally, he or she has broken the law.

This example may seem ridiculous, but there is no way to get around the fact that, to be effective, the law must be subjective. We must depend on reasonable prosecutors not to get crazy and go after hippies who wear flags on the back of their leather jacket as they ride down the street on a Harley. If you don't believe that this kind of activity can get out of bounds, remember that several legislatures actually started to put into law that the penalty for assaulting a "flag burner" would be a $5 fine. Is this the way to change the hearts and minds of our country's enemies? Should we beat them up, spit on them, and say "See, I am a good American because I love my flag?"

Republicans have historically been against hate crime legislation - not because we favor hate, but because we trust juries to consider a criminal's motivation when allocating punishment. However, flag protection laws are nothing more than hate crime laws to protect an inanimate object, albeit an important one. It is acceptable to burn a worn flag to dispose of it, but do the same thing while protesting and you go to jail. The difference is not the action, but the motivation. Thoughts become criminal.

If we start down this road, we'll have to go further. As a Christian, I respect the Bible a lot more than my flag. American Muslims probably respect their Koran more than the U.S. flag. It is safe to say that Mormons respect the Book of Mormon more than the U.S. flag. For people of faith to go to great lengths to protect the flag, but leave our most sacred writings unprotected seems to be idolatrous. We will wind up having to write into law that public demonstrations cannot include any hurtful image, furthering the slow death of the First Amendment.

The Statue of Liberty is another great and unique symbol of our country. What will we do when the protesters switch over to paper machh versions for their protests?

Supporters of this change in our founding documents can cite only 74 cases of flag burning, yet the subject elicits great passion for the cause. Certainly, the flag occupies a unique position as our national symbol. But it is only a symbol. Those who have fought for our country use it as a visual aide to remind them and others of the ideals behind it. But what is important is the ideals for which they have fought and died, not the cloth substance of the flag itself. We should not let our emotion over the symbolism of the flag overwhelm the ideals it represents.

Another point to ponder is what our nation's founders believed about this subject. As in most constitutional issues, their voices should be heard and considered. Ben Franklin, a man of inestimable value to the creation of this country asked, "Abuses of the freedom of speech ought to be repressed; but to whom are we to commit the power of doing it?"

We can't trust Bill Clinton's Justice Department to enforce the gun laws that the Democrats wanted. There is no evidence that a flag burning amendment would be equitably enforced.

Some day, we may have the votes to pass a flag protection amendment. When that day comes, I fear that we will more soberly consider the ramifications of this law. We will have egg on our face, just as we did when we finally had the power to enact congressional term limits and finance reform, but chose against it. These are just bad ideas that do well in polls. Our leaders should know better.

Warren Norred can be reached through e-mail (amn@dallasnews.com).