Burning the Constitution, Again

You're never going to believe what's back as a scorching political issue in the U.S. of A.

It's flag-burning.
Yes, my fellow Americans, we are again about to be torn asunder by the chilling spectacle of politicians locked in mortal combat to demonstrate whose patriotism is bigger. And don't look now, but that wildly grinning fellow in the red, white and blue Speedo is none other than our own Sen. John Ashcroft.

Strangely enough, Ashcroft is chairman of the Senate Subcommittee on the Constitution -- akin to Linda Tripp heading a panel on personal privacy -- and he announced last Wednesday that he "will take quick action on a proposed constitutional amendment to protect the American flag."

As in the past, this tearful, love-it-or-leave-it assault on the First Amendment is sponsored by Sen. Orrin Hatch (R-Utah). Unlike recent years, however, Hatch has a seriously receptive audience in both houses of a Republican-controlled Congress desperate for an issue that's even too stupid for President Bill Clinton to steal.

In Ashcroft, Hatch has a fittingly frantic "primary co-sponsor" with a penchant for jingoistic rhetoric that would have gagged Betsy Ross. What's more, God's favorite senator has decided that -- with all those potential flag-burners lurking in the streets -- this is a matter of the gravest urgency.

"Ashcroft said he will expedite consideration of the amendment, making it the first piece of legislation marked-up by the subcommittee, " trumpeted his Web site.

Let's not waste any time here. After all, Old Glory has been in severe danger since -- and these are Ashcroft's words -- "the U.S. Supreme Court thwarted the people's will in Texas v. Johnson (1989) when it ruled that century-old state and local laws protecting the flag from desecration violate the First Amendment."

Actually, it's interesting that Ashcroft would even bring up this 10-year-old case, because it raises a question that couldn't have been raised 10 years ago when President George Bush briefly acted like he was going to get a constitutional amendment passed "to protect the flag." The question:

"How many American flags do you recall seeing burned in America since the dastardly court decision declared open season on the Stars and Stripes?"

That would be none, in my memory. Maybe a flag has been burned here or there, but not with any particular impact, and it's probably in no small part because it wouldn't result in protesters' being hauled off to jail by the police.

Make flag-burning a national crime and you'll make flag-burning a national pastime for protesters who want the attention and the media coverage and the validation that would come from being arrested for an act of political expression in the world's champion of democracy.

That, of course, isn't the best argument against banning flag-burning, only one of the more practical ones. The best one was stated by Justice William J. Brennan, in writing for the 5-4 majority, which held that the state of Texas violated the rights of Gregory Lee "Joey" Johnson when he burned a flag outside the 1984 GOP National Convention in Dallas to protest Reagan-administration policies.

Wrote Brennan: "If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable. We do not consecrate the flag by punishing its desecration, for in so doing we dilute the freedom that this cherished emblem represents."

It's a classic and obvious free-speech point: The First Amendment isn't needed to protect speech with which most Americans are comfortable. It's needed to protect speech that most people detest.

Is there a serious danger to watering down freedom of speech? Is there really any likelihood, in our great democracy, that some overbearing government figure is going to demand patriotic loyalty among citizens?

Please consider Ashcroft's words carefully:
"At a time when America's virtues need to be clearly articulated by our national leaders, and when patriotism is dismissed by many as arrogance, America needs, more than ever, something to celebrate. We need a national symbol that unites us and makes us grateful to live in freedom in America.

"America needs its Flag unblemished, representing not a person or any partisan interest, but this extraordinary nation. The Flag, and the freedom for which it stands, has a unique ability to unite us as Americans." (Capitalization of the "Flag" is Ashcroft's style, not standard newspaper practice, at least not until it is so legislated.)

Now suppose someone happens to differ from Ashcroft about our nation. Suppose someone doesn't consider America to be so virtuous, that they consider it overly nationalistic to the point of arrogance, that they feel persecuted and ostracized and anything but grateful for what they feel is a denial of their own freedoms. Suppose they want to change America more than celebrate it.

If that person dissents from virtually every point advanced by Ashcroft as the indisputable truth, why should he be bound by Ashcroft's (or others') particular reverence for the flag? If our government and "national leaders" can impose this limitation, what's to prevent further restrictions on expression in the name of patriotism?

Precisely 10 years ago this week, it was argued before the U.S. Supreme Court that to allow the burning of a flag would destroy it as our "symbol of nationhood and national unity." In response, one of the justices pointed out that, to the contrary, the protest action by flag-burner Johnson "would have been useless unless the flag was a very good symbol. His action does not make it any less a symbol."

The justice also wondered whether the special protection afforded the flag as a sacred symbol might also be then granted to copies of the U.S. Constitution: "Well, how do you pick out what to protect? I mean, if I had to pick between the Constitution and the flag, I might well go with the Constitution."

Which "liberal" justice raised these anti-patriotic questions? Which enemy of the people would thus jeopardize Old Glory?

That would be one Antonin Scalia, presumably the court's most conservative voice, and one of the key votes upholding the First Amendment in 1989. Over the past 10 years, such words of wisdom have been rare from Scalia.

But not as rare as flag-burning.

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