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Flag Amendment Coming Up For Vote later this month

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  • Karl Dickey
    The flag amendment: Reverence confronts reason Inside the First Amendment By Paul K. McMasters First Amendment Center ombudsman 06.04.06 The unadulterated
    Message 1 of 1 , Jun 6, 2006
      The flag amendment: Reverence confronts reason
      Inside the First Amendment

      By Paul K. McMasters
      First Amendment Center ombudsman

      The unadulterated version of one of history’s most
      remarkable covenants between a government and its
      people — the Bill of Rights to the U.S. Constitution —
      hangs by a slender thread in the U.S. Senate.

      A proposal to amend the Constitution to prevent flag
      desecration is scheduled for a vote in the Senate
      during the week of June 26. Supporters and foes agree
      the measure is within a single vote of the 67 needed
      for passage. It already has passed in the House. If it
      passes in the Senate, it goes directly to the state
      legislatures, where ratification is virtually assured
      since all 50 legislatures have endorsed the concept
      and only 38 are needed to permanently change the

      So, a lot rides on this impending vote in the Senate.

      If the one-vote margin falls on the side of passage,
      the Senate will set in motion a dramatic and lasting
      change in the way we view and treat political dissent.
      If the flag-desecration amendment is ratified, for the
      first time in this nation’s history we will have
      materially changed the Bill of Rights, which affirms
      and secures the fundamental rights of all Americans
      against the power and reach of government.

      More specifically, speech protected by the First
      Amendment and affirmed by half a dozen Supreme Court
      decisions since 1907 stands to be criminalized.

      Why are our political leaders contemplating such a
      radical action?

      There has been no outbreak of flag-burnings or other
      acts of disrespect. There is no evidence that
      Americans revere our flag less these days; quite the

      But a single act of disrespect to the symbol of our
      nationhood and national unity — even the prospect of
      such an act — is an unconscionable affront to millions
      of Americans. Many of them are weary of waiting for
      the Supreme Court to “get it right.” They are ready
      and willing to rewrite the Constitution to protect the

      Such reverence for the flag notwithstanding, there are
      powerful and persuasive reasons advanced by the
      opponents of such an amendment that the courts indeed
      have got it right.

      The courts have consistently ruled that flag-burning
      is protected by the First Amendment because it is
      symbolic speech, one of the most powerful forms of
      expression — a “short cut from mind to mind,” as
      judges and justices have described it.

      A flag-desecration amendment, therefore, would pierce
      the heart of political speech, “expression situated at
      the core of our First Amendment values,” wrote Justice
      Brennan in the 1989 decision Texas v. Johnson.

      Further, ratification of a flag-desecration amendment
      would launch a decades-long constitutional and legal
      battle over the nature of new laws implementing the
      amendment, the definitions of “flag” and
      “desecration,” and the courts’ interpretation of those
      laws and those definitions. Americans wishing to use
      the flag in commerce, in art, in political campaigns
      or in dissent would not know whether they were
      vulnerable to prosecution.

      There is no question that the U.S. flag is the most
      endearing and enduring of our symbols. It leads our
      soldiers into battle. It flies proudly above our
      monuments and government buildings. It stirs our
      patriotic passions and reminds us who we are and what
      we can be.

      It is the Constitution, however, that brings order to
      the democratic process, that guides us through legal
      and cultural turmoil, that keeps our leaders in line
      and our institutions accountable, and that requires us
      to reason together and to tolerate differing, even
      offensive, views.

      And it is the Bill of Rights generally, and the First
      Amendment in particular, that guarantees some of our
      most cherished freedoms.

      To change those charters to protect the flag is to
      contradict what the flag stands for. To protect a
      symbol from physical desecration, we would desecrate
      the constitutional covenant securing real freedoms.

      When we salute the flag, we salute our commitment to
      free speech and the right to protest.

      As we regard our flag, each of us experiences a range
      of emotions conveying a range of messages, different
      for each of us. Those differences become even more
      significant if we anoint by amendment the majority or
      those in charge with the authority to foster an
      orthodox view of our national symbol and criminalize
      any opinion or feeling to the contrary.

      That is why it is so important to keep the First
      Amendment intact. It stands as a caution and a barrier
      to the idea that the majority can dictate what people
      may say and how they may say it. When it comes to the
      regulation of expression, a majority risks becoming a

      Changing the First Amendment to protect the flag
      confesses a needless uncertainty about the power and
      permanence of both. To raise a symbol above the
      reality it stands for would be unwise, unnecessary and
      ultimately un-American.

      Paul K. McMasters is First Amendment ombudsman at the
      First Amendment Center, 1101 Wilson Blvd., Arlington,
      Va. 22209. E-mail: pmcmasters@....
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