Flag Amendment Coming Up For Vote later this month
- The flag amendment: Reverence confronts reason
Inside the First Amendment
By Paul K. McMasters
First Amendment Center ombudsman
The unadulterated version of one of historys 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 nations 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
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
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
Paul K. McMasters is First Amendment ombudsman at the
First Amendment Center, 1101 Wilson Blvd., Arlington,
Va. 22209. E-mail: pmcmasters@....