Will Congress save the flag by destroying our freedom?

March 08, 1995|By ROGER SIMON

WASHINGTON -- Now that the balanced budget amendment has been defeated in the Senate, the Congress can turn its attention to really dumb stuff.

How dumb?

Well, there is an upcoming amendment so dumb that the Republicans did not even include it in their "Contract with America," that's how dumb.

It is the flag desecration amendment, which will be introduced in Congress next week.

It would make it a crime to physically desecrate the flag of the United States.

And should it pass and be ratified by the states, it would be the first time in American history that the Bill of Rights has been amended.

That's because the Supreme Court has ruled twice in recent years that flag desecration, however repugnant, is a form of speech protected by the First Amendment.

So, backers of the flag desecration amendment -- and so far it has 211 representatives and 34 senators as co-sponsors -- have decided to make an exception to the Bill of Rights.

The proposed amendment is only 20 words long: "The Congress and the States shall have power to prohibit the physical desecration of the Flag of the United States."

But what is desecration? Burning? Certainly. Walking on the flag? Well, maybe. Wearing the flag? Gee, I don't know.

And what is a flag? Only something that is manufactured out of cloth? What if I draw one on a piece of paper? Is that a flag? Can I burn it?

And what if I manufacture a flag with a star missing? Does that mean it is not a flag and I can burn it? Or does the very act of excluding a star constitute desecration?

Nobody knows. But each state and the federal government would get to decide for itself.

So let's say you go to a party in Baltimore and there is a flag on the frosting of a sheet cake. (Maybe it's a Flag Day party.) You cut into the cake, right through the flag.

"Aha!" a Maryland state cop says, grabbing you. "That is physical desecration of the flag under state law. It is punishable by 10 years in prison without possibility of parole."

You are stunned. "But it's legal in Delaware, where I live," you say. "In Delaware, you can put a flag on the frosting but you can't put a flag on paper napkins. And it's only five years in jail!"

"Should have thought of that before you came to Maryland," the cop says, slapping the cuffs on you. "And we'll drop by the U.S. attorney's office on the way to the jail. They have some federal charges to hit you with."

But we don't really have anything to worry about, right? This is just another loony, symbolic bill with no chance of passage, right?

Wrong. The backers of this amendment include Bob Dole, Phil Gramm, Orrin Hatch and Newt Gingrich.

If it does pass Congress by a two-thirds vote in each house, it will still require ratification by 38 states.

But consider that 46 states have already passed resolutions in favor of it. (Including Maryland. Sorta whizzed by you, didn't it?)

It was in 1989 that the Supreme Court held in Texas vs. Johnson that laws against flag desecration violated the First Amendment.

But since then how much of a problem has flag burning been?

The American Civil Liberties Union says there have been only three cases nationwide. The Citizens Flag Alliance, which has organized support for the flag desecration amendment, says there have been more than that number, but cannot say how many more.

Suffice it to say, no matter what the exact number, flag desecration does not seem to be a pressing national problem.

And ask yourself: In the years since the Supreme Court ruled on this matter, has the United States been weakened by a lack of ability to punish flag desecrators?

On the contrary. It seems to me that in these same years the United States and democracy have triumphed over totalitarian, Communist nations where free speech such as flag burning had always been prohibited.

So maybe it's not the cloth that makes us a great nation, but what the cloth symbolizes.

You can destroy a flag by burning it.

But burning cannot destroy the freedom that the flag symbolizes.

Only misguided lawmakers can do that.

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