Long may it wave

June 09, 1995|By Marianne Means

Washington -- CONGRESS, eager to embrace issues that pander to cultural conservatives, is moving to prove its patriotic purity by striking out once again at sinful souls who deface or destroy the flag.

The elephant is stomping on a mouse instead of dealing with the real dangers out there in the jungle.

Flag-burning has not been in vogue since the end of the Vietnam war. This is not some widespread practice that threatens to bring down the republic. It was never more than a temporary amusement of the political fringe in any case.

Nowadays, insults to the stars and stripes come not from the stupid theatrics of anti-American protesters but from business entrepreneurs who stamp their distorted image on sexy sweaters, underwear and anything else they can think of to sell.

But never mind. This isn't really about some rousing crisis that endangers all the good and decent things for which America stands. That's just the excuse the politicians give for proposing the unconscionable act of tinkering with the Constitution.

It's about finding an easy way to woo the conservative voters who put Republicans in control of both houses of Congress last fall. And it has the added plus of raising that familiar campaign theme of casting doubt on an opponent's patriotism.

Public opinion polls indicate that defending the flag is wildly popular, with four of every five Americans approving of the concept. It is particularly big with veterans and military families. This is no surprise: Who does not instinctively see our national banner as symbolically important?

But when we pledge allegiance to the flag, we do not only honor a piece of cloth. We also pledge allegiance to "the republic for which it stands" and its commitment to liberty.

The polls, however, do not investigate the intricacies of protecting freedom of expression, a concept that would be sacrificed to make the flag immune to critical comment or demonstration. The threat to the dignity of the stars and stripes is a pinprick compared to the wholesale damage this amendment could do to the Bill of Rights.

The bottom line here is that our elected representatives seem about to sell out a crucial principle of democracy for a cheap shot on the campaign trail.

On Wednesday, the House Judiciary Committee approved a measure that seeks a constitutional amendment to allow Congress and the states to pass laws banning physical desecration of the flag. What is meant by "physical desecration" is not explained, leaving considerable latitude for dangerous legal mischief.

The bill is to come before the full House before the end of June, fulfilling another promise by Speaker Newt Gingrich, who describes the issue as a "fight over values." Preserving the integrity of freedom of speech is not as valued in his book as the political gain he expects for wrapping himself in the flag.

Proponents claim 273 co-sponsors, only 17 votes short of the necessary 290. A constitutional amendment requires a two-thirds vote of both the Senate and House before it can be sent to the states for ratification.

The Senate is considering a similar amendment that has 53 co-sponsors, only seven votes short of the 60 needed to block a filibuster but 14 short of the two-thirds required for passage.

We have been through all this before.

1989, the Supreme Court struck down a Texas statute penalizing flag-burning, on the grounds that it infringed on First Amendment guarantees of free expression. The court ruled that the right to criticize government, including crude attacks on its prime symbols, is central to the basic premise of the Constitution. The people are sovereign, not the government.

The next year, Congress tried to get around this by passing a statute aimed at replacing the Texas law. The Supreme Court struck that down too.

Then President Bush, who was elected in 1988 by visiting flag factories and challenging his Democratic rival's patriotism, called for a constitutional amendment to protect the flag. Despite an emotional debate, neither House nor Senate could produce the requisite two-thirds majority for passage.

Flag-waving Republicans warned that veterans and other patriots would turn against those who opposed the amendment,

but it never became a major issue in the 1992 presidential and congressional campaigns. Not even Mr. Bush found it useful.

Nor has it been a major factor since, except in isolated cases.

Former Marine Oliver North, star of the Iran-contra scandal, won the American Legion's support in his campaign for a Virginia Senate seat last year with a pledge to ban flag-burning. But that vow didn't bring Mr. North victory.

You'd think Mr. Gingrich, who has certainly done his share of dumping on government, would understand the importance of universally protecting the right of demagogues, idiots, zealots, activists and anyone else to make symbolic statements that are offensive but do not actually injure others.

Ironically, without the First Amendment, Mr. Gingrich would not be where he is today.

9- Marianne Means is a syndicated columnist.

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