Desecrating the Constitution

June 18, 1995

Both houses of Congress will soon vote on an amendment to the Constitution which would for the first time limit the First Amendment's guarantee of free speech. The proposed amendment says, "The Congress and the States shall have power to prohibit physical desecration of the flag." That surely means you can't burn one or deface one with another symbol.

We understand the motivation of the advocates of this step. Many make eloquent arguments about the uniqueness of the flag and the need to grant it respect. Veterans of wars are especially compelling in this regard. But there are veterans on both sides of the debate. For example, Sen. Bob Kerrey, D-Neb., told the Senate Judiciary Committee this month, "I have utter sympathy and great respect for people who are in support of this. People are concerned about disrespect. . . and who can't be today?" We agree with that.

Like Senator Kerrey, we oppose the amendment. He was asked, "What do you say to people who say, 'How can you be patriotic and not support this amendment?' " He said, and we certainly agree with him on this, "Well, I say that respecting the right of individuals to express themselves is in the end one of the freedoms that is associated with and a part of patriotism."

To put it another way, "It is poignant but fundamental that the flag protects those who hold it in contempt." Justice Anthony Kennedy said that six years ago in a Supreme Court case overturning anti-flag burning laws -- a decision that prompted today's proposed amendment. He and a majority of justices recognized that just as the flag is a symbol, burning it is symbolic speech.

To amend the Constitution for symbolic rather than substantive reasons desecrates it. To rewrite the First Amendment in effect to say, "Congress shall make no law abridging the freedom of speech except when it comes to the flag" would be wrong in and of itself -- and, worse, would invite further dilutions of speech and other individual freedoms Americans have died fighting for -- under the Stars and Stripes -- for more than two centuries.

There have been few flag burnings since the Supreme Court upheld that right in 1989 and again in 1990. It is not a problem. We hope enough members of Congress have the courage to vote "no" on this matter and the House and Senate can get on to more pressing matters.

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