July 21, 2004
by John Fonte
Once again, this week the decade and a half long struggle to restore to Congress and the fifty states the power to enact legislation prohibiting the desecration of the American flag is being fought out in the halls of Congress. This legislative power existed from the framing of the Constitution in 1789 until it was curtailed in 1989, when a deeply divided Supreme Court (5-4) ruled that a Texas law prohibiting flag burning was unconstitutional (Texas v. Johnson). In response, Congress overwhelmingly passed the Flag Protection Act as a legislative remedy; however, this law also was declared unconstitutional. At that point, the American Legion and other opponents of flag desecration launched a campaign for a constitutional amendment.
Nevertheless, for more than a decade, opponents of the proposed flag amendment have argued that its adoption would, in effect, reverse two hundred years of American history by amending the Bill of Rights and restricting freedom of speech.
For example, George Bushnell Jr., president of the American Bar Association in 1995, declared: "The flag burning amendment seeks to chip away at the guarantees contained in the Bill of Rights. Not once in more than 200 years since those freedoms were established have we seen fit to tinker with those principles."
In 1990, Senator George Mitchell of Maine argued, "Never in 200 years has the First Amendment been changed or amended. As a result, never in 200 years has Congress been able to make a law abridging the freedom of speech. Now we are asked to change that, for the first time."
In fact, the flag amendment does not reverse 200 years of constitutional tradition, amend the Bill of Rights, or restrict free speech. On the contrary, the amendment restores traditional legal practice. As Chief Justice William Rehnquist wrote in his Johnson dissent: "Both Congress and the states [for years] have enacted numerous laws regulating the misuse of the American flag." At the time of the Supreme Court's Johnson decision, all the states except Alaska and Wyoming had laws on the books prohibiting flag burning. Moreover, Congress had passed the Uniform Flag Act of 1917 that stated, "No person shall publicly mutilate, deface, defile…" an American flag. Furthermore, the regulation of the misuse of the flag was made uniform and incorporated into the federal U.S. Code (18 U.S.C. 700a).
In short, there is no sense in which the proposed flag amendment reverses a "200-year old constitutional tradition" and "amends the Bill of Rights." Indeed, any "amending" of the 1789 Bill of Rights occurred in 1989, when the U.S Supreme Court, by a 5 to 4 vote decided that the legal protection of the American flag that "had existed for 200 years was now mysteriously unconstitutional," in the words of Senator Jon Kyl of Arizona.
The other main charge against the flag amendment-that it restricts freedom of speech-is also unfounded. In fact, it is particularly significant that the proposed constitutional amendment does not prohibit or restrict free speech or the articulation of any ideas.
As Chief Justice Rehnquist noted in his dissent, the flag burner Gregory Johnson was free to "make any verbal denunciation of the flag that he wished." Rehnquist pointed out that Johnson did lead a march chanting "Red, white, and blue, we spit on you," for which he was not (and could not) be prosecuted. The Chief Justice also noted that under traditional (pre-1989) law, Johnson was "left with" both "a full panoply" of non-verbal "symbols" and with "every conceivable form of verbal expression."
The proposed flag amendment is not concerned with speech, but with conduct. It simply states, "The Congress shall have the power to prohibit the physical desecration of the flag of the United States." This has been the traditional and commonsense practice of America's constitutional democracy for 200 years (supported by such civil libertarians as Earl Warren, Hugo Black and Abe Fortas.) Even a 1974 Supreme Court case (Smith v. Goguen) that permitted a protestor to wear a flag patch on the seat of his pants stated unequivocally as part of the majority decision that, "nothing prevents a legislature from defining with substantial specificity what constitutes forbidden treatment of United States flags."
Our democratic republic is based on two core principles: self-government ("government by consent of the governed") and limited government (in which governmental power is limited because all citizens possesses "inalienable natural rights"). Those inalienable natural rights have traditionally included freedom of the press, speech, religion, and assembly, but until 1989 few dreamed that they included the "right" to physically desecrate the American flag, the symbolic representation of American liberty. There is not, never was, and never should be, such a "right" under our Constitution and Bill of Rights.
John Fonte is a Senior Fellow and Director of Hudson's Center for American Common Culture.
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