“The Congress shall have power to prohibit the physical
desecration of the flag of the United States.”
These words comprise the text of the “Flag Protection
Amendment” now pending in the U.S. Congress, and as we
celebrate the 228th anniversary of our nation’s birth there
are many good reasons to hope for its swift passage. To become the
28th Amendment to the U.S. Constitution it must be approved by
two-thirds majorities in both houses of Congress, and then ratified
by three-fourths of the state legislatures.
A brief history of flag-burning is in order. For the initial 213
years of our republic, it was generally accepted that statutes
prohibiting flag desecration were constitutional. When the U.S.
Supreme Court first directly addressed this issue in 1989, 48
states and the federal government had enacted laws shielding the
flag from various forms of intentional abuse. In an unexpected 5 to
4 ruling that year, a sharply divided Court struck down these
statutes as unconstitutionally violative of the First Amendment’s
“free speech” clause in Texas v. Johnson.
The states and the federal government spent the next year
carefully redrafting their statutes to conform to the Court’s
guidelines. But in 1990, the Court extended its earlier ruling in
another 5 to 4 decision, declaring in United States v. Eichman that
no such laws could ever pass constitutional muster.
Since that time, there have been several unsuccessful efforts to
enact a constitutional amendment to overturn the Court’s
pronouncements. In 1990, the vote in favor of an amendment was 254
to 177 in the House, and 58 to 42 in the Senate. The Flag Amendment
was resurrected by a more receptive Congress in 1995. The House
approved the proposal on a 312 to 120 vote, but it fell short in
the Senate on a tally of 63 to 36.
The House subsequently adopted the Flag Amendment three more
times. The Senate voted on the measure one additional time in 2000,
when it again narrowly failed by a 63 to 37 margin.
Not to be discouraged, proponents of protecting the flag decided
to attempt passage in the current Congress. Last year, the House
again approved the Flag Amendment on a vote of 300 to 125. The
amendment now rests in the Senate, where its fate will be decided
shortly.
The American flag embodies every aspect of our national
identity. As such, it is a form of “national property,”
that is, each flag belongs to us collectively as Americans, and no
single flag can ever wholly belong to one person alone. A flag is a
unique symbol, one which has no parallel in the values it
represents or the emotions it stirs. The flag has played a central
role in our nation’s historical development, a perpetual
reminder of our democratic tenets.
Because our nation’s founders foresaw occasions when we
would need to move society in a more progressive direction, the
Constitution provides for its own alteration. Indeed, several
previous constitutional amendments have been enacted to nullify in
part or in whole what were later widely acknowledged to be
untenable Supreme Court opinions.
By equating flag-burning with “speech,” the Court
has stretched and twisted the First Amendment to include conduct
which was never intended to fall under its protective cloak.
Applying the Court’s reasoning in this area, the Constitution
could arguably sanction any number of illegal or destructive
acts.
But we have long recognized many significant exceptions to the
First Amendment. Even pure forms of speech, covering areas ranging
from false advertising to obscenity, are regulated and in some
cases prohibited by the government.
Laws proscribing slander and libel are not invalid simply
because they involve speech. And few would question the wisdom of
criminalizing verbal conduct which jeopardizes public safety, such
as issuing a death threat, falsely reporting a natural disaster, or
committing treason. Similarly, interpretations of other
constitutional amendments have always been subject to reasonable
limitations.
The Second Amendment’s right “to keep and bear
arms,” for instance, does not mandate that every American
have unconditional access to any technologically available
weapon.
The upcoming vote in the Senate is expected to be close. Much
has changed in America since 1990. There is a renewed sense of
national pride brought about by heightened security concerns. All
measures of public opinion over the years have shown consistently
solid support for the Flag Amendment, though this fact has been
somewhat muted by near-unanimous opposition from the
“mainstream” American news media.
All 50 state legislatures have endorsed resolutions calling upon
federal lawmakers to enact the amendment. Even the Supreme Court
appears to be retreating from its earlier position, having affirmed
in 2003 (by a vote of 6 to 3) the constitutionality of a state law
banning cross-burning with “intent to intimidate in Virginia
v. Black.”
A careful consideration of the issues involved in that latter
case makes its holding difficult to reconcile with the
Court’s decisions striking down flag desecration
statutes.
The government’s interest in preserving the flag’s
integrity far outweighs any minimal burden on free expression
occasioned by requiring people to engage in alternative modes of
communication. For those Americans who feel compelled to denigrate
their own country (but who nevertheless choose to remain here and
enjoy its freedoms), there are many avenues of negative expression
available, including verbal denunciation or burning other symbols
of the government. The Flag Amendment is an appropriate vehicle for
preserving that minimal amount of patriotism and respect which any
nation needs to ensure its continued vitality.
Bozajian is a deputy district attorney for the County of Los
Angeles and a council member of the City of Calabasas.