One of the nicest things not to have happened in recent years is a constitutional amendment against flag-burning. How we have avoided this embarrassment is a mystery verging on a miracle.
Raw flag idolatry was the centerpiece of George Bush the Elder's 1988 presidential campaign (the one he won). When the Supreme Court ruled, 5-4, in 1989 that state laws against desecrating the American flag were unconstitutional, Congress immediately passed a federal law designed to pry away a justice or two by meeting their objections. Yet in 1990 the court threw out that law by another 5-4 majority.
Since then, legislatures of 49 of the 50 states have passed resolutions asking Congress to rectify this dangerous situation by sending them a constitutional amendment. Four times, starting in 1995 and most recently last Tuesday, the House has approved such an amendment by far more than the necessary two-thirds vote. The Senate has voted twice. Both times the amendment won a majority but just barely missed two-thirds.
So, even though the citizenry—when asked—overwhelmingly wants flag-burning to be illegal, even though the spectrum of opinion on this issue among the people's elected representatives ranges (with only a few exceptions) all the way from passionate approval to fear of opposition, and even though recent law school graduates weren't even born the last time the Supreme Court was thought to be a reliable safety net for civil liberties, somehow or other and against all odds, the U.S. Constitution still protects your right to burn an American flag.
And the peril to that right seems to be receding. An American Civil Liberties Union press release about Tuesday's House vote crowed, without detectable irony, that this was the first time "under 300" members of Congress supported an anti-flag-burning amendment. (The vote was 298 to 125.) The Washington Post gave the news one sentence in a news roundup column. The New York Times ran an article inside the paper with a dismissive headline labeling it a "ritual vote."
Apparently, the House now counts on the Senate to save it from itself on flag-burning the way the Senate depends on the House to stop campaign-finance reform. In fact, the House leadership was so busy stopping campaign-finance reform that the flag vote got bumped from its traditional prestige slot before the Fourth of July. First things first. How many innocent flags paid the ultimate price while members of Congress concentrated on making the world safe for soft money? That itself is a comment on all the flag-fetish one-upsmanship that accompanies this debate, in which even (or rather, especially) opponents of a constitutional amendment must carry on about how they love and worship any piece of cloth imprinted with this design.
Devotion to the flag (or something) reduced the amendment's chief co-sponsor, Rep. Randy "Duke" Cunningham of California, to semi-coherence in a floor speech he posts on his Web site:
It is not hard to make this decision when one knows what their values are, and one cannot rule by "but." People say, well, I deplore the burning of the American flag, but. It is not hard to make the decision when one knows their values and what they are by deed heart; mind.
Well, how about this, Rep. Cunningham: I don't especially deplore the burning of an American flag. (Burning of "the" flag is impossible, as there is no one flag.) Or at least I deplore it no more than I would the burning of a copy of the Declaration of Independence or the Constitution or a model of the Lincoln Memorial. The flag is the least American of our patriotic icons. Its design says nothing distinctive about us except that we were 13 colonies and are now 50 states. Flag worship is the emptiest form of patriotism. It has no direct connection to the values that really make America exceptional.
If Congress feels the need for a patriotic gesture, a better one would be to replace the national anthem. The current choice is not just empty flag worship, but bellicose, impossible to sing, and based on a melody not written by an American.
It is a cliché of this debate, but true nevertheless, that by attempting to forbid a form of criticism of the government, supporters of the flag-burning amendment are themselves symbolically—and it's all about symbols after all—desecrating the American flag. A constitutional amendment by definition cannot violate the Constitution. But there's no reasonable denying that this one is a frontal attack on the spirit of the First Amendment. It's not about limiting free expression for some unrelated purpose (like preventing a protest march from blocking the streets). It's not about what might be necessary in a temporary emergency (shouting fire in that crowded theater). It's not about limits on expression in areas far removed from the Constitution's basic concern (such as regulations on commercial advertising). It's about amending the Bill of Rights for the first time ever in order to outlaw a form of criticism of the government.
I will, of course, defend to the death the right of members of Congress to call for any constitutional amendment, however fatuous and unnecessary. Especially as long as they continue to avoid actually enacting it.