In the book of Exodus, Moses ascends Mount Sinai to receive God's commandments. He is gone for more than a month, and the Israelites become anxious. They melt down their gold jewelry and make a calf from it, proclaiming, "This is your god, O Israel, which brought you up from the Land of Egypt."
Like the Israelites, members of Congress who say we should amend the Constitution to "protect the flag" are confusing a symbol with the thing it represents. And like the sin of the golden calf, which leads Moses to smash the Ten Commandments, their confusion threatens to destroy the law–in this case, the First Amendment.
It has been 10 years since the U.S. Supreme Court overturned Gregory Lee Johnson's conviction for violating a Texas statute against "desecration of a venerated object." Johnson was arrested during the 1984 Republican National Convention in Dallas after he doused an American flag with kerosene and ignited it while his fellow protesters chanted, "America the red, white, and blue, we spit on you."
In 1989, the Supreme Court recognized this odious display for what it plainly was: political speech. "If there is a bedrock principle underlying the First Amendment," the Court said, "it is that the Government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable."
Perhaps missing the point, Congress immediately approved the Flag Protection Act of 1989, which threatened to imprison anyone who "knowingly mutilates, defaces, physically defiles, burns, maintains on the floor or ground, or tramples upon any flag of the United States." In 1990, the Court reviewed the cases of seven people arrested under the new law–including three who burned a flag to protest the ban–and told Congress, in effect: "We meant what we said. Cut it out."
After that, the flag worshipers adopted a new strategy. Since the Constitution did not allow them to criminalize disrespectful treatment of the flag, they decided to change the Constitution, adding an amendment authorizing Congress to "prohibit the physical desecration of the flag of the United States."
In 1995 the measure was approved by a huge margin in the House of Representatives but fell three votes short of the necessary two-thirds majority in the Senate. Two years later the House approved the amendment a second time, but it did not reach the Senate floor. Now the flag worshipers are at it again.
At last count, their amendment had 56 co-sponsors in the Senate and 275 in the House. Meanwhile, 49 state legislatures have approved resolutions urging Congress to act, and polls indicate that three-quarters of Americans agree the First Amendment needs to be abridged–though no one has explained the nature of the crisis that justifies such an unprecedented step.
"An overwhelming majority of us do not believe individuals should have the right to physically desecrate this national symbol," said Representative Charles Canady (R-Fla.) during recent congressional hearings. But as chairman of the Subcommittee on the Constitution, Canady surely knows that the Framers believed certain things should not be put to a vote–including freedom of speech.
Not to worry. According to Canady, "Burning the flag is burning the flag, not making a speech." Indeed, said Representative Henry Hyde (R-Ill.), it is "a hate crime."
Such attempts to deny that flag burning is a form of speech are either obtuse or disingenuous. This is not nude dancing we're talking about. People get upset when somebody desecrates a flag precisely because they don't like the message it communicates: contempt for the republic and the principles on which it was founded.
"The American flag is a sacred symbol of freedom," says Harold L. Miller, national commander of the American Legion. If so, there's something paradoxical about restricting freedom for the sake of the flag.
"The flag is not just a piece of cloth," Representative Randy Cunningham (R-Calif.) said during the hearings. "We don't fight for cloth. We fight for what it represents." Freedom of speech, of course, is one of the things it represents, which is what makes the position of the flag's self-appointed defenders so incoherent.
Roger Pilon, director of constitutional studies at the Cato Institute, granted Cunningham's premise but tried to point him toward a different conclusion. "People give their lives for principles, not for symbols," Pilon observed. "When we dishonor those principles to protect their symbol, we dishonor the men who died to preserve them."