This summer, a large majority of the U.S. House of Representatives (including my own Representative) voted to approve an amendment to the Constitution prohibiting "flag desecration," whatever that means. This amendment does not really make it clear what constitutes "desecration." If I were to take a photograph of an American flag and ripped it up, would that constitute "desecration?" Who decides? Are we going to have 50 different state laws on this subject?
The conservatives -- as most but not all of those who favored the provision call themselves -- that are championing this proposal like to spend a lot of time talking about limited government, but this flag protection amendment certainly doesn't sound like any notion of limited government.
One major sponsor of this proposal, Congressman Henry Hyde, (R-Ill.) likened a Constitutional amendment protecting the American flag to laws against vandalizing grave sites. While it certainly shouldn't be legal to vandalize a flag that belongs to someone else, a flag that you or I might purchase at a store does not in any sense belong to others or to the government, unlike the gravestone Congressman Hyde is talking about.
The backers of this amendment talk a great deal about how some American people don't sufficiently appreciate their freedom, which is symbolized by the American flag. Such ingratitude, in their view, necessitates the passage of an amendment designed to protect Old Glory. One member of Congress touting this proposal talked about how lucky Americans are to live in a free country as opposed to a regime like that of Fidel Castro in Cuba.
But think about these statements for a minute. If people need to be forced to appreciate their freedom, does that not in some way defeat the purpose of that freedom? And the fact that someone would bring up Communism is sort of fitting in a way: Anyone caught "desecrating" the national flag in Castro's Cuba would get incarcerated. So why would the United States, if it were such a free country, want to emulate the example of Castro's Cuba? When one actually thinks about it, limiting the actual freedoms Americans have at the expense of the symbol of those freedoms makes no sense.
Many conservatives claim that the vast majority of the American public wants to see the American flag protected from desecration. While there is probably a great deal of truth in that statement, that truth is irrelevant. The First Amendment is not designed just to protect things that are popular or politically feasible. These things in most cases need no Constitutional protection. It is those thoughts and words that are unpopular with the American public or the American government that the First Amendment is designed to protect.
If a majority decides your mode of expression is inappropriate, does it become, by definition, inappropriate? This question has little to do with political affiliation; it was not an arch-liberal who said "Democracy is trivialized when reduced to simple majoritarianism," it was conservative commentator George Will. So it would be wise for one to consider such a question before attempting to claim, as the sponsors of the flag protection amendment often do, that burning or otherwise "desecrating" an American flag is for some reason not legitimate free speech.
At first, this amendment sounds very appealing, particularly in an age such as our own. By providing a common symbol of all that is American, it seeks to unify our diverse peoples. But the more consideration one gives to this sort of proposal, the more one realizes it will do the exact opposite, since it is both unworkable and un-American. Wayne Gilchrest, a Republican Congressman from Maryland with enough courage to break with his leadership to oppose this popular but ill-conceived proposal, speaks wisely when he says that, while it is "wrong to wrap oneself in the Constitution and burn the American flag ... it is worse to wrap oneself in the American flag and burn the Constitution."
