Flag amendment raises symbol above liberty

Monday, July 30, 2001

Few political actions have more consequences than amending the U.S. Constitution, a document that has served us well for more than two centuries. Of all the constitutional amendments proposed in Congress only 27 have been ratified — and one of those, the prohibition amendment, was repealed by a subsequent amendment.

The Constitution was “intended to endure for ages to come,” as Chief Justice John Marshall wrote. Amendments should not be used for short-term political goals. The conservative approach means amending the Constitution sparingly and thoughtfully. Unfortunately, there are currently 50 bills pending in the House to amend the Constitution — from repealing the 22nd Amendment, limiting a president's years in office, to making English the nation's official language.

[On July 17,] the U.S. House voted for the fourth time in six years to prohibit the desecration of the American flag through an amendment to the Constitution (House Joint Resolution 36). Two-thirds of the members of the House have dismissed the free speech implications of such an amendment. The amendment would allow Congress to criminalize a certain kind of dissent — dissent that burns the flag to show disapproval of the nation's leadership or its policies.

The proposed amendment is so vague that the reach of its prohibition is unclear and the authority it grants to Congress appears vast. The amendment simply states: “The Congress shall have the power to prohibit the physical desecration of the flag of the United States.” It neither spells out the extent of that “power” in terms of penalties, nor does it define “physical desecration.”

The amendment is all the more dangerous because it shifts power from individual liberty to government.

Let us remember what our founders knew and expressed clearly: Our liberties are a birthright. Members of Congress have no right to vote to limit a fundamental birthright — freedom of expression.

Amendments to the Constitution should be consistent with the history and legal philosophy of that founding document. The Constitution was grounded in a broad notion of liberty and informed self-governance.

Self-governance, to be truly informed, must accept and respect dissent. Our own history, as well as the world's, has shown that the voices of dissent often become a corrective force that a nation needs to put aside policies that no longer work or are harmful. Dissent plays an important role in a democratic country where the people enter public debate on important issues.

This nation was founded on dissent — dissent from policies set down by the King of England. This nation has stood for more than 200 years by guarding its liberties.

Waving a flag along the route of a patriotic march sends a message. The person waving the flag supports the reason for and meaning of the march. Someone who burned a flag at that march sends the opposite message. It is dissent. Flag desecration has been a message of dissent since the American Revolution when this nation's colonists burned the British flag, flew it upside down, trampled on it and altered it.

Several years ago, former Marine Gary May, who lost both legs during combat in Vietnam, testified before the Senate on the flag amendment. His message said it clearly and succinctly: “Freedom is what makes the United States of America strong and great — it is what has kept our democracy strong for more than 200 years. The pride and honor veterans like me feel is not in the flag itself, but in the principles the flag stands for and in the people who have defended them.”

The flag desecration amendment would raise the cloth of the flag above the very liberties it symbolizes. Indeed, it would raise the flag to the level of a religious icon.

Wyoming's U.S. senators should weigh the consequences of doing so. And they must weigh the consequences of an amendment to the U.S. Constitution that will restrict dissent.

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