Flying the flag, flouting the First Amendment

Wednesday, April 1, 1998

Matters of moment, such as a proposed constitutional amendment, seem to move glacially, yet often arrive unexpectedly and with little warning of their crushing force.

That certainly seems to be the case with the flag-desecration amendment, which would — for the first time in two centuries — limit constitutional protections of basic rights.

Because this proposal visits Congress with regularity and has been defeated before, we have grown complacent. We seem unmindful that the House of Representatives approved the latest proposal by an overwhelming majority. We seem unimpressed that 49 states already have passed resolutions in support of the amendment. We seem to forget that the last time around, the flag amendment failed congressional approval by a slim three-vote margin in the Senate, and that those votes are wavering this time around.

Now, as this amendment makes its way quietly through the U.S. Senate, time and votes are slipping away. Before we know it, we could have an amendment to the Constitution that would put beyond the reach of reason or the courts the question of whether those in power can prohibit and punish the political speech of those not in power.

Last week's Senate hearing on the proposal demonstrates the scope and nature of the threat.

There was no press coverage of the hearing on March 25 before the Subcommittee on the Constitution, Federalism, and Property Rights of the Senate Committee on the Judiciary. There was less than a handful of opponents of the proposal present. The committee staff had invited eight people to testify in favor of the amendment and only four against.

Yet Senate Dirksen Building Room 226 was jammed to the rafters with members of the American Legion and the Citizens Flag Alliance, good and sincere people with a passionate desire to protect the flag.

The highlight of the hearing was the appearance of Judiciary Committee Chair Orrin Hatch (R-Utah), who introduced the flag-desecration amendment in the Senate, along with 60 other sponsors. His ringing denunciation of the degradation of American values ranged from rhetoric to rant as he repeatedly called on his colleagues to “send a message” by approving the amendment.

“There is a line that has to be drawn,” said Hatch, “and this is a perfect way of sending the message that we're tired of being tolerant of everything bad and intolerant of everything good.”

To the applause of the audience, Hatch said, “We've allowed some of this gibberish to go on for too long. I'd like to draw a line. I'd like to draw the line with this amendment.”

The theme of the hearing for proponents of the amendment was that burning of the flag as political dissent is not “true speech,” and that, besides, the majority of Americans are against such expression.

Speaking against the amendment in his opening statement, Sen. Russ Feingold (D-Wis.) reminded the audience, “We are not a nation of symbols. We are a nation of principles. In America, we tolerate dissent and protect the dissenters.”

But clearly it was a day for those committed to flying the flag and flouting the First Amendment.

So, the proposal moves forward while the public and the press pay little heed. As has often been the case, the Senate action will come with little notice and undoubtedly catch off guard both the public and the press, all of whom were waiting until “the end of the process” to “do something.”

At the end of this process, there won't be anything left to do but lament that for the first time in our two centuries of existence the Bill of Rights will have been compromised. At the end of this process, it will all be over but the shouting — and the gnashing of teeth.

Make no mistake about it: This proposal will do grievous harm not just to the First Amendment, not just to the Bill of Rights, not just to the Constitution, but to our time-honored tradition of no holds-barred political discourse — which had easily survived the miscreant with a match as well as the demagogic leader.

The first 10 amendments to our Constitution were imposed by the states and citizens as a condition of ratifying the Constitution in order to preserve such fundamental freedoms as the right to bear arms, the right to be secure in our homes, the right to a fair trial, and the right to freedom of speech. The Bill of Rights placed restraints on the political power of government; this amendment proposes to turn that principle around and place restraints on the political expression of the people.

If that happens, it won't be enough to say we never saw it coming.


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