Stars, stripes and cell phones: Symbols are secondary in a nation founded on freedom

Sunday, April 7, 2002

It was a classic American moment: the San Francisco Giants on the field, the national anthem on the public address system — and one jerk on his cell phone.

While thousands around him doffed their hats and turned to the flag before the game began, this man, who appeared to be in his mid-30s, kept both his baseball cap and his cell phone on, oblivious to the ceremony.

He also was oblivious to the angry reactions of those around him. Fans glared at him, and at the close of the song, several muttered about the lack of respect. But no epithets were tossed or punches thrown. These were polite patriots. One man said, “This guy deserves to have his ass kicked,” but then apologized to other fans for his language.

I was a little surprised at just how irritated I was. I found myself hoping for a line drive off the man’s head.

If one guy with a cell phone can stir so much emotion at a recent ballgame, it’s little wonder that terrorist attacks on New York and Washington have led to a new wave of patriotism all across the United States. This, in turn, has fueled a well-intentioned but destructive movement to bar flag burning by passing a constitutional amendment.

At first glance, most Americans are inclined to provide constitutional protection for the national symbol. The very notion that people would burn a flag — even if it’s their own flag on their own property — is bothersome.

Still, it would surprise most Americans to note the Founding Fathers were not particularly concerned with protecting the flag. In fact, as detailed in Robert Justin Goldstein’s excellent book, Saving Old Glory, the U.S. flag was not a particularly important symbol for the first 75 years of the nation’s existence. It wasn’t until the Civil War that the flag — symbolizing the Union — came to have real sentimental value for Americans.

Further, the first efforts to prevent flag desecration had nothing to with flag burning. The original concept was to prevent the tacky use of the American flag in advertising. We all know how well that’s turned out.

In time, flag-desecration laws were applied to people who burned flags to protest U.S. government policy. People were imprisoned for burning flags; one young man was even jailed for wearing a flag patch on the seat of his pants.

In 1989, and again in 1990, the U.S. Supreme Court found that burning a U.S. flag in protest was in fact an exercise of free speech. This decision made legal sense. It also made common sense.

After all, when someone burns an American flag, they’re conveying a political message that you couldn’t duplicate by burning a bath towel. And the only motive for punishing the burning of one’s own private property is to silence an opinion you find unpalatable.

Normally, a Supreme Court decision puts an end to litigation and maneuvering. After all, there’s no higher court to which you can direct your appeal.

The only option left to veterans groups, who felt strongly that the flag needed protection — even if it meant changing the very fiber of the U.S. Constitution — was to spend more than $15 million lobbying Congress for an amendment.

From the beginning, voting for an amendment was politically irresistible. Members of the House of Representatives — subject to re-election every two years — have always voted for it in overwhelming numbers. In the Senate, the measure has fallen short of the two-thirds majority by a handful of votes. If it ever passes there, it will go to the states for ratification.

Over the last few years, 49 of the 50 states have already passed resolutions saying they will ratify the amendment if it is sent to them. The sole holdout was Vermont, a state with an independent streak and a real understanding of the risk of tampering with the Constitution to prevent a dozen or so people from burning their own U.S. flags each year.

For years, the political equation stayed the same. The House supported the amendment, the Senate was within a few votes of approving it, and the states were ready to hop on the bandwagon.

Two years ago, something remarkable happened. Some thoughtful leaders at both ends of the political spectrum recognized that “protecting” the flag would harm the Constitution. For the first time in the history of this country, we would be subtracting a freedom from the Bill of Rights.

Throughout the history of this nation, amendments have been used to give greater freedom: to give equal protection to all citizens; to give the vote to women and 18-year-olds.

The most flagrant example of denying liberty through an amendment came with the passage of Prohibition. In short order, a new amendment had to be passed to repeal it. Simply put, amendments should preserve the power of the people and not curtail freedom.

In announcing his objection to the proposed constitutional amendment, Sen. Robert Byrd, D-W.Va., may have said it best: “The flag is a symbol of the republic, the symbol of what the Constitution provides. It is not the flag that provides it. It is the Constitution of the United States. It is that Constitution that provides us with the rights that all Americans enjoy, regardless of race, regardless of color, regardless of national origin, regardless of sex. It isn’t the flag.”

For a time, it appeared that the flag-desecration controversy would disappear. The move to take free-expression rights away from Americans was losing steam, and it was time to move on.

Then came the tragic events of Sept. 11. Suddenly the effort to rewrite the Constitution gained new momentum.

Vermont — the one state to stand against the tide — passed a resolution supporting congressional protection of the flag. As Jack Hoffman of The Rutland Herald reported, “the Legislature resisted this national campaign for a long time, but after the terrorist attacks of Sept. 11, that resistance crumbled.”

A few weeks ago, the Citizens Flag Alliance, a coalition of groups supporting the flag-desecration amendment, issued the results of a new opinion poll: 49% of those surveyed said they valued the flag more since the terrorist attacks of Sept. 11. The alliance contended that three out of four Americans want the Senate to approve the flag amendment and reported — somewhat ominously — that half of those surveyed said that the flag issue alone would lead them to vote against any senator who opposed the amendment.

It’s easy to understand the emotional appeal of a flag-desecration amendment, particularly at this time. Still, I’m not sure that the survey asked all the right questions. The next time they go into the field, I suggest the following:

  • Do you think an appropriate response to an unpopular Supreme Court decision is to change the U.S. Constitution?
  • If so, what other parts of the Bill of Rights should we consider revoking? The right to bear arms? The right to privacy? What about reproductive freedom? After all, each of those rights depends upon controversial federal court or Supreme Court rulings. With just a few more amendments, we can erase a number of unpopular decisions.
  • After we ban flag burning, what other objects should be protected? Surely the Bible shouldn’t be burned or torn. What about the Book of Mormon? The Quran?

Changing the U.S. Constitution to prevent someone from burning his own flag would compel everyone in this country to respect the Stars and Stripes. If we’re ready to take that step, then we should also make mandatory the singing of the national anthem and the reciting of the Pledge of Allegiance.

And while we’re at it, we need to haul off anybody who uses a cell phone at a ballgame during “The Star-Spangled Banner.”

That kind of strategy — exemplified by the flag-desecration amendment — would ensure the protection of our most treasured symbols of freedom.

In the end, though, we would have the symbols and lose the freedom.

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