- The Washington Times - Tuesday, March 28, 2000

Today the United States Senate is expected vote on the flag protection constitutional amendment, S.J. Res. 14. The amendment reads simply: "Congress shall have the power to prohibit the physical desecration of the flag of the United States."

This amendment will return to the American people the right to protect the American flag from desecration and disgrace. It is a right fixed in 200 years of our nation's traditions, state and federal laws, and in the holdings of countless state courts and five separate Supreme Courts.

It is a right reflected in the views of our Founding Fathers and the Framers of our Constitution, such as James Madison and Thomas Jefferson, who supported legal protections for the flag. It is a right encompassed in the words of Supreme Court Justice Hugo Black, perhaps the leading exponent of First Amendment freedoms to ever sit on the Supreme Court, who stated: "It passes my belief that anything in the Federal Constitution bars making the deliberate burning of the American flag an offense." It is a right that, for all but the last nine years of our history, has coexisted with and complemented our abundant constitutional rights.

In 1989, a razor thin, five-four decision of the Supreme Court wrested from the American people the right to protect the flag and, in so doing, contradicted and confused the common, historical compatibility of flag protection and the First Amendment. The flag protection amendment authorizes, but does not direct the Congress subject to the will of the American people to reverse the Supreme Court's mistake. The flag amendment will not undermine the Constitution or the First Amendment; rather it will restore our guiding document and the freedoms encompassed therein to their time-honored understanding and interpretation.

The flag protection constitutional amendment also represents an important step toward returning to the American people something equally important, though somewhat ephemeral and certainly more elusive in recent days our common heritage and values, and even our basic sense of right and wrong.

Some may wonder what flag protection has to do with right and wrong. Some might suggest that "anyone who desecrates the flag is merely asserting a First Amendment right." Some may believe that considering and adopting an amendment to protect the flag is tantamount to undermining the Bill of Rights. I could not disagree more.

We need to make unequivocally clear that certain behavior in this country is and should be recognized as wrong and punishable by law. After all, laws are based on our values, not vice-versa. Far from injuring the Constitution, by passing the flag protection constitutional amendment, we are reaffirming the very basis of the Constitution. We not only are heeding the will of the people, who consider flag desecration despicable and vulgar conduct, we also are recognizing the importance of shared values, under which certain actions, no matter how beholden to legal nicety, will not be tolerated.

As much as we rightfully celebrate individual rights in this country, we also must recognize that the needs of our community on occasion must outweigh those of the individual. In my view, we have lost sight of this important balance. Our sense of morality is adrift. We must recapture and reinvigorate the importance of our responsibilities as citizens, to each other and to our communities. It is these responsibilities, after all, that form the basis for, indeed that justify, our individual rights.

Our obligation to community and country and our responsibility as American citizens to each other should compel us to combat divisiveness, selfishness and immorality. The flag protection constitutional amendment is but one step albeit a critically important one toward reorienting our moral compass. The flag amendment is consistent with our shared values and with our historical experience, in which reasonable limitations on our personal conduct and public affairs coexist with individual freedoms perhaps unequaled in the world.

I readily admit that amending the Constitution is an extraordinary step that should not be pursued lightly. Indeed, I would have preferred to enact statutory protections for the flag. In fact, in 1989, Congress enacted such as statute by an overwhelming bipartisan majority of both the Senate (91-9) and the House of Representatives (380-38). However, the Supreme Court struck down that statute and indicated very clearly that any flag protection statute would meet the same fate. Thus, we are taking the additional step, through a constitutional amendment process envisioned by the Framers of our Constitution in Article V, to authorize Congress to enact such a statute.

The flag protection constitutional amendment is before the Senate today having navigated an exacting, yet inherently democratic constitutional process. A vast majority of Americans support the amendment. A bipartisan supermajority of the House of Representatives has adopted this amendment. Forty-nine state legislatures have enacted memorializing resolutions asking Congress to send this amendment to the states for ratification. In every sense, the Article V constitutional amendment process is functioning as our Framers intended.

It is now time for the Senate to heed the will of the people and pass the flag protection constitutional amendment. To do otherwise will not advance our common morality and the system of ordered liberty encompassed in our history, laws and traditions. We must restore the Constitution and the First Amendment, send the flag amendment to the states that have requested it with near unanimity, and return to the American people the right to protect the flag of the United States.



Orrin G. Hatch, Utah Republican, is a member of the United States Senate.

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