- The Washington Times - Wednesday, March 29, 2000


Laws reflect a nation's culture and Constitution. Both govern a people's relationship with the government. Sometimes, however, the two collide and the nation's leaders must decide between expressing the culture through law or abiding by constitutional restraints that limit government powers to do so. This is the dilemma the U.S. Senate is scheduled to grapple with today when it takes up a constitutional amendment to give Congress the power to ban flag desecration.
There is no question about the amendment's popularity. Last year it passed the House 305-124, more than enough to satisfy the required two-thirds majority. If the Senate does approve it now, the last hurdle is ratification by three-fourths of the states, which is expected to happen with relative ease.
Readers of this page will recall the reasons outlined here last July against granting Congress this power: 1) For the first time, free speech would have a definite limit even the courts couldn't expand; 2) banning flag-burning would probably only induce more people to set Old Glory alight; 3) it would be the only standing constitutional amendment to expand not curtail the power of the federal government.
The latter is particularly important. The Constitution is the document that not only maps out the scope of the power of the federal government, but also transfers the power to govern from a consenting peoples. The Founders carefully divided this power among several branches of government, the states and the people. They then adopted the first 10 amendments, now called the Bill of Rights, as more than simply limits on government's power, but rather an enumeration of rights on which government could not trample. The succeeding amendments followed this pattern, either limiting the power of the government or further granting rights that could not be denied. The exception, of course was Prohibition, which was repealed.
The proposed constitutional amendment to allow Congress to ban desecration of the flag runs counter to this tradition. It could therefore invite further mischief to expand the scope and reach of the federal government. If that were to happen, those who use the Interstate Commerce clause to justify every expansive federal statute would have yet another weapon in their arsenal.
Conservatives in the Senate should take this opportunity to burn a flag the white flag the faint-of-heart seem to fly on every tough issue. It is time to say, "We trust the American people with their flag" with a vote against this constitutional amendment.

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