- The Washington Times - Tuesday, April 4, 2000

Constitutional amendments are the pillars of American society. In addition to the first 10 (the Bill of Rights), amendments have been used to ban slavery, establish equal protection for racial minorities and guarantee the right to vote for women.

Recently, however, the United States Senate narrowly avoided what would have been a first for a constitutional amendment neutralizing the protections afforded by the Bill of Rights, specifically, free speech. The proposed amendment would have banned "physical desecration" of the American flag. Referred to as the "Flag Burning Amendment," the suggested language stated simply, "Congress shall have the power to prohibit the physical desecration of the flag of the United States."

The amendment narrowly failed in a 63-37 vote 96 just four votes short of the required two-thirds majority. If the measure had survived the Senate, its ultimate passage would have been all but assured because the House has approved the amendment three times already. In addition, 49 state legislatures have sent measures to Congress urging them to pass it, a number well in excess of the three-quarters of states needed to pass an amendment to the Constitution.

But the issue certainly is not dead. As long as elected officials are willing to play politics with the Constitution since there aren't many flag burners in this country the push for the Flag Burning Amendment will survive.

The reason supporters have turned to an amendment is because the Supreme Court has made it clear that flag burning is protected by the First Amendment. In 1989, the court confronted the situation in the case of Texas vs. Johnson.

During the 1984 Republican National Convention in Dallas, Gregory Johnson burned a flag in protest of the policies of the Reagan administration. Mr. Johnson was arrested and convicted of desecration of a venerated object in violation of a Texas statute, but the Texas Court of Criminal Appeals reversed the conviction. Texas officials then appealed to the Supreme Court, which both took the case and affirmed the lower court decision.

In a majority decision joined by such icons of conservatism as Justice Scalia, the court agreed that Mr. Johnson's burning of the flag was political expression protected by the Constitution. And despite the fact that observers were angry and offended at Mr. Johnson's act, the court said their reaction was not a sufficient reason to override constitutional expression.

"If there is a bedrock principle underlying the First Amendment," wrote Justice William Brennan, "it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable."

In light of this decision, a constitutional amendment is the only option for those who believe flag burning should be outlawed. The Supreme Court is the final arbiter of constitutional interpretation, so mere legislation by Congress would be nullified by the court.

The primary reason advanced in support of the amendment is patriotism. The argument, outlined by Chief Justice William Rehnquist in his dissenting opinion in Texas vs. Johnson, is that the flag holds a special place in American society. It is the symbol of national unity, and thus must be protected in a special manner.

But this approach fails to recognize the equally historic nature of freedom of expression. America is unique because of her willingness to foster political dialogue, not silence it. In fact, renowned modern American heroes such as Medal of Honor winner Sen. Bob Kerrey, Nebraska Democrat, oppose the Flag Burning Amendment. Mr. Kerrey understands he fought not only so the flag could continue to wave but also that those who disagree with the policies of our government could burn the flag in protest.

Like any American who served in the Armed Forces and fought to protect the flag and the freedom it stands for, it disturbs me when I see someone burn the flag. But then I am reminded of the words of Justice Brennan:

"The way to preserve the flag's special role is not to punish those who feel differently about these matters. It is to persuade them that they are wrong. We can imagine no more appropriate response to burning a flag than waving one's own, no better way to counter a flag burner's message than by saluting the flag that burns, no surer means of preserving the dignity even of the flag that burned than by according its remains a respectful burial."

John Whitehead is a constitutional attorney and author and is the president of the Rutherford Institute in Charlottesville, Va.

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