It happens every few years. Those trying to reverse an old 5-to-4 decision of the U.S. Supreme Court that made flag-burning a constitutional right petition Congress for redress. And every few years, the House approves a constitutional amendment that would protect the flag, and the Senate proceeds to turn it down. But by fewer and fewer votes.
This time the amendment fell only one — one — vote short of passage in the Senate. It was another sign that we happy few who began this fight are becoming we happy many.
After all these years, the Flag Amendment itself has become a symbol of American grit and glory, and its advocates aren’t about to haul it down.
Those on the other side of the issue tell us the flag is a symbol much like any other, and that disrespecting it is just an expression of opinion, the kind that should be protected by the First Amendment.
These sophisticates keep trying to explain to us yokels out here that burning the flag of the United States isn’t action but speech, and therefore should remain a constitutionally protected right. But a lot of Americans, poor naifs that we are, remain under the impression that burning the flag is burning the flag, not making a speech.
Facts are stubborn things, as old John Adams once noted, and We the People can tell the difference between speech and action.
What we have here is a failure to make elemental distinctions in our confused public discourse. Every time that ability fades, the airiest sophistries are wheeled out to fill the vacuum created when reason abdicates. So it was only to be expected that those who oppose protecting the flag would wrap themselves in the First Amendment and contend that an act is just another form of speech.
But it isn’t criticizing the flag that some of us propose to ban. Any street corner orator should be able to stand on a soapbox and badmouth the American flag all day long — and apple pie and motherhood, too, if that’s his inclination. It’s a free country.
It is actually assaulting Old Glory, it’s defacing the Stars and Stripes, it’s an act, the physical desecration of the flag of the United States, that ought to be against the law, just as it once was. The Flag Amendment would ban an indecent act, not an exercise of free speech.
The flag is just a symbol, we’re told, so why the fuss? Just a symbol? “We live by symbols,” a justice of the United States Supreme Court named Felix Frankfurter once observed. There are symbols, and there are Symbols. There are some so rooted in history and custom, and in the heroic imagination of a nation, that they transcend the merely symbolic; they become living presences.
No, this is not an argument over who loves the flag more. Patriots not only can disagree; American ones almost have an obligation to. And no one political persuasion has a monopoly on the American flag. May it long wave over every kind of political rally.
But neither is this a fight over who loves the Bill of Rights more. And those of us who favor a simple, limited constitutional amendment to protect the flag have every reason to resent it when others accuse us of being opposed to the First Amendment.
Ours is a time of impermanence, of virtual reality in which acts become speech, and speech is said to include the basest actions. The effect is that both speech and action lose their moral power.
Whether it is the small gesture that adorns daily life or a common respect for the national flag, our public discourse seems to have lost touch with the symbolic, and therefore with much of the grace of public life. American society no longer seems able to value simple gifts, like the respectful gestures that make it a society instead of just a lot of sound and fury signifying nothing much.
What the Victorians knew without having to say, we must now laboriously explain. Like why the flag demands respect. Yet the law, that great teacher, stands mute — for the moment. But the Flag Amendment will be back. And so will We the People. We have only begun to fight.
Paul Greenberg is a nationally syndicated columnist.