Flags and Freedom

As some of you may already know, the US House of Representatives passed an amendment to the Constitution of the United States that states, "The Congress shall have power to prohibit the physical desecration of the flag of the United States." In order to become part of the Constitution, the Senate must pass it with a two-thirds majority, and then the legislatures of at least 38 states must ratify it within seven years. I would like to go on record as opposing this amendment as I believe it would be an unacceptable restriction of free speech.

The amendments to the Constitution have each done one or more of the following:

• Enumerated or expanded a right or rights of the people.


• Placed additional limits on Congress.


• Clarified the structure of government, rules of succession, and/or methods of election of government officials.


• Provided additional powers to Congress.


• Prohibited an activity to the people.

The last one was performed by precisely one amendment, the Eighteenth Amendment which initiated Prohibition. It is also the only amendment which has since been repealed. If you look at all the amendments, you see that the Eighteenth is the only one that specifically reduced the freedom of the people, that actually told the people that they could not do something. All other prohibitions at the Federal level have been in the form of laws passed by Congress.

The proposed amendment addressing desecration of the flag ostensibly gives an additional power to Congress. As such it is not *quite* as bad as the Eighteenth. However, as a practical matter, it would effectively ban such activity as any Congress which passes this amendment would immediately act under the power it grants to criminalize that activity once the amendment is ratified by the states. It's possible that the structure of the Congress would change sufficiently in the time it takes the states to ratify the amendment but it is by no means guaranteed.

I really can't say whether or not I think this amendment would be ratified by the states. I don't think it has much of a chance of passing the Senate but stranger things have happened. If it does become part of the Constitution, then it will open a door that is best left closed. The GeekWithA.45 sums it up nicely:

The promotion of flag burning to a crime theoretically punishable by loss of life, property or liberty is to place a higher value on intangible symbols and cloth than the inalienable rights of free men.

While I disagree with the act of burning the flag, I believe that it is a valid exercize of free speech. I believe the proper way of addressing those who do so is to exercize my right of free speech to speak out against them, and to attack their beliefs and opinions with well-reasoned arguments. It's more difficult but, in the end, it will be more effective.