The Washington Times
When I was a kid, on the Fourth of July, Dad and I used to drag the stereo speakers out onto the back porch in the morning and treat the neighborhood to a rousing full-blast rendition of “The Stars and Stripes Forever.” Fortunately for the composure of the neighborhood, stereos were a lot less powerful in those days than they are now. Nevertheless, it made an impression.
I didn’t really know it at the time, but this holiday ritual was taking place against the backdrop of rising protest against the war in Vietnam, including demonstrations at which the American flag was burned as a protest against a war described variously as immoral and imperialistic. Our John Philip Sousa march was, in a way, Dad’s rejoinder. I guess from Dad’s point of view, if there were a constitutional right to burn the flag to make your political point, there must be a constitutional right to blast a patriotic march from your record player at 8 in the morning on Independence Day in order to make your point, too.
Last week, the Senate fell one vote short of approving a constitutional amendment that would ban flag-burning. To tell you the truth, I’m not that crazy about such a constitutional amendment, for the simple reason that flag-burning is unique in the annals of protest for the way in which it perfectly encapsulates what a jerk the person burning the flag is. It is auto-discrediting in a way that no placard or chant, however idiotic, can equal. To set fire to the national emblem of a country that allows you to say and do as you please, including burning the national emblem, is to make the point that your freedom is so visceral a part of your nature that you are oblivious to it. It doesn’t reflect well on you to be oblivious in this fashion, but it reflects well on your country for how deeply it ingrains the spirit of freedom into those lucky enough to live here.
That said, the last thing that a constitutional amendment banning flag-burning strikes me as is a slippery slope toward broader restriction on freedom of expression. There are two reasons for this.
First, the flag is the flag; the only reason to accord it special status (if that’s what you decide) is that it is, in fact, the singular national symbol. We are not even talking about a ban on burning red, white and blue things, such as bunting, nor of suppressing the debate over whether banning the burning of the flag is a good thing. It’s not hypocrisy but rather a pretty good philosophical point to say that the flag, as the symbol of the freedom to burn, baby, burn, is the one thing you shouldn’t burn. For if you burn the freedom to burn, you have no freedom. For more on the danger that lies in this direction, see the collapse of the Weimar Republic in Germany.
On the other hand, the flag is not the freedom itself but its symbol. The freedom continues even if a particular flag is consumed in fire. To burn the flag is not to burn the only flag. There is no “the” flag, only flags; or if there is “the” flag, it is an idea of the flag and therefore beyond the reach of the flames.
Except that a perfectly acceptable way to dispose of a worn-out flag, according to the old Boy Scout manuals Dad gave me, is by burning. The ceremony is to be at all times respectful and somber. Here, one reveres “the” flag by seeing to it that “a” flag gets decommissioned properly. So the symbolic content is always present. When someone burns a flag in protest, it’s just not about the fire and the piece of cloth. The flag is indeed a symbol of a political community, and I’m not sure that political communities can get by without symbols.
The second reason I’m not worried about a slippery slope constricting expression once you ban flag-burning is that in the current environment, socially enforced restraints on expression are far broader and more important than legal restraints. In the case of flag-burning, if you do it now, most Americans will think you are an ingrate jerk, as noted above. But even if a constitutional amendment passes, no one is proposing the death penalty for flag-burning, nor life in prison. If you get busted, you can probably look forward to a few days in the clink, plus adulatory editorials in the New York Times.
So while I am not a great supporter of an amendment banning flag-burning, neither do I think that such an amendment would do harm if passed. If I were a member of the Senate, I would have voted for it. That’s because as an elected officeholder, I would feel more solicitous of the national symbol, as perhaps befits someone who has chosen to hold office in accordance with the principles and procedures of the political community in question.