This past week the United States Senate came within one vote of approving the 28 amendment to the Constitution and passing it along for state ratification. After lengthy debate, long speeches, and a healthy public conversation, the so called Flag Desecration Amendment was, unfortunately, defeated.With such a close vote, both sides of the argument have their merit. However, the opposition failed to demonstrate that flag burning should be a right protected by the First Amendment.
Since the 1989 Supreme Court case, Texas v. Johnson, flag burning has been protected as a constitutional right under the First Amendment and considered an acceptable form of symbolic speech. Supporters of the Flag Desecration amendment seek to override that decision by stating that, "The Congress shall have the power to prohibit the physical desecration of the flag of the United States."
The debate concerns whether or not legislative bodies in the United States should be able to consider flag burning a criminal act. Many consider, short of a physical altercation or incitement, flag burning to be the highest act of disrespect to those who risk life and limb in military service and who stand proudly under the flag. It is no light act, but regrettably flag burning is trivialized by many who support the highest degrees of First Amendment rights.
However, it must be noted for comparison that some forms of protest are, in fact, not protected by the First Amendment. For example, the right to burn a draft card is not protected because symbolically the card represents impending military service, which during a draft is not optional.In the same way, the United States' flag represents a "living country" and burning the flag goes beyond protest or disrespect; symbolically, it is the equivalent of lighting the Capitol building on fire.In 1974 Justice Byron White wrote, "[T]here would seem to be little question about the power of Congress to forbid the mutilation of the Lincoln Memorial or to prevent overlaying it with words or other objects. The flag is itself a monument, subject to similar protection." It is senseless that we should protect a person's right to destroy a monument when he is allowed to express his views effectively in almost any other way.
Though obviously more widely distributed, the United States' flag, indeed, is a monument of this country and must therefore be protected as such.It is unlike regular private property or just a piece of fabric because of its ubiquity and symbolism. The burning of the flag represents a violent act against the framework of this country. During a protest the burning of the flag could likely insight excessive and unregulated hostility because of its powerful symbolism.There is a threat built into the act of flag burning which goes beyond the mere cloth of the flag; it should be considered an act of aggression and punished as such.
Of course, for most the right to burn the flag is not about whether or not it should be esteemed. Instead, opponents believe that First Amendments rights, namely speech, are violated by criminalizing flag desecration. It is silly and shortsighted to oppose the Flag Desecration Amendment on the basis that somehow it will set precedent for the molestation of the cherished First Amendment and the Bill of Rights. This argument is an emotional tactic used to manipulate the opinions of those who have not paid close attention to the language of the proposed amendment and those unacquainted with the Constitutional regulation of some speech.
For the record, instead of out and out banning flag desecration, the amendment allows the Congress and state legislative bodies to decide how the flag should be protected from violation. Under the current Texas v. Johnson precedent virtually all laws on the books preventing flag desecration are unconstitutional. With the Flag Desecration Amendment, legislative bodies would have the right to protect the dignity of the United States' flag.
In a country where the right to say, write, petition or protest almost anything is guaranteed and protected citizens should be grateful for their country and respect its flag. Currently, the law, under Title 4, Chapter 1, Section 8, says, "No disrespect should be shown to the flag of the United States of America...The flag represents a living country and is itself considered a living thing
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