Yesterday, the Senate voted down a proposed constitutional amendment protecting the American flag from desecration. Every few years, the Senate considers a constitutional amendment to ban flag burning, and every few years, the Senate kills it. Many of our esteemed senators tell us the First Amendment is about protecting the rights of those who would spit on the nation; they say we should have better things to do than worry about those who would excrete on the flag; they tell us our founders would be ashamed of an amendment to protect the flag. They are fools of the highest order.
The First Amendment guarantees freedom of speech. It protects political speech designed to contribute to the political debate. As James Madison and Thomas Jefferson wrote in the Virginia Resolution of 1798, “[the] right of freely examining public characters and measures, and of free communication among the people thereon … [has] been justly deemed … the only effectual guardian of every other right.”
Not all expression or speech contributes to the political debate. That is why the First Amendment does not protect flag burning, just as it does not protect lap dances, sodomy, public nudity or child pornography. All of these may be labeled “expressive speech.” All of them would land you in jail for most of our history. For nearly two centuries, states prosecuted flag burners. And for nearly 200 years, the federal courts recognized that the First Amendment did not prohibit states from such prosecution.
In 1989, the Supreme Court suddenly decided that 200 years of legal interpretation were dead wrong. “The way to preserve the flag’s special role is not to punish those who feel differently about these matters,” wrote Justice Brennan. “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 – as one witness here did – according its remains a respectful burial.”
This is idiocy, and dangerous idiocy at that. The American flag represents our nation; it represents American values; it represents the blood of those who have died and continue to die on battlefields across the world to protect our freedoms. The American flag does not represent the nonexistent right of traitors to desecrate the stars and bars. When the American flag is burned, it represents a denial of the most fundamental notion of citizenship. Those who burn the flag are no less traitors than those who renounce their citizenship to fight with our enemies. To state that burning the flag is a legitimate form of expression and that we should respond by waving a flag of our own, is to turn political debate from cogent argument to slogan-screaming.
If America is to survive, we must recognize that all parties in political debate have a common ground: belief in America as a nation. The flag represents that belief. Once that common ground is burned, our republic becomes nothing more than an agglomeration of selfish interest groups fighting over scraps of meat.
And yet we are told that to protect those who reject such common ground is noble. “If freedom of speech means anything, it means that we must tolerate not just views we approve but views we oppose,” says Sen. Ted Kennedy, D-Mass.
We are told that to deny such common ground is unimportant. “There are scarcely any instances across America where people are burning the flag. And yet, now we want to set aside the important business of the Senate, health care and energy policy and education, and debate for an entire week this concept of amending our Bill of Rights,” says Sen. Dick Durbin, D-Ill.
Protecting those who urinate, defecate, burn or stomp on our flag is not noble. Protecting our flag from such animals is not unimportant. Our flag is not merely a piece of cloth. Burning the flag is not exercising free speech, but denying American nationhood. We disgrace our origins, our soldiers and ourselves by allowing flag desecration an honored place in the constitutional pantheon of rights.
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