Tuesday, May 1, 2012

The Flag and the First Amendment

Question:  I believe there should be a Constitutional Amendment against flag burning in protest.  What is your view of that?

Answer:  You refer to modern history, which has spawned a class of people who seek to provoke the public not by passive disregard of the flag, but by outright public desecration of the flag, as a display of contempt for our nation.  Examples, including flag burning, are as diverse as the human imagination and not worthy of civil elaboration: they are objectively incendiary.  They anger those who revere our country and who are humbled by the freedoms they cherish.  They outrage those like the authors who have a father/grandfather who was wounded in battle.  They inflame and callously trivialize those whose loved ones never came home, the honor and memory of who seem cheapened by this outrageous gesture.

Nevertheless, in 1989, the U.S. Supreme Court invalidated prohibitions against flag desecration based on the First Amendment, which provides:  “Congress shall make no law…abridging the freedom of speech.”  It held that the act of flag burning is a form of expression akin to speech, and its effectiveness in provoking the sentiment of the public was precisely the reason it could not be Constitutionally prohibited.  Justice Brennan observed that: “[w]e do not consecrate the flag by punishing its desecration, for in doing so we dilute the freedom that this cherished emblem represents.”

Should there be a Constitutional Amendment prohibiting flag burning?  Perhaps, but that is a political issue for another day.  Come what may, we merely observe that one cannot enact reverence, nor can one legislate wisdom:  stupidity is innate.  If one desecrates the symbol of that from which their right to do so is derived, it’s clear this is one who either has not given, or is incapable of giving that gesture much thought.  Still, it was Voltaire in his Essay on Tolerance that said:  "Think for yourselves and let others enjoy the privilege to do so too.”

We do not like this result…not at all.  However, when we encounter these village idiots, we pause only to thank God (for surely they have not) that we live in a country where they are not shot where they stand for their conduct.  We then shake our heads, smile, say “God Bless America” to ourselves, and move along.

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