(This article also appears on National Review Online.)
Appalling to many was that in the 1989 decision, the high Court's most liberal and most conservative (including Antonin Scalia) wings joined together to overturn a congressional statute.
Thus, Congress is seemingly left with one option: Amend the Constitution to create a “flag protection exception” in order to prohibit the practice. Orrin Hatch (R., Utah) is again the lead Senate sponsor of an amendment which says, simply, “Congress shall have the power to prohibit the physical desecration of the flag of the United States.” Interestingly, the issue doesn't split strictly down party lines: Hatch is joined by Senate Democrats Diane Feinstein (Calif.) and Max Cleland (Ga.) as supporters, while Senate Republicans such as Mitch McConnell (Ky.) and Hatch's Utah colleague Robert S. Bennett oppose an amendment.
Given the passions that the action of burning the flag unleashes, it is quite understandable that many elected officials would want to support an amendment and send it to the states for ratification. But, seriously, exactly how wise is such an action?
My own feelings toward the flag are deeply personal, yet firmly grounded in what America in all her complex history means to many. I recall a crisp November day in 1989. Born in Trinidad and raised in England, after seventeen years in America, I had finally taken my official oath of citizenship. I stood in a room filled with people from countless other countries, all about to make official our quest of the American dream. The ceremony concluded; all of us new citizen smiled, collected our flags from the Baltimore Ladies Auxiliary and returned to the outside as full-fledged citizens of the United States of America. I looked up over the building that housed the Immigration and Naturalization Service and saw the flag billowing fully. Luckily, it was a windy day and the effect was the appropriate one.
It finally sunk in: I was an American at long last.
For the first time, some of the emotions, memories and respect that many Americans (especially those that served in the military) feel when they see the Stars and Stripes unfurled and waving proudly, a symbol for a land of freedom and vast opportunity surged through me. Too, I began to understand the anger Americans feel when the flag burned, not by residents of another country — who perhaps have little conception of what America stands for — but by those who should know better, those that have grown up with benefits of the American system. Why do these people destroy that which has come to symbolize so much to so many?
Of course, the issues of flag burning and speech are inextricably linked and it is easy to see how. The flag blowing powerfully in the wind on the day I became an American spoke volumes to me. Similarly, the flag spoke to Francis Scott Key in the middle of a war and inspired him to write what became our national anthem. To soldiers, it speaks of loved ones at home. To veterans, it speaks of wars won, battles lost, and comrades fallen in the struggle for freedom. On the face of it, it would almost seem that the flag's “words” should outweigh all others.
Part of me wants to say: There should be little question: That which speaks to so many people, should be worthy of the utmost protection. But then I check myself and again ask, “What does 'respect' for our flag mean? Furthermore, what does it mean to purposefully trample, defile or damage our flag?” We know what those words mean in their literal sense; but that which is amended to the Constitution, must often survive not merely a literal test, but also an interpretive one. It is the first ten amendments, the Bill of Rights, which are subject to vigorous debate constantly. Free speech, the right to bear arms, search and seizure, these issues speak to us now as loudly as they did for the Founding Fathers when they were first drafted. If then, we are willing to consider taking a step that may, in effect, amend part of the Bill of Rights, we must be darn sure that the words we choose are both specific enough for the problems of the times and also broad enough to withstand the weight of history yet unpublished.
Consider, the flag symbolizes not just the birth of the United States of America, but her history, her very life. Thus, it comes to symbolize all those that have helped contribute to her story: Washington, Franklin, Jefferson, Monroe, Lincoln, the Presidents Roosevelt, King. And those are just the personages of the public life. The story also includes the explorers, the scientists, the artists and more.
Truly, the American Experiment has given birth to stars of all stripes. Their tale is told within the Red, White, & Blue. Thus, when we consider the flag, we also subconsciously celebrate the achievements of those who gave so much to make our country great. In a sense, to spit on the flag, is to heap insult on the accomplishments of Jefferson. The courage of Washington becomes so much ash at the foot of one who has little understanding of virtues such as sacrifice and bravery.
And yet…and yet…when we consider the courage of those who gave their lives to defend this flag and its principles, we must also remember the free blacks that fought in the Civil War and again, Dr. King who asked America to remain true to her stated principles. Are not these also examples of the flag's glorious history? Given that, can we not ask the question: Is displaying the flag in a manner deliberately insulting to these moments of history not also a dishonoring of the flag? Are we ready to ban the use of the flag when the Ku Klux Klan marches? Which embodies more the principles of America: the Klan or the flag?
Furthermore, for the decades when South Carolina displayed its own state flag, a Confederate flag and the Stars and Stripes all together above its Capitol building, many wondered about the mixed messages being sent. Wasn't there something of a contradiction flying the flag side-by-side with the battle flag of a power that had once been raised in hostility to that symbol? Did such an action truly respect the Stars & Stripes?
Forgetting neither the law of unintended consequences nor that the road to hell is paved with good intentions, we can foresee a situation develop where banning the flag burning could create more divisiveness, not less. If an amendment to the Constitution banning flag burning passes and Congress then passes a federal law, similarly worded legislation would be permissible at the state level. Once a free-speech exception is made for one national symbol, similar protections could be made at the state level. Thus, in Georgia, where even the redesigned state flag incorporates a small part of the Confederate symbol, conceivably a state law could be passed banning the burning of that flag by African Americans (or others) offended by its symbolism. As soon as one piece of cloth finds legislative protection, it is only a matter of time before others will as well.
On what moral authority then, can the Congress tell a small minority that it reserves the right to forbid the desecration of the flag of the United States? How can we exhort them to give respect for the flag when we ignore what the flag means to us everyday? For us to protect appropriately the flag and the values it represents, we should be prepared to champion an all or nothing proposition: Either the flag is to be held in such virtual religious stature that we are ready to prevent any “secular” use of it that may besmirch its image, being ready to list in full detail all appropriate or inappropriate usage for it; or, we leave it be, allowing the individual to learn and respect, not merely the flag, but also the underlying history and principles it represents.
Only then will we be able to feel the inner peace and security that comes from realization that our country is strong enough to withstand the torching of its symbol. Only then will all feel anger when hate groups blaspheme the principles of the flag by wrapping themselves in phony patriotism. Only then will all segments of the country speak in one voice to our national symbol as our national symbol has spoken to us, though we have oft been deaf to her words. In the end, the flag of the United States really becomes the flag of the people of the United States. It symbolizes the unique histories and dreams of all those who have ever taken that first step on American soil and realized all the potential dreams to be sown in her land. Each must learn for him- or herself what the flag means.
Admittedly we live in an era where symbol seems more important than substance. Let us not forget what the flag truly symbolizes. It is a truth far more powerful than the misguided views of petty semi-anarchists of the left or the right.
They can burn the flag; they can misuse the flag. But just as a burning cross is no danger to the words and deeds of Christ, the true cloth of the American flag is the American spirit of freedom. In comparison to that flaming spirit, a burning flag is a mere match inside the heart of the sun — of no consequence and quickly dismissed.
The flag will do just fine without any “protection.”
