It has been threatened ever since the Republican party took control of all three branches of government, but the full-frontal assault on the Bill of Rights has finally begun in earnest. I’m not talking about the legislative embarrassment called the U.S. Patriot Act, pushed by the Bush (be-afraid-be-very-afraid) administration and passed by legislators who would have read it, really, had they the time. I’m talking about a full-on constitutional amendment to abolish free-speech rights granted by the First Amendment, as passed by the House of Representatives on Wednesday. It looks as though, before long, the “physical desecration” of the Amrican flag will be a criminal offense.
There is no question that, absent a new constitutional amendment, flag burning is protected political speech under the First Amendment. Indeed, it is the very sort of political dissent that was so important to the founders of this country – the most basic of our political liberties and a cornerstone of our democratic institutions. As Justice William Brennan wrote in Texas v. Johnson, 491 U.S. 397 (1989), which held that desecration of the flag was constitutionally protected speech, “If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.”
The only fools who insist the flag burning is not political speech are disingenuous jingoists like California Republican Randy “Duke” Cunningham, one of the sponsors of the amendment in the House. Says Cunningham, “There are 10,000 ways you can express yourself. You don’t need to desecrate the flag.” But even these chuckle-heads can’t possibly believe their own rhetoric; they simply don’t want you to criticize the government. Like any good post-Reagan-era conservative, Cunningham and his ilk understand that pushing an ideological agenda via increased governmental regulation is what the god-fearing voters want. Stop us before we sin again! Throw in a tax break for the wealthy and some well-targeted corporate welfare and you’ve got yourself a comprehensive domestic agenda.
While the Senate will still have to pass the measure in order to send the question to the states for ratification, there is plenty of reason to be concerned. Sure, the House has always been the lunatic fringe of our representative government; but senators may find it hard to do the right thing here. It is very difficult for our politicians to stand against jingoism at a time when the political culture of I’m-a-better-patriot-than-you is all the rage in Washington. Consider the idiotic weasel act of New York Senator, and presumptive 2008 presidential candidate, Hillary Rodham Clinton, when pressed on this subject: “As I have said in the past, I support federal legislation that would outlaw flag desecration, much like laws that currently prohibit the burning of crosses, but I don’t believe a constitutional amendment is the answer.” I guess they didn’t teach constitutional law when Senator Clinton was at Yale Law School; but most fourth graders know that the whole point of constitutionally guaranteed liberties, like the right of free political expression, is that they trump any state authoritarian action to the contrary, including legislation.
Count on it: flag burning is toast.
My objections to this abridgment of a fundamental constitutional right are not simply political; I find the Old Glory amendment aesthetically unfathomable. Desecration, it seems, is in the eye of the beholder.
Just imagine all the kitschy shit that’s adorned with the stars and bars. How tacky does flag-draped crap have to be before the Feds decide jail-time should be served? Would Peter Fonda’s chopper in Easy Rider have landed him in the clink? How about star spangled cocktail napkins? I doubt that the FBI G(string)-men will be breaking into the lingerie drawers of women who like to wear the flag over their… ummm… hearts. But somehow I think the current Justice Department might have a hard-on (so to speak) for the “Spank Me Red, White, and Blue” open-rear bikini briefs for men.
Imagine the rich body of Supreme Court jurisprudence that will develop to give the nation guidance as to what constitutes a patriotic undergarment expression and what sullies the good reputation of the flag.
I think we should give the numb-nuts congressmen a do-over on this one. To quote Justice Brennan again, “We do not consecrate the flag by punishing its desecration, for in doing so we dilute the freedom that this cherished emblem represents.”