Desecrating the Bill of Rights

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few years in recent memory, Congress gets together and passes a Constitutional
amendment to outlaw flag desecration. The Senate ritually rejects it. Who knows
how the state legislatures would vote if asked.

burned an American flag. I helped retire one in an official ceremony at Boy Scout
camp. When a flag is old and tired, this is the proper method of disposing of
it. It is not considered unpatriotic, I suppose because those who solemnly retire
the flag are not doing it because they hate America.

protestors, the very, very few among them who burn the American flag, hate America?
Is that why they do it? Who knows? I don’t believe in hate crime legislation,
and certainly not when the "victim" is a piece of cloth. That the protected
victim status would go to "America" — an abstraction with no readily
stipulated definition — only complicates the matter further.

speaking, as distasteful as burning the flag while hating America might be, it
is a victimless crime so long as the perpetrator is burning his own private property
and is not trespassing or imposing forcibly on anyone else’s person on property.
What the conservatives who become enthralled by the burning Flag Question every
couple years really wish to accomplish is a suppression of an act of expression
with which they staunchly disagree. They claim it’s not speech they want to restrict,
but their impassioned appeals to patriotism and condemnations of inappropriate
expression betray their true intentions: Free expression, of one type, is exactly
what they seek to repress.

Republican politicians, on the other hand, likely see the flag issue as an opportunity
to keep conservative voters and donors loyal to the Official Conservative Establishment
— that paragon of godliness, family values and love of country, the GOP. Somehow
I doubt that these legislators actually weep on those very rare occasions when
a flag is angrily burned: indeed, without that imagined ubiquitous enemy, unpatriotically
and maliciously setting the symbol of the American State on fire, they would have
one fewer call to duty, one fewer demon to protect their frightened constituents
against, one fewer diversion to distract mainstream America from the political
catastrophes of war and ever growing public debt.

at least a good number of Washington Republicans, the flag issue is so great specifically
because it will never be resolved. Some among them, though, do seem to be genuine
crusaders in the fight.

implications of such a policy proposal run deeper than the superficial motivations
of many of its vocal proponents. After all, the reason the federal government
simply doesn’t ban flag burning by statute is presumably because it would be unconstitutional
under the First Amendment (as well as the Ninth and Tenth, but no one pays attention
to those any more). By proposing to amend the Constitution, the national
social conservatives are making an admission that burning your own flag
as an act of protest is currently protected against federal intervention by the
Bill of Rights.

be told, the Bill of Rights is hardly followed in any serious sense. To the extent
it has worked as any sort of limit on government power, America owes its liberty,
peace and tranquility much more to that document than to the flag. But ever since
the Washington administration, federal politicians have attempted to circumvent,
and all too often have succeeded in circumventing, the Bill of Rights’ limits
on government power. From the first National Bank to the Federal Reserve, from
the Alien and Sedition Acts to Japanese Internment, from the first U.S. invasion
of Canada to the second war on Iraq, the busybodies in Washington have frequently
carried out colossal projects for which one searches in vain for Constitutional

some reason, certain kinds of free speech issues are seen as too sacred to suspend
with a mere federal statute. Campaign finance, commercial speech, and the airwaves
certainly suffer under more federal regimentation than the First Amendment in
full force would allow, but some strong and pervasive element in American culture
does lead most Americans to take pause at the idea of censoring clear-cut political
protest without at least something as grandiose and official-sounding as the backing
of a Constitutional amendment.

so the conservatives and establishment liberals who voted for the flag protection
amendment decided that protecting the flag was worth changing the Constitution
for only the eighteenth time since the ratification of the Bill of Rights. Technically,
then, they do not propose at all to violate the Bill of Rights, but rather to
formally and openly put it aside and throw part of its magic away.

Bill of Rights is words on paper. The flag is three colors of sewn cloth. They
are both inanimate symbols whose only powers and influence ultimately come from
the ways in which human beings interact with them and with each other in respect
to them. The flag inspires patriotism, but more nationalist State worship than
the real McCoy, especially these days. The Bill of Rights used to inspire patriotism
and maybe even an inclination on the part of Americans to guard and defend their

everyone in Congress actively and consistently votes against American liberty.
Those who desecrate the Bill of Rights and yet feign a tear at the trumped-up
intellection of Old Glory being burned in protest by dangerous anti-American radicals
have little understanding of freedom — or America, in the best sense of the word.

24, 2005

Gregory [send him mail] is a writer
and musician who lives in Berkeley, California. He is a research assistant at
the Independent Institute. See
his webpage for more articles and
personal information.

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