Is Deeply Flawed
House of Representatives has passed and the Senate is considering
a proposed constitutional amendment which would allow the Congress
"to prohibit the physical desecration of the flag of the United
States." This is a well intentioned, but gravely flawed proposal.
Its most obvious flaw is its use of the term "desecration"
to limit flag-protective legislation. Ironically, use of this term
will be used by lawyers to argue for loopholes for their clients
who have destroyed flags.
desecrate means to use a religious object in a manner that would
displease God. For example, the Bible states in Daniel
11:31: "His armed forces will rise up to desecrate
the temple fortress and will abolish the daily sacrifice."
Unlike a temple, a flag is not a religious object. It is no more
possible to desecrate a flag than it is to desecrate a football.
The concept of desecration does not apply to these secular objects.
Thus, no one could ever be convicted of physically desecrating a
flag, except perhaps the flag of Vatican City.
use of the term "physical" to modify "desecrate"
is equally problematical. Even if a flag could be desecrated, the
proposal only prohibits "physical" desecration. A long
list of non-physical acts of desecration would surely be fastened
on by flag-haters and their clever lawyers to defeat the purpose
of the amendment. For example, a stand-up comedian could make jokes
about the flag while the helpless flag waves mute on the stage of
some anti-American theatre. Worse yet, scantily clad dancers could
perform lewd acts in front of (or behind) the flag. Such unpatriotic
acts and more and worse could not be stopped under the proposed
loopholes would surely be found. Perhaps those who would destroy
American values would attack previous flags of the United States
and argue that the law applies only to the present version of the
flag. Perhaps they would burn large photographs of the flag.
The amendment clearly applies only to "flags" and not
to images of flags.
amendment has more fundamental flaws. It seeks to protect the flag
as the symbol of the United States and everything it represents.
At the same time, it fails to protect other equally important symbols
of America and other repositories of its great ideas. The President
is also a recognizable symbol of America. Yet, the President is
not protected from being mocked, ridiculed or scorned. The Presidential
seal is regularly misused on late night TV and presidents are regularly
impersonated and made out to be buffoons by comedians hiding behind
the same First Amendment that has shielded hordes of flag-burners.
and the Supreme Court also fundamental symbols of America
receive no protection from criticism, derision, and satire
under the proposed Amendment. What about the Declaration of Independence,
the Constitution, and the Gettysburg Address, which many accept
as a poetic revision of the Constitution? Do not these documents
express the very ideas symbolized by the flag? Yet, they can be
spat upon, stomped on, torn up and thrown in the trash on any street
corner in America. The proposed amendment fails to address any of
these potential atrocities.
drafters of the proposed amendment need to re-think the purposes
of the amendment, re-consider the fragility of our symbols and ideas,
re-calculate the number of our enemies, and re-draft the amendment
in a way that will permanently guarantee that no person will ever
challenge those ideas or symbols. It might read something like this:
Congress shall have the power to prohibit any and all acts, words,
or omissions, which could be reasonably intended to criticize,
denigrate, disparage, mock, scorn, satirize, ridicule, or attack:
the flag of the United States, or any image of it, the President,
Presidential seal, or any image of these, the Congress, Supreme
Court, or any image of these, the Constitution, Declaration of
Independence, Gettysburg Address, in any form or image whatever,
or the Armed Forces of the United States or any image or symbol
of them whatever. To the extent they conflict with this Amendment,
the First, Fourth, Fifth, and Ninth Amendments are hereby repealed,
and henceforth may be physically desecrated."
2 , 2000
Ostrowski is an attorney practicing at 984 Ellicott Square, Buffalo,
New York 14203; (716) 854-1440; FAX 853-1303. See his website at