Flag-Burning Amendment Is Deeply Flawed

The 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.

To 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.

The 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 amendment.

Other 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.

The 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.

Congress 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.

The 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:

"The 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."

James Ostrowski is an attorney practicing at 984 Ellicott Square, Buffalo, New York 14203; (716) 854-1440; FAX 853-1303. See his website at http://jimostrowski.com/.