Desecrating the Bill of Rights

Every 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.

I’ve 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.

Do 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.

Fundamentally 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.

The 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.

For 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.

The 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.

Truth 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 authority.

For 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.

And 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.

The 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 liberty.

Almost 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.

June 24, 2005