The “flag burning” controversy has been a hotly debated issue of election-year political opportunism since the Supreme Court’s 1989 decision, in Texas vs. Johnson, that burning the American flag is constitutionally protected free speech.

On June 27, 2006, a proposed constitutional amendment banning the desecration of the flag was narrowly defeated in the Senate, 66-34, one vote shy of the two-thirds, or 67 votes, required to send it to the states for ratification.

The last time the full Senate voted on it, in 2000, the measure came up four votes short. The amendment cleared the House, 286-130, last year.

The Flag Protection Amendment, S.J. Res. 12, which was sponsored by Senator Orrin Hatch (R-Utah), read: “The Congress shall have power to prohibit the physical desecration of the flag of the United States.”

The Flag Protection Amendment, had it passed, would not have directly prohibited the desecration of the flag. It would have required that Congress enact legislation defining the terms “flag” and “desecration” while also empowering that body with the option of imposing penalties upon the violators of any subsequent policies made against flag desecration.

The Confounding Circumlocution of a Constitutional Non-Conundrum

Flag burning is a phony paradox issue that stirs and exploits the passions of patriots while inspiring jingoistic hypocrisy that is often rationalized in emotional appeals to American sentiment and vanity.

Senator Dianne Feinstein (D-California), who calls the flag “a vibrant symbol of our democracy, our shared values, our commitment to justice, and our eternal memory of those who have sacrificed to defend these principles,” in a June 16, 2006 USA Today editorial, writes:

Some opponents of the Flag Protection Amendment argue that we must choose between trampling on the flag and trampling on the First Amendment. I strongly disagree.

There is no idea or thought expressed by the burning of the American flag that cannot be expressed equally well in another manner. This Amendment would leave both the flag and free speech safe.

Senator Feinstein’s point that ideas can be expressed just as well in other ways that don’t involve burning the flag seems reasonable when taken at its face value. (After all, flag burning is not a terribly effective way to win friends and influence people because it tends to close minds and harden hearts against whatever idea or cause is being demonstrated in that manner.)

However, a slight scratching of its surface reveals that carefully constructed rhetoric as a thin facade acting as a pretense for the limitation of the expression of political ideas that are often just as unpopular as the act of burning the flag.

In democracy, all ideas are equally worthy of expression, regardless of their popularity, which is one of the essential values we share as we work toward fulfilling our commitment to justice.

Principles mean nothing when they are rationalized away the moment they sting our sensibilities (and perhaps our pride, too) and become politically, or otherwise, uncomfortable or inconvenient to keep.

Those who made sacrifices for our freedom did so to defend our actual principles, not the decorative symbols we use to represent them. A flag is nothing but a piece of cloth. No matter how many are burned, for whatever reasons, our principles, and our commitment to them, will remain.

The choice between trampling on the flag or the First Amendment should not be much of a dilemma in light of the fact that the First Amendment protects the right to trample upon the flag and that nothing less than a constitutional amendment is required to restrict that right.

We cannot have it both ways. By making the flag “safe,” this “Flag Protection Amendment” — as well as the precedents it would set — would, by default, endanger our First Amendment right to the free expression of ideas.

The people of a free country have the right to do and say all sorts of awful things that might be considered offensive in polite society, as long as they do not violate anybody else’s rights in doing so.

Like it or not, this is the way that it is and has to be because a “right” to limit unpopular speech, or the free expression thereof, that is an affront to the sensibilities of civilized society, but is not also a violation of the rights of the people, does not and cannot exist.