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The emotional push to ban flag-burning

By Scott Tibbs, January 5, 2004

Retired General and Democratic Presidential candidate Wesley Clerk surprised supporters during a recent rally at Harvard when he brought up his support for a Constitutional amendment to ban burning the American flag. The Crimson reports that Clark explained his position "was necessary if the Democratic Party hopes to reverse its losses in Southern states." Clark said "Itís not about the Confederate flag down there. Itís about the American flag. And our party has to be smart enough to understand that".

It is likely that Clark, with his military background, genuinely supports banning flag desecration, but his statement sounds like he is taking a position based on its political benefits rather than the merits of the policy. If that is the case, it is another unfortunate example of politics trumping principle.

Of course, a Constitutional amendment banning flag burning would not ban flag burning at all, because the proper way to dispose of an old flag is to burn it, according to the U.S. Flag Code. "The flag, when it is in such condition that it is no longer a fitting emblem for display, should be destroyed in a dignified way, preferably by burning." What a flag-burning amendment would ban is the burning of the flag as a means of political protest, and that is the biggest wrinkle in this issue.

The first ten amendments to the Constitution (the Bill of Rights) were passed to limit the power of the federal government and guarantee that the freedoms of the people would not be infringed. Later amendments would also follow the principle of expanding, rather than restricting, personal freedom. The most notable exceptions are the 16th and 18th amendments, allowing the establishment of an Income Tax and establishing Prohibition. Prohibition, of course, was a massive failure, and was repealed by the 21st Amendment.

Conservatives often take stands protecting freedom of speech, in the face of "political correctness" and "campaign finance reform". Unfortunately, many conservatives (who traditionally oppose expanding government and limiting personal freedom) have lost their way on flag burning. Do we really want to prohibit a form of political speech with a Constitutional amendment?

Some would argue that flag burning is not speech, but "conduct". However, that "conduct" has an inherent political message of strong disapproval of government policies. The purpose of banning flag burning is not to prohibit a type of conduct but a message that many people find offensive. This is underscored by the fact that a flag burning amendment would specifically ban the burning or desecration of the American flag, not flags of other nations or flags representing organizations.

Does the American flag merit special protection because it represents this country? In considering this question, we must ask ourselves if the flag represents a country or a set of values. The United States was founded by a group of men who pledged their lives, their fortunes and their sacred honor because they believed the British Empire was restricting freedoms that it had no right to restrict. The Founders believed those rights are natural rights inherently held by all human beings. Indeed, the Declaration of Independence states "We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness."

Indeed, the American flag does not represent a country, but a set of values upon which the United States was founded. The flag itself is unimportant, a simple piece of cloth. Burning the flag does no damage to society, to the United States or to other people, save for hurt feelings. What is important are the values of freedom that the flag represents.

What about private property rights? If someone purchases a flag, does he have the right to do with his property what he wishes, so long as he does not harm or endanger anyone else? As conservatives, we often lament government restrictions of private property rights. When you consider that we are restricting someoneís right to do what he wishes with his private property as a political protest, conservatives should take pause at passing a Constitutional amendment.

Why is a Constitutional amendment needed in the first place? Is flag burning such a pressing national issue that we need to modify the supreme legal authority in the land to eliminate it? No it is not. The Constitution is too important to muddle in issues of whether a piece of cloth with a specific design on it should not be desecrated. Passing a Constitutional amendment banning flag desecration cheapens the Constitution with its pettiness.

This is not to say I support flag burning or desecration. Testimony before a U.S. House judiciary subcommittee mentioned the following despicable incident: "Matthew Janssen, a self-proclaimed anarchist, stole a United States flag from a municipal golf course and proceeded to defecate on it. He later left a note proclaiming: The anarchist platoon has invaded Appleton and as long as you put (American) flags up, we're going to burn them." This is clearly not acceptable, and certainly Janssen deserved punishment for his actions of theft, public indecency, and vandalism. Furthermore, it is rather sick to defecate on anything as a means of political protest.

This isn't the only incident where someone has destroyed a flag owned by someone else. I have been told of one incident on the Indiana University campus, shortly after September 11, where someone desecrated an American flag owned by another student. In times of such national distress it is despicable to destroy someone else's flag.

In the post 9/11 America, patriotic sentiment is running high, and there is much more attention being paid to "unpatriotic" actions. This is understandable. Given this sentiment, I am surprised there has not been a much stronger push for a Constitutional amendment prohibiting desecration of the American flag. But in times of war such as this, we must be careful that justifiable pride in our country does not bleed over into criminalizing dissent. Patriotism and pride in one's country are honorable things, but we must remember that it is American values that we hold dear, and American values that we are defending in this War on Terror.