On an ordinary day, it’s pretty easy to belittle the U.S. Senate. So it’s no surprise that the “World’s Most Deliberative Body” has taken some editorial hits lately for again debating a proposed constitutional amendment to give Congress the power to write laws punishing the desecration of the American flag.
Organizations like the American Civil Liberties Union and People for the American Way are again in full outcry against the proposed amendment, claiming consideration of the measure is nothing more than an election-year stunt designed to give Republicans a chance to question the patriotism of their opponents.
More seriously, editorialists – egged on by such groups as the American Association of Newspaper Editors – have taken a more subdued approach. Typically, they have argued that the issue of flag burning isn’t all that important or that the First Amendment can’t be limited in any way without doing great damage to the nation.
Still, the amendment continues to gain support, and late Tuesday the amendment failed on a 66-34 vote in favor – just one less than the two-thirds required.
The House has already given the amendment a two-thirds approval, and if the Senate almost followed suit, obviously there must be a case for passing it and sending it on to the states for the required three-fourths ratification.
Indeed, there is such a case, but to really understand it, one must go back to the event that spawned the Flag Amendment. That event was the 1989 decision by the U.S. Supreme Court that effectively repealed a federal law and statutes in 48 states regulating the desecration of the American flag.
It may be hard to remember now, but that 5-4 decision was a shocker. The anger over it lingers to this day and is echoed in much of the Senate debate. From the beginning, the dispute over the decision has never been a strictly partisan matter. Two of the current conservative members of the court, Justice Antonin Scalia and Anthony Kennedy, voted with three liberal members to make up the majority. Perhaps the most liberal member of the current court, Justice John Paul Stevens, dissented, as did then-Chief Justice William Rehnquist, the late Justice Byron White and recently retired Justice Sandra Day O’Connor.
Rehnquist, writing for three of the four dissenters, said, “The Court decides that the American flag is just another symbol, about which not only must opinions pro and con be tolerated, but for which the most minimal public respect may not be enjoined. The government may conscript men into Armed Forces where they must fight and perhaps die for the flag, but the government may not prohibit the public burning of the banner under which they fight.”
That finding by the court offended Rehnquist then and it offends millions today. So there is a simple answer to the question of why the flag amendment is still alive after more than 17 years of debate and dispute over the 1989 ruling: Millions of people and their representatives think the court got it wrong and they want to re-establish practices that existed without major controversy during the country’s long history prior to the 1989 decision.
But that is perhaps not all that is involved. There are many who also believe that it is not only the people’s right, it is also an obligation to correct the court when it makes a mistake and to warn it against other excesses.
Despite the merits of those impulses, the last 17 years have shown what was already suspected. It isn’t easy to amend the U.S. Constitution, and it isn’t easy to correct the U.S. Supreme Court.
Rehnquist made this important point in his dissent. The man who brought the lawsuit, he said, engaged in a number of protests, shouting among other things, “Red, white and blue, we spit on you, you stand for plunder, you will go under.” He was not punished for those expressions and others that are clearly protected by the First Amendment. He was punished only for publicly burning the flag.
Would it really be a step backwards, would it really ruin the First Amendment (let alone the Bill of Rights) to return to enforcement practices that were once taken for granted?
If that isn’t reason enough to pass it, how about this: Think what it would do to the ACLU.
Al Knight of Fairplay (alknight@mindspring.com) is a former member of The Post’s editorial-page staff. His column appears on Wednesdays.
