Don’t Tread On Our Constitution

Let’s put the proposition this way: You have a right to disagree with the government, but Congress can decide which terms you can use and which you can’t when you do it.

Fair enough? The House Judiciary subcommittee on the Constitution thinks so.

That’s the effect of its support for a constitutional amendment against burning the American flag. The proposal would overturn a 1989 Supreme Court decision that granted First Amendment protection to flag-burning carried out as an act of political protest.

Flag-burning is odious, which is exactly its appeal for the few who resort to it. It’s a statement of extreme dissent. A more politically pointed utterance would be hard to imagine - or, therefore, one more deserving of free-speech protection.

The Bill of Rights doesn’t exist to protect speech nobody much minds. What would be the point? It exists to protect speech most folks would suppress if the First Amendment would let them get away with it.

The House failed in 1990 to produce the two-thirds majority required to propose an amendment against flag-burning. The current Congress, conservative to the point of being radically reactionary at times, may put the matter to the states after all.

There two fundamental reasons to quash the proposed amendment.

First, it would trivialize the Constitution. Our founding document has worked so well in large part because its authors emphasized guiding principles rather than cluttering it with a lot of fussy do’s and don’ts.

We’ve amended it only 17 times since the Bill of Rights was adopted, usually either to tidy up important points of governance or to enlarge liberty - extending the vote, for instance, to freed male slaves, to women and to 18-year-olds.

The one time we gummed up the works to satisfy a passing fad - the prohibition against alcoholic drinks - we lived to regret the rashness and had to take it back with another amendment.

States that can’t resist the temptation to such political showboating have to purge their constitutions periodically of the accumulated follies.

Please, let’s not start similarly despoiling our transcendent statement of working nationhood.

And, second, the precedent of chipping away at the First Amendment could incite other inroads against unpopular speech.

Flag-burning is symbolic speech, but repeated Supreme Courts have recognized symbolic speech as having constitutional standing along with spoken and written speech.

If the flag may not be burned to make a point, then why let right-wing hysterics put the flag postage stamp on envelopes upside down in political mimicry of the international distress signal?

Why not an amendment declaring that, sure, you can otherwise knock the president if you want, but you may not dishonor the presidency by calling its occupant a socialist when he isn’t one, as radio talk show hosts now do routinely?

Oh, and there’s this, too: You haven’t heard about flag-burning lately because there is hardly any going on. If you want to start it up, just adopt a constitutional amendment against it and rev up its political oomph.

xxxx