Commentary

Burn Your Own Flag, If You Want

By Casey J. Lartigue Jr.
August 1, 2001
The House voted 298-125 on July 17 for a one-sentence amendment to the U.S. Constitution: “The Congress shall have power to prohibit the physical desecration of the flag of the United States.”

Why did Congress stop there? The amendment needs to be expanded to read: “The Congress shall have power to prohibit the physical desecration of the flag of the United States that anyone in Congress happens to own. Anyone who burns a flag stolen from the home or office of a member of Congress shall be punished to the maximum extent of the law.”

In other words, hold flag burners to the same standard we hold people to when they burn property that is not their own: you burn it, you buy it.

Congress needs to fight fire with fire by responding to the symbolic act of burning Old Glory with symbolic action of its own—each new Congress should pass a non-binding resolution, call it Resolution 1776 this time, condemning flag burning. They’ll have a chance to condemn flag burning without incinerating the First Amendment.

The resolution is needed because it has become a tradition for the House to prove its devotion to freedom by restricting freedom. The goal has been to overturn the Supreme Court’s 1989 and 1990 decisions slapping down state and federal attempts to criminalize flag burning. If the flag burning amendment becomes law, it would mark the first time that the First Amendment has ever been amended. That would surely set off a bonfire by interest groups demanding that disliked words, texts, and ideas be criminalized.

In their desperation, some enflamed representatives have even referred to flag burning as a hate crime. Rep. Randy “Duke” Cunningham (R-Calif.) and many others who denounce flag burning as a hate crime have themselves been MIA on the issue of hate crimes.

During House debate on flag burning, Rep. Henry Hyde, R-Ill. argued: “Vandalizing a no-parking sign is a misdemeanor, but burning a flag is a hate crime, because burning the flag is an expression of contempt for the moral unity of the American people.”

Hyde has, however, created a false analogy — -a flag can be privately owned whereas no-parking signs are public property. If someone happens to own a no-parking sign, then he should certainly be allowed to burn it, as long as he doesn’t endanger others or their property.

Fiery columnist Patrick Buchanan said in 1989 that the Supreme Court had “converted an anti-American `hate crime’ into a constitutional right.” In contrast, Buchanan calls hate crime legislation a “fraud.” After the murder of a gay man in 1998, Buchanan argued: “Since Wyoming is prepared to execute the killers, what more does the left want? Answer: The left wants the thought punished as well as the deed.”

While Buchanan is right that hate crime laws are unnecessary, he borrows from the logic of opponents by arguing that some thoughts need to be punished. He doesn’t oppose flags being destroyed in a dignified manner, just when some pinkos barbecue the Red, White and Blue. Perhaps Buchanan will next borrow from his ideological opponents by asking for reparations for those traumatized by flag burners.

There wouldn’t be many people in need of such reparations, however. According to the Library of Congress, there were only 45 instances of flag burning from 1777 to 1989, and fewer than 10 a year since the Supreme Court’ s rulings. The reality is that not many Americans burn the American flag, although conservatives are willing to trample on the Constitution to save the flag.

What should be embarrassing for conservatives is that they have Rep. Jesse Jackson (D-Ill.) mocking them for trying to amend the Constitution. Jackson isn’t opposed to aggressively amending the Constitution. In his book to be released in mid-August, Jackson proposes eight constitutional amendments. But according to Jackson, conservatives have even topped him, having already introduced about 50 constitutional amendments in the 107th Congress. The supposedly do-nothing conservatives in the 106th Congress introduced 75 constitutional amendments. The founding fathers themselves only came up with a dozen amendments, 10 of which they ratified.

Our elected representatives need to think beyond the next election. Harvard Law professor Charles Fried, in testimony before a Senate committee in 1990, said that putting the flag burning amendment in the Constitution would be like drawing “a moustache on the Mona Lisa of our liberties.” Fried, then solicitor general in the Reagan administration, said “It would be ‘a piece of vandalism whose mark will be with us forever.’”

Casey Lartigue is staff writer at the Cato Institute.