To listen to the proponents of the amendment, however, one would think that there was an epidemic of flag‐burning afoot, or at least a clamor in the land for such an amendment. Yet neither is remotely the case. The issue is a leftover from the dimmest days of the Bush administration, when a desperate grasp for symbols masked an abject want of ideas.
That recent history, in fact, makes the current effort all the more anomalous, because it is precisely the rebirth of ideas — ideas about liberty and limited government — that marks the Republican Congress today. The landslide last November was about little else, and the period since has only deepened that impression.
The principles at stake could not be more simple or clear. Indeed, they are the principles at the core of the American vision. The right of the individual to be free is the right to do what one wishes short of violating the rights of others. That includes the right to do or say what is popular, for sure. But it includes as well the right to do or say the unpopular. For it is then, when our actions give offense, that our freedom is put to the test. It is then, precisely, that we learn whether we are free or not.
Sir Winston Churchill captured the point nicely when he observed in 1945 that “the United States is a land of free speech. Nowhere is speech freer — not even [in England], where we sedulously cultivate it even in its most repulsive forms.” In so observing, Churchill was merely echoing thoughts attributed to Voltaire, that he may disapprove of what you say but would defend to the death your right to say it, and the ironic question of Benjamin Franklin: “Abuses of the freedom of speech ought to be repressed; but to whom are we to commit the power of doing it?”
There is all the difference in the world between defending the right to speak and defending the speech that flows from the exercise of that right. With perfect consistency, in fact, one can condemn the burning of the flag, as most Americans do, while defending the right to burn it. The distinction that enables us to do that — a distinction between rights and values — is at the heart of the inheritance the classical liberals left us. It is that distinction — and our ability to sustain it, through fundamental constitutional law — that marks us as a free people.
Yet the Republicans’ amendment would drive a stake through that legacy — amending, for the first time in 200 years, the First Amendment to our Constitution. No one doubts that flag‐burning is offensive. If our flag is the symbol of the very principles that constitute us as a people, what could be more offensive than the desecration of that symbol?
What could be more offensive? To ask the question is to answer it, of course. For far more offensive than the desecration of the symbol is the desecration of the principles themselves. In the end, symbols are just that — symbols. They stand for the real thing. When we desecrate the real thing — the principles that our Founders fought so hard to secure and that many since have sacrificed so much to preserve — we lose something far more precious, far more difficult to restore. This Congress, dedicated as it purports to be to liberty and limited government, should not be about such a business.
