An Amendment to Ban Flag Desecration

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Introduction

Mr. Chairman, distinguished members of the subcommittee:

My name is Roger Pilon. I am director of the Cato Institute'sCenter for Constitutional Studies.

I want to begin by thanking Congressman Watts for his kindinvitation to testify before the Subcommittee today on "H.J. Res.33: Proposing an Amendment to the Constitution of the United StatesAuthorizing the Congress to Prohibit the Physical Desecration ofthe Flag of the United States." Unfortunately, the invitation cameafter I was committed to speak out of town and so I will have tosubmit this written testimony for the record.

In the past I have had the pleasure of working with ChairmanHyde of the full Committee and Chairman Canady of the Subcommitteeon several issues, and I look forward to working with them again inthe future on others. On the issue before the Subcommittee today,however, I am afraid I must demur, taking a position opposite thatof the chairmen and many on this Subcommittee. In fact, becausethis issue separates me from so many with whom I normally joinhands, I sense a special burden to show why I believe this proposedamendment is unwise--indeed, is fundamentally mistaken.

Let me begin to discharge that burden by making clear from theoutset what should be beyond any doubt, namely, that I do not writeto defend those who would desecrate the flag of the United States.I dare say, in fact, that my contempt for such action is equal tothat of any member of this Subcommittee. For the flag is not simplythe symbol of America; more deeply, it is the symbol of theprinciples on which this nation rests. Those who would desecratethe flag are thus guilty, at bottom, of desecrating our principles,which is why we find their acts so offensive. Ironically, however,it is those very principles that protect such acts--and restrainthe rest of us in the process.

In a word, therefore, I am here not to defend flag desecrationbut to defend the right to desecrate the flag, offensive as theexercise of that right may be to so many Americans. That positionmay strike some as contradictory. It is not. In fact, there is allthe difference in the world between defending the right todesecrate the flag and defending flag desecration itself. It is thedifference between a free and an unfree society. This amendment, asit tries to shield us from offensive behavior, gives rise to evengreater offense. By offending our very principles, it underminesits essential purpose, making us all less free.

Let me plumb those issues a bit more deeply by noting, first,that flag desecration of a kind that this amendment would authorizeCongress to prohibit is political expression and, second, thatpolitical expression is precisely what the Framers wanted most toprotect when they drafted the First Amendment. In a pair of casesdecided in 1989 and 1990--involving first a state, then a federalstatute--the United States Supreme Court said as much, which is whythose who want to prohibit people from engaging in such acts haveresorted to a constitutional amendment--an amendment that would,for the first time in over 200 years, amend the First Amendment.That alone should give pause.

But it is not the First Amendment alone that protects the rightsof political expression. Even before the Bill of Rights wasratified, two years after the Constitution itself was ratified,citizens were protected against overweening federal power by asimple yet profound expedient--the doctrine of enumerated powers.In a word, there was simply no power enumerated in the Constitutionthrough which the federal government might abridge politicalexpression. Arguing against the addition of a Bill of Rights inFederalist 84, Alexander Hamilton put the point well: "Why declarethat things shall not be done [by the federal government] whichthere is no power to do?" This amendment would expand federal powerin a way the Framers plainly contemplated--and rejected.

It is crucial, however, to understand precisely why the Framerswanted to protect political expression. To be sure, they thoughtsuch expression was essential to the workings of a free society:democracy works, after all, only when people are free toparticipate in the processes through which they govern themselves.But it was not a concern for good consequences alone that drove theFramers: more deeply, they were concerned about the simple matterof protecting rights, whatever the consequences of doing so. Theprotection of our rights is tested, however, not when what we do orsay is popular but when it is unpopular. Stated most starkly, afree society is tested by the way it protects the rights of itsleast popular members.

Sir Winston Churchill captured well that essential feature ofour system when he observed in 1945 that "the United States is aland of free speech. Nowhere is speech freer--not even [inEngland], where we sedulously cultivate it even in its mostrepulsive forms." In so observing, Churchill was merely echoingthoughts attributed to Voltaire, that he may disapprove of what yousay but would defend to the death your right to say it, and theironic question of Benjamin Franklin: "Abuses of the freedom ofspeech ought to be repressed; but to whom are we to commit thepower of doing it?"

When so many for so long have understood the principles at issuetoday, how can this Congress so lightly abandon those principles?It is said by some that the flag is a special case, a uniquesymbol. That claim may be true, but it does not go to the principleof the matter: in a free society, individuals have a right toexpress themselves, even in offensive ways. Once we bar suchexpression, however, Franklin's question will immediately be uponus. What is more, we will soon find that the flag is not unique,that the Bible and much else will next be in line for specialprotection.

It is said also that the flag is special because men have foughtand died for it. Let me suggest in response that men have foughtand died not for the flag but for the principles it represents.People give their lives for principles, not for symbols. When wedishonor those principles, to protect their symbol, we dishonor themen who died to preserve them. That is not a business this Congressshould be about. We owe it to those men, men who have made theultimate sacrifice, to resist the pressures of the moment so thatwe may preserve the principles of the ages.

Roger Pilon

Subcommittee on the Constitution
Committee on the Judiciary
United States House of Representatives