The U.S. House of Representatives, as it is periodically wont to do, last week approved by a comfortable 286-130 margin a proposed constitutional amendment that would allow Congress to outlaw flag burning as a form of political protest.
Let's hope that's as far as this attempt to put limits on a certain kind of speech gets. Ask yourself: To what urgent and pressing national problem is this constitutional amendment a solution?
There is none. There is no epidemic of flag burning in this country. Incidents of flag burning are scattered, infrequent and inevitably associated with political protest. The language of the amendment specifies "desecration" but it is not aimed at ignoble uses of the flag as articles of clothing or sales promotion tools or even, metaphorically, for a member of Congress to wrap himself in.
Typical of the latter was Rep. Randy Cunningham, R-Calif., who, combining bathos with irrelevance, urged his fellow lawmakers, “Ask the men and women who stood at the top of the Trade Center. Ask them and they will tell you, ‘Pass this amendment.’ ”
The survivors of the 9/11 World Trade Center attack regularly appear before Congress and none has urged passage of a flag-burning amendment.
In 1968 Congress outlawed flag burning because it had become a standard tactic of Vietnam war protesters when neither the protesters nor their cause was particularly popular. In 1989 the Supreme Court struck down federal and state flag-burning laws, ruling that flag burning, however offensive, was protected political speech.
And flag burning in the public square is offensive and most often in support of unpopular causes — anti-globalization, anti-imperialism, etc. And even when many might support the cause — getting the United States out of Iraq — they are repulsed by burning the flag to promote it. But popular speech doesn't need protection; the unpopular views of the minority do, and for that we have the First Amendment.
The Senate will take up the proposed amendment, probably later this summer, and the early vote counts suggest it will fall two votes short of the 67 needed for passage.
Since 1789 the Constitution has been amended only 27 times. It would be a desecration itself if the 28th Amendment were a dilution of the First.