Commentary; Posted: 6/21/06
Flag bill deserves passage
Stephen B. Presser
Guest Columnist
This summer, Congress will have one more opportunity to further popular sovereignty by passing, in both chambers for the first time, the flag amendment.
The flag amendment is a simple and elegant addition to the Constitution, providing, in pertinent part, that ìThe Congress shall have power to prohibit the physical desecration of the Flag of the United States.î
The need for the amendment flows from the Supreme Courtís misconstruction of the Constitution in the 1989 case of Texas v. Johnson.
In that case, overturning more than a century of American tradition, a five-person majority of the Court declared that desecration of the flag ñ the act of maliciously destroying the flag by such acts as tearing, burning, defecation or urination, in a manner calculated to cause outrage among any person observing the act ñ is speech protected by the First Amendment.
Until 1989, even the greatest champions of the First Amendment ñ men such as justices Earl Warren and Hugo Black ñ understood that desecrating the flag was a noxious act, and not a form of speech.
Indeed, in his powerful dissent to Texas v. Johnson, then-Chief Justice William Rehnquist observed that flag desecration is more like an ìinarticulate gruntî than any form of coherent speech.
Some acts ñ wearing a black armband, for example ñ may well qualify as protected speech, but other acts, such as threatening the president or scrawling graffiti on federal buildings, might well have some expressive content but would still not be recognized as speech protected by the First Amendment.
It is curious that a majority of the U.S. Supreme Court finds it difficult to understand these truths, which are obvious to most Americans.
In 2003ís Virginia v. Black, the Supreme Court ruled that cross burning is not necessarily protected speech but rather can be criminally punished when it is intended to intimidate and create fear of physical harm among a group of citizens.
Flag desecration, of course, is a similar act of defiance and intimidation, but perhaps the Court, in its marble palace on Capitol Hill, has lost the sense of the effect of flag desecration on ordinary Americans.
Opinion polls show that up to 80 percent of Americans believe it is appropriate to punish those who desecrate the flag and that a constitutional amendment that accomplishes this is a worthy undertaking.
Indeed, with a unanimity unprecedented in U.S. history, 50 state legislatures have indicated their support for such an amendment.
The real issue with the flag amendment is what our guiding national philosophy should be: whether there are some things that ought to be sacred and revered, and whether the American people and their representatives have the power and the duty to declare what those things are.
The real issue, in other words, is nothing less than popular sovereignty itself. To some Americans, committed probably in good faith to a society in which the maximization of individual will and expression is the only good, the flag amendment might seem an unwise burden imposed on free expression.
To most Americans, however, who understand, as did our framers, that some things are more important and enduring than individual self-actualization, who understand that duty, respect, self-sacrifice and service to the community ought to take precedence, the passage of the 28th Amendment, the flag amendment, will be celebrated as a wise return to our traditions and to the original understanding of the Constitution.
Stephen B. Presser is the Raoul Berger professor of legal history at Northwestern University School of Law, a professor of business law at Northwestern Universityís Kellogg School of Management, and a constitutional adviser to the Citizens Flag Alliance.
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