That burning sensation is back

May. 26, 2005

By Linda Campbell
Star-Telegram Staff Writer

Sure as Old Glory camp chairs, starry-striped flip-flops and show-your-patriotism T-shirts, get ready for that reliable summer annoyance: the constitutional amendment to ban flag desecration.

Almost annually, it reappears as peskily as a tenacious mosquito on a sweltering night:

"The Congress shall have power to prohibit the physical desecration of the flag of the United States."

Except that this year, with the Senate preoccupied by other contentious business, this tersely worded, ill-conceived assault on the Constitution has been lurking more like fire ants that you don't notice until they've gnawed your toes into agony.

Maybe no one will stir the mound this Flag Day (June 14) or July 4, this not being an election year wanting for dependably emotional issues.

But you never know.

Sen. Orrin Hatch, R-Utah, who introduced the Senate version in April, promised in 2000 (according to the Star-Telegram's archives): "This is going to pass, whether it does today or tomorrow or next year."

Hatch has 51 co-sponsors for his bill, overwhelmingly Republicans but including four Democrats. It's alarming that more than half the Senate sees no problem with revising the Bill of Rights unnecessarily and unwisely.

But keep in mind that passage would take 66 senators -- and three summers ago, 62 had signed on as co-sponsors. So this could be a sign of good sense prevailing.

On Wednesday, the House Judiciary Committee approved California Rep. Randy Cunningham's version, which has 141 co-sponsors. Passage by the full House would require 290 votes.

The House has tried repeatedly to undo what the Supreme Court did on June 21, 1989, when it ruled that First Amendment protections for political expression prevented Texas from punishing Gregory Lee Johnson for burning a U.S. flag during a political protest at Dallas City Hall during the 1984 Republican National Convention.

The Senate has never quite gone along, and there's no compelling reason for that result to change.

Just as there were then, there remain today powerful arguments for and against restrictions on the repugnant message that flag-burning conveys -- and reasonable people of all political stripes will line up on opposite sides, not always predictably.

Remember that even though now-deceased Justice William Brennan wrote the eloquent, persuasive opinion for a 5-4 majority in Texas vs. Johnson, he was joined by Justice Antonin Scalia, considered a conservative stalwart.

"Our decision is a reaffirmation of the principles of freedom and inclusiveness that the flag best reflects, and of the conviction that our toleration of criticism such as Johnson's is a sign and source of our strength," Brennan wrote.

"The way to preserve the flag's special role is not to punish those who feel differently about these matters. It is to persuade them that they are wrong."

Justice John Paul Stevens, often characterized as a liberal on the court, wrote an equally moving dissent:

"Conceivably that value will be enhanced by the Court's conclusion that our national commitment to free expression is so strong that even the United States as ultimate guarantor of that freedom is without power to prohibit the desecration of its unique symbol. But I am unpersuaded. The creation of a federal right to post bulletin boards and graffiti on the Washington Monument might enlarge the market for free expression, but at a cost I would not pay."

There might be particular sentiment for a flag-desecration amendment at a time when we see jarring, infuriating images of anti-American protesters setting fire to our national symbol, as they recently have in Afghanistan, India and Pakistan.

There might be misguided belief that toying with the Constitution -- which is not merely a symbol of our national values but the embodiment of them -- would somehow show support for the men and women who are fighting and dying for us abroad.

But, in truth, flag-burning protests that might actually be addressed by Congress -- despicable and vicious acts -- are minuscule. And they're outnumbered by far by other questionable incidents -- such as, say, small flags flapping from vehicle roofs until they're tattered shreds, flags masquerading as picnic napkins and other callous commercialization in the name of patriotism.

In truth, posturing in Congress, however sincerely motivated, will do less to honor the flag than ordinary Americans' saluting the values that it represents by flying it proudly on their porches, participating in their communities and teaching their children about the rights and responsibilities of living in a free country.