WASHINGTON - The House on Wednesday approved a constitutional amendment that would give Congress the power to ban desecration of the American flag, a measure that for the first time stands a chance of passing the Senate as well.
But Rep. Jerrold Nadler (news, bio, voting record), D-N.Y., said, "If the flag needs protection at all, it needs protection from members of Congress who value the symbol more than the freedoms that the flag represents."
The measure was designed to overturn a 1989 decision by the Supreme Court, which ruled 5-4 that flag burning was a protected free-speech right. That ruling threw out a 1968 federal statute and flag-protection laws in 48 states. The law was a response to anti-Vietnam war protesters setting fire to the American flag at their demonstrations.
The proposed one-line amendment to the Constitution reads, "The Congress shall have power to prohibit the physical desecration of the flag of the United States." For the language to be added to the Constitution, it must be approved not only by two-thirds of each chamber but also by 38 states within seven years.
The America we love doesn't ban expressions of contempt. We are a free nation. You may burn a flag in honor or in hatred. We have a Bill of Rights that guarantees freedom of speech. This guarantee is not there to protect patriotic expressions -- those need no protection. Rather, it is there to shield speech considered outrageous and offensive.
Thus we let Nazis march and Klansmen rally. And we allow those who want to voice hatred for this country to burn a flag to show that America is great enough to tolerate even the harshest dissent without drawing the punishment of the state.
This trust is returned. Hardly anyone is inclined to burn flags. Photos illustrating stories on this ill-advised amendment are years old. Flag-burning is a non-problem, and an amendment addressing it is overkill and unnecessary.
Worse than unnecessary, the bill would give comfort to the people it is designed to constrain, the would-be flag-burners who paint our nation -- the freest on earth -- as a totalitarian state. It is a gift to them, this act of enforced patriotism, something they can point to with malice and glee: Look, not so free after all.
And should the amendment pass, they'll have a point.
Most Americans do not want this. We do not want people saying the pledge at the point of a bayonet. Instead, we want them to respect this country on its merits, not on pain of imprisonment. In the past, the Senate has acted as a bulwark against this defilement of our Constitution. It must do so now. We are proud that Sen. Dick Durbin will vote against this folly and expect Sen. Barack Obama to do the same. We trust -- for our sense of security, for our faith in the future of this country -- that 32 other senators also have the courage to oppose this measure.
The Boy Scout Book on Flag Etiquette says the proper way to dispose of an old flag is to "burn it thoroughly and completely in modest but blazing fire. This should be done in a simple matter with dignity and respect. Be sure the flag is reduced to ashes, unrecognizable as a former flag.''
The flag we recognize is strong and free and honored willingly by a grateful citizenry. It is not the fearful banner that Congress seems hell-bent to protect.