Did you hear that? It was the collective sigh of relief of flag burners across the country…all ten of them. Last night, the Senate fell one vote short of passing a constitutional amendment to ban flag desecration. Free beers all around at the Flag Burners Club!
It's going to be a lonely celebration. According to the Citizens' Flag Alliance, an advocacy group that supports a constitutional amendment, there have been only four instances of flag desecration this year. There were 12 in 2005, three in 2004, and six in 2003. Not exactly a nationwide epidemic.
But facts are so antiquated. All that mattered was that Republicans got another arrow in their “Democrats hate America” quiver by forcing a debate on a nonexistent problem. It remains to be seen if, on the campaign trail this fall, they will again channel 9/11 to score political points over the flag-burning amendment. Recall the words of the infamous Randy “Duke” Cunningham in 2005: "Ask the men and women who stood on top of the World Trade Center. Ask them and they will tell you -- pass this amendment.”
Republicans pooh-pooh the Supreme Court's ruling that desecrations of the flag are protected as free speech by the First Amendment to the Constitution. (That liberal judicial activist Antonin Scalia has said that banning flag burning “dilutes the very freedom that makes this emblem so revered.”) Republicans counter that the First Amendment protects freedom of speech, not freedom of “expression,” and that burning a flag is not speech.
But as much as we all love a good tussle over the meaning of the First Amendment, it's a bit beside the point given that there simply is nothing even approximating a flag burning epidemic that could warrant Congress debating this amendment. Remember when constitutional amendments used to address actual issues -- prohibiting slavery, say, or giving women the right to vote? Now Republicans doggedly seek to amend our founding document in case some drunk frat boys set their neighbor's flag on fire (which, one hastens to add, already can be prosecuted under the law).
Democrats -- wrongly, in my opinion -- tried to meet the Republicans halfway and offered a bill that would have criminalized flag desecration, but would avoid amending the constitution. It was handily defeated, since it had no political value to the Republicans. As one Democratic Senator put it, “This amendment isn't about protecting the flag, it's about protecting the Republican majority.”
Don't get me wrong. I love the American flag. At Girl Scout camp, I dutifully engaged in the flag ceremonies, expressing the appropriate level of horror if the flag even came near to touching the ground. I knew how to fold it up in a little triangle and hold it with reverence. My family always hung the flag outside our house on Memorial Day, the Fourth of July, and Veterans Day (if it wasn't snowing). I wouldn't want to see someone burning the flag, but I value the freedom that allows them to do it, and I'm not willing to sacrifice that to avoid seeing something that upsets me.
In testifying against a constitutional amendment, former Senator Bob Kerrey once said: “Real patriotism cannot be coerced. It must be a voluntary and unselfish, brave act to sacrifice for others.” Indeed, there is something perverse about limiting people's freedom in an attempt to make them respect a symbol of freedom. As Jonathan Alter recently pointed out, other countries that have banned flag burning include Iran, Cuba, and Iraq under Saddam Hussein.
In an often cited account, James H. Warner, a former Marine who spent six years as a prisoner of the North Vietnamese, was confronted by a communist interrogator who showed him a photo of American antiwar protesters burning a flag and told him that this proved his cause was wrong. Warner infuriated the interrogator by countering, ''That proves that I am right. In my country we are not afraid of freedom, even if it means that people disagree with us."
Senator McCain also had an experience with the American flag while being held captive in Hanoi and cited this story as one of the reasons he supports a constitutional amendment: One of his cellmates secretly fashioned a needle from a bamboo shoot and used strips of white and red fabric and the blue of his prison garb to sew an American flag on the inside of his shirt. Eventually, the shirt was confiscated by the North Vietnamese, and the American prisoner was severely beaten. The first thing the young man did after that beating was to begin sewing another American flag inside his shirt.
McCain's story is compelling -- as are the many stories of veterans who have felt betrayed, angry, and hurt upon seeing pictures of burning flags -- but its direct relevance to this debate is a bit obscure. Should the constitution be amended to avoid painful experiences? There are veterans who would argue that seeing pictures of war protesters is painful for them -- are we going to outlaw protest?
At any rate, regardless of the merits of the issue or last night's defeat in the Senate, something tells me this isn't going away. After all, 2008 is right around the corner.
Kirsten A. Powers served as deputy assistant U.S. Trade Representative for public affairs in the Clinton administration and is a New York-based Democratic consultant. In addition, she writes the blog PowersPoint.
