Senate about to pass constitutional amendment on flag desecration

In 2005 the House of Representatives passed, for the sixth time in recent years, a constitutional amendment prohibiting the desecration of the American flag. And now it appears that the Senate, voting tonight, may also pass the amendment, since 14 Democrats have announced their support.

In principle I support such an amendment, made necessary by the federal courts’ outrageous expansion of the First Amendment prohibition on Congressional infringement on the freedom of speech (and, under the Incorporation Doctrine, on the states’ infringement on the freedom of speech as well) to mean the prohibition of government control over any expressive behavior, including urinating on the U.S. flag in public. Since the federal courts so expanded the reach of the First Amendment to block any statutory protections for the flag, the only recourse was a special constitutional amendment.

But I have a problem with this amendment. It reads: “The Congress shall have power to prohibit the physical desecration of the flag of the United States.” “Physical desecration” would seem to include only actual physical acts done to a U.S. flag, rather than use of a flag in clothing and in other inappropriate ways. If people can still wear the flag on the seat of their pants, or in the form of a skirt or shirt or bikini, or as a sweat band, that to me is also a public expression of disrespect for the flag—desecration of the flag—that government, whether federal or state, ought to have the power to ban. If such desecrating expressions are still permitted , what is the logical and moral basis for banning desecrating physical acts such as flag burning? Perhaps the Congress didn’t want to give itself the power to legislate on such fine sartorial details, as that might seem inappropriate or silly and so undermine respect for the very Congressional authority that is being expanded by the amendment. But then why not also give the states the power to make laws concerning the treatment of the flag, in which case each state could pass flag legislation suitable to its own prevailing ethos and standards, as suits our federal system? But Congress did not do that; it only gave the Congress the power to pass such laws. Why?

Posted by Lawrence Auster at June 27, 2006 07:46 PM | Send