SUPPORT FOR A CONSTITUTIONAL AMENDMENT protecting the American flag from desecration is broad, deep, heartfelt, patriotic -- and wrong.
The Star-Spangled Banner is one of the most beloved and inspiring emblems in human history, and for good reason. The republic for which it stands, though undeniably flawed, is the world's oldest and most successful experiment in freedom. For generations, the American flag has been a great symbol of hope, of democracy, of opportunity. The thought of letting it be desecrated with impunity appalls even those who do not wear their love of country on their sleeve.
Understandably, then, when the Supreme Court ruled that the Constitution does not permit laws banning flag desecration, the overwhelming response was: "Then change the Constitution." An amendment doing so has already passed the House of Representatives and will be up for a vote in the Senate this fall. Which means it may be only a matter of months before the Flag Protection Amendment is dispatched to the states to be ratifed.
The states should say no.
Not because the high court's flag-burning cases in 1989 and 1990 don't underscore a problem that needs fixing. They do. But the problem isn't the mutilation of the flag by America-haters. It's the mutilation of the First Amendment by judges.
The proposed addition to the Constitution is just one sentence long. "The Congress and the States shall have power to prohibit the physical desecration of the flag of the United States." But nothing in the Constitution deprives them of that power now. The First Amendment commands that "Congress shall make no law . . . abridging the freedom of speech, or of the press." Flags don't enter into it. The Constitution neither prevents nor prescribes the punishing of flag desecrators. It is silent on that point, as it is on most points.
Is it incompatible with freedom of speech to make flag-burning a crime? Nowhere does the First Amendment say so. Never have most Americans thought so. Nor have most states. Indeed, until the Supreme Court's 1989 decision in Texas v. Johnson -- which overturned the conviction of flag-burner Gary Johnson and struck down the Texas law he was convicted of violating -- desecration of the Stars and Stripes was illegal in 48 states and the District of Columbia. Following the court's ruling, bipartisan majorities in both houses of Congress swiftly passed a national Flag Protection Act.
In other words, a majority of legislators, state and federal, finds no conflict between the First Amendment's guarantee of free speech and a law codifying society's veneration of the flag. Only the Supreme Court's unelected justices say they are incompatible. Or rather, a bare majority of those justices: The flag-burning cases were 5-4 decisions. Why should the idiosyncratic view of five appointed judges trump the opinion of thousands of elected officials at all levels of government and in nearly every state? Why should the Bill of Rights have to be amended just because a slim majority of the court reads something into the First Amendment that isn't there?
Nothing decrees that if the Supreme Court wrongly decides a constitutional case, the subject is closed. The judiciary is a coequal branch of government, not a superior one. Not only are the other branches not bound to accept the court's interpretation of the Constitution, they are bound not to when they are convinced that the court has erred. Congressmen, presidents, and state legislators, after all, also take oaths to uphold the Constitution.
In 1857, the Supreme Court ruled in the Dred Scott case that under the Bill of Rights, Congress had no power to ban slavery and that black Americans "had no rights a white man was bound to respect." Did that settle the matter? Were Congress and the free states obliged at that point to lay aside their convictions and accept the Supreme Court's constitutional blunder?
Abraham Lincoln thought not, and said so repeatedly. "If the policy of the government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court the instant they are made," he warned, "the people will have ceased to be their own rulers, having . . . resigned their government into the hands of that eminent tribunal."
Or as Andrew Jackson had bluntly put it 30 years earlier in disregarding a ruling by the then-chief justice: "John Marshall has made his decision. Now let him enforce it."
Lincoln and Jackson understood: Bad Supreme Court decisions should be resisted, not deferred to. Resisted how? Congress and the states can re-pass flag protection statutes and let them be challenged anew. (The court has changed since 1990.) The justices can be stripped of the authority to decide cases dealing with flag-desecration. (Article III of the Constitution explicitly gives Congress that power.) Presidential candidates can campaign on the issue, promising to appoint justices who do not read the Bill of Rights to encompass pyromania.
What we must not do is change the First Amendment to fit the Supreme Court. If the justices are wrong -- and most of the nation, the states, and the Congress say they are -- it is the justices who will have to change.
(Jeff Jacoby is a columnist for The Boston Globe).
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