In a repeat of what happened last year, immediately prior to the 4th of July recess the US Senate will take up the debate as to whether or not to ratify the proposed anti-flag burning amendment. If the proposal is passed this time around, this amendment is sure to be ratified by 35 states in short order, and will become enshrined as part of the US Constitution.
This amendment must be stopped. The unintended consequences of the proposed 28th amendment, banning flag burning, will be far reaching. An amendment banning flag burning cannot possibly be interpreted in terms as narrow as its proponents may believe. The 28th amendment will stand in direct conflict with the 1st amendment, the right to free speech.
Imagine the interpretation and enforcement of the 28th amendment. What if a protester burns an American flag that has an extra stripe, or just one star, or is red, white and black instead of blue? What if a protester destroys an image of an American flag that is frosted onto a cake, or is immolated by virtual flames on a screen saver? What if a pundit or commentator merely utters rhetoric that desecrates the flag?
The flag amendment is designed to protect a symbol – not the flag specifically, but anything that might be reasonably construed as the flag, anything that can be said to represent the same sacred values the flag represents. By designating a specific symbol as unique, deserving protection that denies 1st amendment rights, where will the line be drawn?
If this passes, why wouldn’t any symbol that can be equated with the American flag – and by extension the America Republic – be able to claim special protection from desecration? There are infinite concepts and objects that can be symbolically equated with the American flag – and since it is the symbol that is being sanctified, all of these equivalent symbols will also become entitled to special protection.
Once this line is crossed, don’t depend on the courts to guarantee free speech rights in areas where the 28th amendment might be interpreted to apply. There isn’t recourse to constitutional rights when these rights themselves have been redrawn. The rules will change fundamentally. Proponents of the anti-flag burning amendment are not improving American rights and liberties, they are tampering with them in dangerous and unpredictable ways.
It’s interesting that the state legislatures, and the U.S. House of Representatives, which have overwhelmingly approved the proposed 28th amendment, are heavily gerrymandered institutions, whereas the U.S. Senate, where approval or rejection hangs by a thread, is the last legislative body in America that is not gerrymandered. Needless to say, flag descration is reprehensible. But America already has laws to protect important symbols and to restrict extremely offensive conduct. Modifying the constitution itself is a huge, unnecessary leap.
The reason Americans don’t want to burn their flag is because they can. Don’t take that reason away, or the sacred American freedoms represented by the American flag will be tragically undermined.