The U.S. Senate knows it is coming – an up or down vote on the Flag Amendment. All of a sudden, congressional staffers in 34 offices are trying to trivialize the issue – much ado about nothing – to justify a NO vote by their respective bosses. Justifying the vote that would kill this amendment is hard work.
Flag burning is expressive conduct; nobody’s burning flags; flag burning doesn’t hurt anyone; and flag burning is wrong, but must be tolerated and protected are among the many benign statements appearing in letters to constituents and editors to trivialize the issue – much ado about nothing.
The Constitution never guaranteed absolute freedom of speech. Conduct is either right or wrong; frequency is not a legality factor. Offensive conduct can enrage emotions and even incite violence. Illegal actions do not have to be tolerated.
What is a flag? A national banner placed on the casket of a fallen hero. What is desecration? Putting to unworthy use. Burning is not the only example of unworthy use – urinating, defecating, and other acts to defile. A reasonable person can recognize acts of physical desecration, especially someone accustomed to pledging allegiance to the flag.
So who is right and does it really matter? Right, wrong, or indifferent is much ado about nothing. The real issue is the Constitution of the United States – the blueprint of our democracy.
The Founding Fathers realized the Constitution had to be a living document subject to modification by the governed. As the ink was drying, a list of initial amendments were wisely offered of which the first ten ratified became known as the original Bill of Rights. Since then, 17 other changes were made, to include the most recent one that took over 200 years to be ratified. Amending the Constitution is very laborious and deliberative, by design. However, its “checks and balances” system was designed to catch and correct mistakes made by any branch of government – legislative, executive or judicial – no exceptions.
In 1989, contrary to judicial precedence, the U.S. Supreme Court shocked the vast majority of Americans in a 5-4 decision that the physical desecration of Old Glory is constitutionally protected conduct. By the narrowest decision, 48 state laws and a federal statute were ruled unconstitutional. Even constitutional scholars couldn’t agree on whether the decision was correct or incorrect, but they all agreed that the only way to reverse the decision was through the amendment process.
Clearly, rewriting the entire Constitution to correct a bad decision is both illogical and impractical. That is why the constitutional amendment process requires passage by a two-thirds majority in both chambers and ratification by three-fourths of the state legislatures – hardly much ado about nothing.
To date, all 50 states have petitioned Congress to send a proposed amendment to the state legislatures for ratification. The House has passed this proposed amendment an unprecedented six times thanks in a large part to tremendous and persistent grassroots pressure at the local, state, and national levels. After 17 years, the proposed constitutional amendment is within one vote of passage in the Senate. We, the people, will ultimately decide if Old Glory warrants special status and protection that the Court has denied.
S.J. Res. 12 states: The Congress shall have power to prohibit the physical desecration of the flag of the United States. When ratified, any flag protection law would have to pass the Congress, presidential veto, and judicial review before becoming enforceable, just like any other law in this democracy.
“A government of the people, by the people, and for the people” is much ado about something.
Thomas L. Bock is national commander of the 2.7 million-member American Legion, the nation’s largest veterans organization