This is the proposal approved in the House by a vote of 286-130 on June 22:
"The Congress shall have power to prohibit the physical desecration of the flag of the United States."
A sensible Senate will bury this crowd-pleaser in committee. Regrettably, if the resolution reaches the floor, at least 66 senators probably can be rounded up to vote for it. If three-fourths of the states vote to ratify, our Constitution will have acquired Amendment XXVIII. It will then be up to Congress to write into statutory law the meaning of "physical desecration" and "the flag of the United States." It's not going to be an easy job.
The First Amendment Center at Vanderbilt University has just released an admirable nonpartisan analysis of the flag amendment. You can learn more than you probably want to know about the proposal by inquiring at firstamendmentcenter.org .
What is meant by "physical desecration"? Good question. In this context, the noun "desecration" is rooted in the verb "to desecrate," and the verb is thus defined: "to treat irreverently or disrespectfully." Those two adverbs reach to the heart of our American freedoms. It is part of our character to be both disrespectful and also irreverent — especially toward those institutions that most deserve reverence and respect. Hence the Flag Amendment would not touch the rabble-rouser who merely speaks of Old Glory as "a dirty old rag." Unqualified "desecration" is left alone.
Ah, but the noun is modified. The amendment would reach only to "physical" desecration. In committee, "physical" has been identified with "burning, shredding, and similar acts of defilement." How's that again? "Defilement"? Vistas of endless litigation begin to open, as the courts seek to referee a conflict between the new 28th Amendment and the old First Amendment.
Much larger questions of definition lie in "the flag of the United States." Mind you, we're talking law, and law lives on definition. Notice that the amendment does not aim at burning "a" flag of the United States. It would authorize punishment for burning "the" flag of the United States. Which flag of the United States?
Consider the task of statutory implementation. Is "the flag of the United States" our current flag of 13 stripes and 50 stars? Then, how about stomping upon an old flag from the 1920s? Almost a century ago, in Halter v. Nebraska , the Supreme Court upheld the conviction of an unlucky bartender. In violation of a state "desecration" act, he had sold bottled beer bearing an American flag on its label. You could look it up at 205 U.S. 34.
Efforts to protect the flag go back a long way. The Flag Desecration Act of 1917 was followed by the Federal Flag Desecration Act of 1968, which was followed in turn by the Flag Protection Act of 1989. The last of these measures protects "any flag of the United States, or any part thereof, made of any substance, of any size, in a form that is commonly displayed." There goes the cupcake, the T-shirt and the floral design.
The case law is discouraging. In 1970, Harold Spence taped a peace symbol to the flag and flew it upside down from his apartment window. He was protesting war in Cambodia and a killing at Kent State University. Spence was convicted under the law of Washington state. In 1974, the Supreme Court reversed. At about the same time, Valarie Goguen was convicted in Massachusetts of publicly treating the flag "contemptuously." Again, the high court reversed.
Flagwise, both our liberties and Old Glory seem reasonably secure. I would leave them that way.
(Letters to Mr. Kilpatrick should be sent by e-mail to kilpatjj@aol.com.)
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