Bush's Call Sparks Ardent Debate
Defenders of Old Glory may undermine First Amendment guarantees, cautious voices warn. THE CONSTITUTION: AND THE FLAG
WASHINGTON — THE American flag debate has exploded like Fourth of July fireworks. President Bush's campaign for a constitutional amendment to protect the flag appears to be building support across the United States. Some officials say they believe an amendment can be approved by the Congress and the states as early as next year.
At the same time, a number of voices - conservative and liberal - are urging extreme caution.
The flag debate is touched by irony. For more than 200 years, Old Glory has been the symbol of freedom. The President and other supporters of a flag amendment say they don't want to limit free speech or undercut the First Amendment.
Yet to protect the flag, Americans' freedom of expression, as defined by the US Supreme Court, may be reduced.
Mr. Bush describes the language of the amendment as ``stark'' and ``simple,'' namely: ``The Congress and the states shall have power to prohibit the physical desecration of the flag of the United States.''
The President says: ``This amendment preserves the widest conceivable range of options for free expression.''
Not everyone, however, agrees that the amendment is harmless.
Conservative columnist James J. Kilpatrick argues that the amendment ``would set a precedent that is pretty bad.'' Speaking on the television show ``Inside Washington,'' Mr. Kilpatrick said that once Americans ``start fiddling around with the First Amendment ... I'm afraid you get into all kinds of changes in the nature of the Republic.''
Liberal attorney William Kunstler of the Center for Constitutional Rights calls the proposed amendment a ``monstrosity.'' Mr. Kunstler charges that the amendment is the work of ``pandering politicians who want to jump on the flag-waving bandwagon and get the public to give up some of its rights.''
Scholars note that this would be the first limitation on First Amendment freedoms ever added to the Constitution.
Yet 71 percent of Americans queried in a Newsweek poll say that they would support an amendment to ban flag-burning. And 65 percent in the same poll disagreed with the recent Supreme Court ruling that allowed such burning as a form of political protest.
The heart of the debate in Washington focuses on the First Amendment, which guarantees freedom of speech, religion, press, assembly, and petition.
It boils down to the question: Would this amendment abridge fundamental rights of free political expression. Would it open the floodgates to other ``popular'' changes that could undercut the Bill of Rights?
Triggering the debate was the Supreme Court decision in a Texas case. The court decided that to imprison someone for flag-burning would violate the First Amendment.
The justices made it clear that they find flag-burning repugnant, just as most Americans do. Yet at times, burning the flag is a form of political expression, as it was in Texas.
At issue was a 1984 incident, when an avowed communist soaked a flag with lighter fluid outside the Republican National Convention and set it on fire. The protester was arrested under a Texas statute that prohibits defiling the flag.
Justice Anthony Kennedy, a Reagan appointee to the bench, explained the decision:
``It is poignant but fundamental that the flag protects those who hold it in contempt.''
The court, which decided the case by a narrow 5-to-4 margin, said this sort of obnoxious behavior tests the fundamental principles of the Constitution, and noted that ``sometimes we must make decisions we do not like.''
Yet the flag dispute touches Americans at a visceral level. As Bush told reporters the other day:
``Respect for the flag transcends political party. ... It isn't liberal or conservative. And I just feel very, very strongly about it, and perhaps I haven't been quite as emotional as I feel about it.''
Bush says the flag is ``the unique symbol of America'' and that ``protest should not extend to desecration.''
Senate minority leader Robert Dole of Kansas discounts First Amendment concerns. He told a rally at the Iwo Jima Memorial in Arlington, Va.:
``Some critics say we're wrong on this one, that this is a freedom-of-speech issue. Well, they're right. Americans are speaking out in every corner of the country. And what they are saying is, `Keep your hands off Old Glory.'
``Americans may not know every nuance of constitutional law. But they know desecration when they see it. They're demanding action. So today I say to America: `We hear you loud and clear.'''
Rep. Jack Fields (R) of Texas told the House that Gregory Johnson, the man who burned the flag at Dallas, ``has the right to say what he likes.'' But ``he goes too far when he desecrates everything we believe in and everything that we stand for. He is not desecrating a piece of cloth. He is desecrating everything that America is and lives for and fights for and dies for.''
Time magazine columnist Hugh Sidey, speaking on ``Inside Washington,'' says there's danger in the court's ruling:
``Where one man ... could burn the flag, and that image could then be thrown across continents and millions of people see that - I think the damage ... on young minds ... needs to be taken into consideration.''
Opposition to an amendment, however, comes from a wide spectrum of commentators, scholars, and experts. Examples:
Rep. Ted Weiss (D) of New York: ``We have nothing to fear from the flag-burner. We have a great deal to fear from those who have lost faith in the Constitution.''
Writer Elizabeth Drew: ``The Bill of Rights is very sacred. It protects liberties, it protects minority opinion against this very sort of outpouring of popular rage.''
Ira Glasser, executive director of the American Civil Liberties Union: ``I think it would be the beginning of the unraveling of the right of free speech.''
David Cole, Center for Constitutional Rights: ``We can't have a situation in which the government is allowed to put people in jail because they choose to use a symbol in a way that the government doesn't deem appropriate.''
Columnist George Will: ``There is no flag-burning problem sufficient to justify the radical step of amending the Constitution. ... Keep your hands off Mr. Madison's document.''
William Lasser, a political scientist at Clemson University, says this is the kind of emotion-laden case where an amendment could sail past all opposition.
Dr. Lasser notes that in the historical context, Bush's call for an amendment is unusual. Through history, ``presidents were very reluctant to call for amendments.
Lasser, author of ``The Limits of Judicial Power,'' explains that from the 1830s to the 1970s, amending the Constitution was generally seen as a ``bad idea.'' Reagan changed that, and Bush is following in his footsteps.
Under Presidents Reagan and Bush, the GOP has called for a balanced-budget amendment, an amendment to outlaw abortion, and now an amendment to protect the flag. An amendment to allow the line-item veto may also be in the works.