Substance of the Symbol Protects the Flag
I TOO am essentially patriotic. So seeing somebody burn a flag is a bit like getting kicked in the gut. I'm tempted to cry out, ``There oughta be a law!'' There was, in fact, until late last month, when the United States Supreme Court ruled unconstitutional a Texas statute prohibiting ``desecration of a venerated object'' if that is likely to cause ``serious offense.''
Now the pressure is on for a constitutional amendment to override that ruling. As proposed the amendment would read: ``The Congress and the states shall have power to prohibit the physical desecration of the flag of the United States.'' Lined up behind it: President Bush, many members of the House and Senate, and a majority of the public as measured by opinion polls.
The issue itself is fairly pure. There's not a lot of money, power, or religious turf at stake here. It's inherently a constitutional concern. So it's easy to see why the court, holding guard over First Amendment rights, ruled that flag-burning is a fairly harmless form of expression and therefore deserves protection.
But it's also easy to appreciate the motives of the pro-amendment crowd. They're on the side of age-old tradition, which holds that loyalty to the nation is an essential first step in guaranteeing that the Constitution, and its free-expression amendment, remain in force.
So what's the difficulty? It lies not in legal interpretation or in passionate patriotism. It lies in the confusion of substance and symbol. The point is not simply that ``the flag'' isn't ``the nation.'' Most people know that. The question is, ``What is `the flag'?'' Is it a physical object, composed of fabric of a certain dimension, pattern, and color? Or is it a design comprising stars and stripes, whether embodied on fabric, wood, metal, or whatever? Must it conform exactly to that design in order to be called ``the flag,'' or can it be an approximation of that pattern? Is it, at bottom, a thing or an idea?
Esoteric distinctions? Hardly. Under the amendment, I'll still be jarred when someone burns a big cardboard placard picturing a flag. Will that be illegal?
What about someone who purposefully destroys, say, a trailer truck on which a large flag is painted - or burns a motorcycle jacket with a flag stitched to the back? Or what about those who create and then burn a pseudo-flag with only 12 stripes and 49 stars - rightly claiming that they never burned ``the flag of the United States''? Or those who make a wrenching, passionate videotape showing a flag-burning - but whose flag only appeared to burn through trick photography?
This isn't just fancy intellectualizing. Flag-burning has one purpose: to bait those who, confusing symbol and substance, react when the physical symbol of patriotism is threatened. Flag-wreckers don't care about flags. They care about reactions. And this amendment will hardly stem those reactions.
True, the difficulty of enforcing laws is never reason enough not to pass them. It should, however, send up a warning that something is amiss.
In this case, the difficulty arises because we haven't got a clear fix on what we want to accomplish. Do we merely want to ban flag-burnings, or to encourage a real reverence for our country? Is the popular hunger for this amendment a tacit admission that, having failed in establishing patriotism as a deep-seated community value, we'd better grasp at legislation to compensate for our failure?
Can we legislate reverence? And even if we could, do we want to perpetuate the trend, so evident in late-20th-century America, toward more and more laws reaching into areas that once were defined, and policed, by local mores and customs? Are we content to replace the inner restraints of ethics with the outer restrictions of legality?
If we are, we've missed the point. Patriotism lives through substantive ideas, not just symbolic objects. Protect the substance, and the symbols will take care of themselves.