The Illogical Flag-burning Amendment

By  Edwin  D.  Reilly, Jr.                            
for the Sunday Gazette




                  You're a grand old flag, You're a high flying flag
And forever in peace may you wave.
 You're the emblem of, the land I love,
The home of the free and the brave.
                                                           
-George M. Cohan
 
The American flag is a symbol, admittedly one capable of evoking strong emotion.
But a symbol is not the thing itself.         
                                                            -Los Gatos Weekly-Times, November 27, 1996.

July 4 is my favorite secular holiday. All my life, I have been a ceremonial conservative. I love "76 Trombones," fireworks, parades that feature Sousa marches and Old Glory, and the patriotic songs of George M. Cohan and Irving Berlin. Like John F. Kennedy, my favorite song is "Hail to the Chief," but I liked it better when it was played for him.

Now, goaded on by many veterans (and I am one myself), the House of Representatives, as it has done in every session since the one led by Newt Gingrich in 1995, has passed a so-called "flag-burning amendment" bill as the first step to amending the U.S. Constitution. Actually, its simplistic wording doesn't mention flag burning per se; its entire text consists of the 20 words "The Congress and the states shall have power to prohibit the physical desecration of the flag of the United States." <>The popular appeal of such an amendment is not surprising, but that appeal is 100 percent emotional. As one of the opening quotes says, "a symbol is not the thing itself." Burning or harming a flag doesn't hurt the country—unless, that is, one believes in voodoo. (And that's usually reserved for economics.) The philosophical objections to the proposed amendment are based on its infringement of the First Amendment. Another objection is that it is a solution in search of a problem. Since 1776, there have been only 200 documented instances of flag burning as a political protest, less than one per year. One is more likely to be hit by lightning or win the lottery than to witness an act of flag burning as a political statement. But by the law of unintended consequences, there are likely to be more if the amendment is adopted.

But my own objections are based on linguistics and logic. First, all of the dictionaries I own from the unabridged Oxford English Dictionary to many later ones say that "desecration" has a religious connotation  Desecration, from the Latin "desecrate," means "to take away its consecrated or sacred character." For examples, someone who breaks into a synagogue and destroys the congregation's copy of the Torah or who breaks into the burial vault of a Christian saint could be said to have committed an act of desecration, but destruction of a secular object, quite literally, cannot be so characterized, however distasteful in might be.

Now, as to logic. Suppose the proposed amendment is also passed by a two-thirds margin or better in the Senate and then ratified by the necessary three-fourths of the states. Imagine the Congress or some state legislature trying to draft an applicable statute. Their bill would have to start with a definition. What, precisely, is "the flag of the United States"? Is it not only the current 50-star flag, proudly shown above, but also any one of the 26 that preceded it? If only the current one, then burning an old one would not be covered. And must the flag be made of cloth? What about plastic? What about mere images of the flag, such as those on T-shirts that almost but don't quite cover beer bellies?

Just as there are canonical ways to display the flag (its union, for example, must always be at the top left, even when the flag hangs vertically), there are precise specifications for a legal flag of the United States (see http://www.usflag.org/flag.specs.html). Suppose a pseudo-flag had 15 stripes; or its red and white stripes were reversed; or its "stars" had the wrong shape; or its 50 stars had a rectangular rather than a staggered layout; or the ratio of its length to its width was too short (it must be exactly 1.9 to 1, no more, no less, as is the case here).  If someone were to burn a flag with one or more of those defects, would that be covered under law? If so, our lawmakers will have to find a way to describe lots of things that look pretty much like legal flags but really are not. Lots of luck.

The most recent House passage of the desecration amendment, on June 4, was by a margin of 300-125 with 10 abstentions, that is, it squeaked by with 69% of the full House, 2% more than needed. Sad to say, our two local Representatives, both of whom occupy very safe seats, voted for the amendment. The Senate is not likely to concur, but I was astounded to find that Senator Orrin Hatch's bill is co-sponsored by Democratic Senator Dianne Feinstein of California. But if the Senate can muster the needed 67 votes, the President cannot veto the action (nor would he, of course), and state legislators all over the country will ratify the amendment in record time (unless, of course, they read my column).

Now, suppose this happens. I have a recommendation for an appropriate penalty for anyone convicted under laws passed in accord with the new amendment. That person should be sentenced to sit through every session of Congress for a year and attentively listen to all debate. That would be a Capitol punishment that befits the crime.

Edwin D. Reilly, Jr., a ceremonial conservative, lives in Niskayuna and is a regular contributor to the Sunday Gazette opinion pages.