Assaulting Our Rights...

A story that ran across the AP last week on Wednesday night did more than disturb me. The several hour long diatribe, several irate phone conversations, and two letters I sent to Illinois representatives in Congress are a strong indication that HR J 10 was more than a mere thorn in my legally minded side. Joint House Resolution 10 proposes a Constitutional amendment that gives Congress the power to ban flag desecration. For all of you like-minded First Amendment supporters out there, say good-bye to the protections of Texas v. Johnson.

I will preface this with a little history. Prior to 1989, 48 states and the federal government had flag desecration statutes on the books. In 1989, the Supreme Court heard what would become a landmark case, Texas v. Johnson. Police arrested the defendant, Johnson, for flag desecration after he burned a flag while protesting a political convention. Johnson argued in his defense that the flag desecration statute unconstitutionally abridged his freedom of speech. The Supreme Court decided in Johnson's favor in 1989, and the decision subsequently abolished the 49 laws proscribing flag desecration.

This particular amendment to the Constitution aims to take the power away from the Supreme Court by preventing them from being able to render such statutes violative of the Constitution. While not technically an amendment to the First Amendment, the new amendment would create a damaging precedent much like a constitutional definition of marriage.

The First Amendment aimed to embody the founding fathers' opposition to oppressive practices in England in the late 18th Century. At that point, the Monarchy declared a state religion and prevented any negative press about the royal family. These policies led the drafters of the Constitution to state with specificity, "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press." Const. Amend 1. Therefore, the purpose of the First Amendment is to preserve the right of the people to speak in whatever reasonable manner the people see fit.

Though Congress doesn't feel that burning a flag constitutes reasonable speech, it’s important to note that such an expression is a fundamental act of speech, intended to convey a message of vehement distaste with the actions of the government. Ideally, burning a flag symbolizes the utter disgust with the state of the nation. While the purpose of the First Amendment aims to protect political speech, this amendment would only further an oppressive approach to the most fundamental of our civil rights. The rationalization for the amendment is a strong indication of this negative reaction to speech critical of the American government.

Various news agencies quoted house republicans as saying the purpose of this amendment is to allow protection of the symbol of American Patriotism or the American ideal. Essentially, this amendment aims to imbue the flag with pro-government sentiment and restrict its use for displays of patriotism and pledges of support for the actions of the Government. By imbuing the flag with these characteristics, the amendment prevents the use of the flag for speech demonstrating negative opinions about the government. Furthermore, the notion that protecting the flag is necessary to foster patriotism is utterly absurd.

If patriotism is nothing more than our flying of the flag, our nation is in grave danger. The concept of the American ideal is embodied in the way we, as citizens, choose to lead their lives. There is no more fundamental display of those ideals than political discourse itself. Furthermore, denigrating our national ideology into something corporeal makes the ideology as fragile as that corporeal object. It is too easy to destroy an object; the fundamental ideas upon which this nation was created are some thing far greater than sewn cloth. The notion that something corporeal that represents our ideals needs greater protection than the ideals themselves is even more repugnant.

It’s the ideals that need protecting, not the representation of those ideals. Protecting the representation detracts from the meaning of the ideology, relegating our reverence for government to nothing more than obedience. Some say that desecrating a flag is un-American. To those I say allowing this attack on the most fundamental of rights, upon which this nation was founded, is equally un-American. What is at stake here is not simply the destruction of the flag, but our ability to speak freely. Weighed in the balance of justice, the freedom to speak should always win.