Sometime before the Fourth of July, the Senate will vote on a constitutional amendment to prohibit the physical desecration of the American flag. The House of Representatives already has passed the same legislation by the required two-thirds margin, and enough state legislatures would vote for the amendment to assure its approval.
So the final bulwark against this historic assault on freedom of speech consists of 34 Senators with enough courage to stand up for the substance of the nation’s ideals—and to resist transforming the beloved symbol of those ideals into an authoritarian fetish. That is the real danger to the flag, whose spirit the Republican majority is desecrating with a cynical partisan zeal.
Senator Harry Reid of Nevada, the Democratic minority leader, has scornfully suggested that the flag amendment is merely another of the “pet issues of the right wing,” deployed by the Republicans to distract from their failure to address falling wages, ballooning deficits and rising energy and health-insurance costs. Not long ago, confronted with a constitutional amendment to ban gay marriage, he rightly asked: “Why are we being directed by the President and this Republican majority to debate an amendment to the Constitution, a document inspired more than two centuries ago? Why would we be asked to change this American masterpiece?”
Those were highly pertinent questions. Perhaps he should look in the mirror when he asks them next time. Should the Senate approve the flag amendment with 67 votes, a full measure of blame will belong to Mr. Reid. He will vote “aye,” even though he has denounced the bill as an election-year stunt whose sole purpose is to embarrass his Democratic colleagues.
That ugly tactic has intimidated several Democratic Senators in conservative states. Of the dozen who have supported the amendment in the past, some could be excused on that basis, at least so long as there weren’t enough votes for passage. Others such as Dianne Feinstein of California, who is a co-sponsor of the amendment, can make no such plea. While doing injury to the Constitution, she also insults the intelligence of her constituents by telling them that she is really protecting free speech.
Fortunately, there is someone else in power who is willing to stand up for free speech, even at the risk of his own future prospects.
If the Senate rejects the flag amendment and preserves the Bill of Rights from unprecedented disfigurement, a full measure of thanks will be owed to Senator Mitch McConnell of Kentucky, the Republican whip and prospective leader. He has vowed to vote “nay,” even though his party plans to use the amendment to preserve their majority.
Irony abounds in the Congressional theater of the absurd, where prevailing opinion equates “support for our troops in Iraq” with a determination to keep them in peril indefinitely, and demonstrates “respect for marriage and families” by barring gay couples from the affirmation of those institutions. (Speaking of irony, the prime House sponsor of the flag amendment was none other than Randy “Duke” Cunningham, the former California Congressman and self-styled super-patriot now serving a long prison term for corruption.)
It will be especially weird next fall, however, to hear the Republicans attack brave Democrats who dared to vote against the flag amendment as unpatriotic and unfit to sit in the Senate. Those same Republicans expect to elect Mr. McConnell, who has always opposed the amendment, as their new leader next year.
Now both Mr. Reid and Mr. McConnell say they are acting on principle. The latter will vote against the amendment because he believes that it violates fundamental liberties, while the former will vote for the amendment because he wishes to be “consistent,” having supported it in the past. Of those two arguments, liberty should win over consistency.
But consistency may be the best justification that Mr. Reid can muster, since there isn’t any sensible reason to approve the flag amendment beyond its atavistic emotional appeal. While nobody enjoys watching some idiot burn the flag, this has become a rare spectacle over the past two decades. Not many of those incidents were actually intended as political protest, and most violated another law and were duly punished. Displays of the Stars and Stripes by Americans of all political persuasions have increased markedly since 9/11.
Like so many resolutions and acts of Congress—and like the proposed statutes to prohibit flag desecration—this misguided amendment is a “solution” without a problem. But unlike many of the stupid things that politicians do, this one is important. It is a statement of contempt for the First Amendment and a dangerous step toward further restrictions on speech and expression.
Let’s hope that Mr. McConnell and at least 33 of his colleagues can resist the entreaties of those in both parties who would protect the flag by torching the Constitution.