Burn the flag? Well, no - Column

The proposed constitutional amendment designed to discourage the burning of the flag is being criticized on three grounds. One is that flag-burning is an aspect of free speech; a second, that flag-burning is so infrequent as to warrant ignoring it rather than writing a prohibition against it into the Constitution; a third, that no amendment to the Bill of Rights has thus far been written, so that to amend it now is on the order of editing Hamlet. The problem with the free-speech approach is that we have lived, in the past two generations, to see the guarantee of free speech cover subjects never intended to flourish under its protection. Not very long ago, Lady Chatterley's Lover was not permitted to go on sale. That novel is, by comparison with what one now finds routinely in bookstores and kiosks, a model of reserve. The anti-censorship people love to point to Ulysses, Joyce's masterpiece, as a historical turning point. When Judge Woolsey ruled that Ulysses could be marketed, he justified the triumph of art over prudishness. Therefore (the argument runs) anything that can be held by anybody to have an artistic aspect is equally protected. There is this problem, which is that Ulysses is indeed art, and Hustler is not art, so that to cite the identical clause in the Constitution as a franchise for both is either to traduce the Constitution, or to scorn its interpreters. It is largely for that reason that the anti-flag-burning lobby is aroused. They have been hearing since 1984 from ACLU-types that burning the flag is an expression of free speech. They look at a picture of the man who burned the flag and clearly he is not speaking -- what he is doing is burning a flag. And they say to themselves, ``Here we go again. They were telling us that Free Speech protects Deep Throat, and now they are telling us that it protects flag-burning. The hell with them.'' Then we hear about its infrequency. There are only 45 occurrences on record. And since the Supreme Court overturned the Texas verdict against the flag-burner, not more than eight occurrences per year are recorded. Why go to the Constitution to prohibit something that happens as rarely as an eclipse of the sun? Surely one reason to do it is that the people wish to do it. This is hardly to endorse the position that everything the ``people'' wish to do should be done -- on the contrary: the Bill of Rights is, after all, like the Ten Commandments, a syllabus of constraints: Thou shalt not legislate against free speech . . . And a flag-burning amendment can be viewed as a contradiction of one of these constraints: Thou shalt not interpret the First Amendment as authorizing the burning of the flag. Here, it would seem, is something on the order of an oblation -- an offering, by the people of the United States, to the emblem of their country. You -- the United States -- have done a whole lot for us, and therefore we are going to do this for you, we are going to protect you against public indignity. Anybody who picks up your flag and burns it in public situations is going to the cooler for a week or so to sober up. No lcse-majeste at the expense of our flag -- that's our gift to you, and we make it with full hearts. On the question of treating the Bill of Rights as virgo intacta, and a violation of it as rape, surely we are seasoned enough to recognize that the lady is by no means still a virgin. The Ninth and Tenth Amendments, for instance, up until very recently might as well have been repealed. Under the Lopez decision, artificial respiration was given to the Tenth Amendment, though it is still too soon to know whether it will revive. Lopez said that the Federal Government had no authority to decide whether guns would be allowed near school playgrounds in Texas, that that was up to Texas. On the other hand, the term-limit decision deprived the states of authority to exercise their own judgment on how long their representatives could stay in Washington. And the First Amendment has in the opinion of many, including a score of Supreme Court Justices, been violated when read to prohibit such things as prayer in schools. Amendments have been made right along. And our beady eyes spot resistance to an amendment to the Bill of Rights as prefiguring arguments against another initiative: to restore to the Bill of Rights the meaning it had for so many years on the matter of prayer in public places other than Congress.

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