Blast! - Congress declines to pass constitutional amendment against flag desecration - column

National Review, Nov 24, 1989 by William F. Buckley, Jr.

Blast! I knew it. I-knew-it-I-knew-it-I-knew-it. Several reasons where given for declining to pass a constitutional amendment asserting the right of Congress and of the states to protect the flag against certain unfriendly acts. But the real reason the amendment didn't make it is the fear of the intellectuals to poach upon territory in which they have trained themselves to think of the Supreme Court as infallible. The Supreme Court is our Established Church, never mind what the First Amendment says about Established Churches.

Other reasons for voting it down were, of course, advanced. There was, first, the utilitarian line. Why not, one faction argued, write a new law so ingenious that the Supreme Court will let it stand? Accordingly the House came in with a rococo bill which even takes time to authorize the destruction of the flag "when it has become worn or soiled." Then the act goes on to say that if a federal court refuses to authorize prosecution under the new act, citing the First Amendment and the antecedent decision of the Supreme Court, "the clerk of the Supreme Court shall promptly notify the clerk of the House of Representatives and the secretary of the Senate ... and each House of Congress shall have the right to intervene in the case for the purpose of defending the constitutionality of this section." What that means is that before a Supreme Court rules finally to reject this brummagem evasion, said Court will notify the Houses of Congress, each one of which can hire a fancy lawyer to try to persuade the Court that there is in fact a difference between free speech, and burning the flag.

Now the purists--ACLU types, we can briefly characterize them--aren't happy with the new bill, but don't care very much about it either, because they are confident that the Supreme Court will knock it out the first time it comes around. You see, the ACLU types insists that there should be no authority of any kind that protects the flag from mutilation of any sort, on the grounds that burning the flag, or spitting on it, or defecating on it, is a form of speech and as such should not be molested, because the First Amendment's guarantee of free speech should reign supreme.

Their position simply declines to distinguish between physical acts, and verbal acts. By their view, the dumb can speak. A liberating thought, even though it does some damage to biological axioms. If a deaf mute burns a flag, he would have the double defense, a) he couldn't hear the officer who warned him not to desecrate the flag, and b) lacking alternative means of expressing himself, he had no way to register his opposition to federal policies save by burning the national symbol.

The purists were very influential in the discussions that finally intimidated 11 Republicans into voting against the amendment. And then the ghost of the another menace was floated. Even Senator Barry Goldwater, the world's most sensible man, advised us last week that there was great danger in amending the Constitution. True, his warnings apply primarily to the calling of a Constitutional Convention, of the kind we have been talking about for many years, to forbid excessive spending. The fear is that, once an assembly is convened to redesign the Constitution, it will come up not with a surgeon's scalpel effecting a tiny excision, but with a spadeful of new constitutional law. It has time and again been established that the dangers of such runaway conventions are illusory, because a) the bill convening the convention can specify an agenda; and b) we have a brake against excess: any amendment would need affirmative votes by 38 state legislatures. It is unlikely that 38 legislatures would vote to forbid Harvard processors to read James Joyce, or whatever it is they are currently afraid of--that, or permit a village to situate a creche in the Town Hall, the other great menace to our freedom.

I should add a final faction, for which one has respect. Call them the constitutionalists. Their commanding general is James Jackson Kilpatrick, the formidable columnist, historian, and polemicist. His rule is, really, quite simple, though it is subtly argued. It says: "Leave the Constitution alone." Perhaps one day the Court will do something so outrageous as to persuade Mr. Kilpatrick that the time has finally come to issue a formal rebuke. That position is very different from my own. Which is: Seize any opportunity you can to upset a Court ruling. Just once. And the purpose of this is to remind ourselves that we are a self-governing nation.