Sixty-three percent of Americans oppose a Constitutional amendment to ban flag burning.  (This is up from 49% in 1997, and this is the highest number yet recorded.)

So why will Congress vote on the proposed amendment next week?  For the seventh time?  Because, evidently, 63% of the people understand what the First Amendment means.  (And, frighteningly, 30% of Americans don't.)  The House is poised to vote on the Amendment next week, and being an effectively knee-jerk body, I'm sure it will pass as it has six times previously.  Then it will go to the Senate, where the amendment has always died.

However, the current Senate climate may mean that the measure will pass by one or two votes.  From USA Today's story:

But this time may be different. Amendment supporters say last year's election expanding the Senate Republican majority to 55 has buoyed their hopes for passage. Five freshmen senators - Richard Burr of North Carolina, Tom Coburn of Oklahoma, Jim DeMint of South Carolina, John Thune of South Dakota and David Vitter of Louisiana - voted for the amendment as House members and plan to do so again.

They will be joined by at least five Democrats who have co-sponsored the resolution, including Dianne Feinstein of California and Ben Nelson of Nebraska. Both are up for re-election next year.

Well, with such a congressional tizzy being made over flag "desecration", it sure must be a real problem, right?  I mean, those 63% of Americans who oppose it must not know the real facts like their Congresscritters do, right?  Those elected representatives have their collective fingers on the pulse of America, right?  This is a bona fide emergency, right?

Actually, no.  You know how many flag burnings the Citizens Flag Alliance (a pro-amendment group working to outlaw flag burning) reports for 2005 thus far?

One.

That's right.  One. 

Well, you say, it must be a slow year thus far.  We haven't had the Fourth of July yet, nor have we had Veterans Day.  And the summer barbecuing season is only recently under way, so lighter fluid is only recently easier to come by, right?  There must have been a lot more occurrences in previous years, right?

Wrong again.  It happened in three locations last year.

And six times in 2003.

So, actually, flag-burning is on the decline.  And these are really tiny numbers -- absurdly tiny, considering that the US has a population of more than 296 million.

You know what?  I bet that way more flags have been draped on the caskets of American troops killed in Iraq -- which would be 1,713, as of this writing -- than have been burned in protest in oh, the last twenty-five years.

So why is this such an urgent problem, for our elected representatives (they represent us, remember?  Not the other way around) to go against the demonstrated will of the people and take such an extreme step as amending the United States Constitution?

See, the First Amendment is crystal-clear, to my reading.  Let me emphasize:

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; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

What part of "no law" don't they understand?

The important thing isn't the symbol here.  True, symbols are important.  But if you are so upset with the policies of this country that you feel the only way you can express that burning dissent is to burn such an honored symbol as the flag, you're expressing a powerful political point.  And that is protected speech.

The Supreme Court agrees with me, too:  In Texas v. Johnson (491 U.S. 397), the Supremes struck down Texas's flag-desecration statute, holding that "If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable."  The response?  Congress passed a federal flag-desecration law, the Flag Protection Act of 1989.  The Supreme Court struck this one down the following year with the decision in United States v. Eichman (496 U.S. 310).  From that decision, with my emphasis:

the Government's interest cannot justify its infringement on First Amendment rights. This conclusion will not be reassessed in light of Congress' recent recognition of a purported "national consensus" favoring a prohibition on flag burning, since any suggestion that the Government's interest in suppressing speech becomes more weighty as popular opposition to that speech grows is foreign to the First Amendment. While flag desecration - like virulent ethnic and religious epithets, vulgar repudiations of the draft, and scurrilous caricatures - is deeply offensive to many, the Government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.

Do I like flag burning?  It's ultimately irrelevant, but no, I don't.  I think it's an overly (no-pun-intended) incendiary way to make a point, and I think that using it as an act of protest threatens to overshadow one's arguments.  People focus on the flag burning far more than they notice the points that the flag-burner is trying to make.

But, as I said in February:

But that's the wonderful thing about free speech.  The First Amendment unequivocally protects speech, no matter how offensive it is.  (After all, popular views don't need quite the same level of constitutional protection.)

Is someone offending you by what they say?  Talk back.  The cure to offensive speech is not censorship, it isn't litigation, and it's certainly not prosecution.  The only appropriate response is more speech.

We have to decide:  which is more sacred?  The flag, or freedom itself?

This is yet another good time to write your representatives or Senators.

Comments

[lexicon]

I buy your argument that the flag burning amendment is unnecessary, but I'm not sure you understand the reason for the amendment proposal. While the anti-desecration people saw that setting a fire is not speech, it is an act (like, say, burning a cross or even burning your hated rival's hair), the courts have said that the First Amendment protects such conduct because it is communicative conduct.

The proposed amendment would carve out an exception to the first amendment. Yes, the FA says "Congress shall make no law..." So how do we change that? Answer: like this; with a new amendment. The first amendment would be trumped by the later enacted exception.

Congress and the states can, by following the amendment procedures, change abolutely anything in the Constitution. Enough votes in Congress and sufficient numbers of ratifying states could literally make it constitutional to do anything -- ban abortion; mandate the practice of Islam for all adults; forbid the consumption of colored ice cream, whatever. And they can ban flag burning, too, as long as they follow the amendment rules.

I think it is stupid, but no one has ever accused Congress of being smart.

As for me, I'd rather have Congress let them burn the flags, but also pass a law that lets undeputized citizens beat the ass of any idiot who burns a flag in protest.

[Vidiot]

You are of course right that the Constitution can be amended for any purpose, and that once an amendment is fully ratified it becomes part of the supreme law of the land.

Part of what I was hoping to say was that anything that "carves out an exception" to the First Amendment is in principle a Bad Idea. It seems that we should be going in the direction of expanding liberties rather than denying them.