Q&A Friday 18: The Flag Burning Amendment

24 Jun, 2005 by John Hawkins

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Question: What are your views on the Flag Burning Amendment that was passed again today by the house? Do you think it will pass the senate? And if it passes the senate do you think it will be ratified by the states? — nolan1286

I strongly support the flag burning Amendment, but think it should be unnecessary because the states should be able to ban flag burning without violating the First Amendment. As Judge Bork argued in “Slouching Towards Gomorrah:”

“Nor is it unusual for the First Amendment to ban particular modes of expression. One supposes (though one is no longer quite sure) that government could still prohibit the telecasting of political views in obscenities or the expression of them by loudspeaker at three in the morning in a residential neighborhood.” — P.100

Mark Levin over at The Corner pointed out another precedent that shows that banning the desecration of the flag need not be considered a First Amendment violation:

“In 2003, in Virginia v. Black, the Supreme Court upheld by 5 to 4 a Virginia law banning cross-burning on public or private property. The Court reached this result by contending that such expression is a form of terror and intimidation. Just as cross-burning is a particularly heinous form of speech, to many flag-burning is as well, but for different reasons. The flag is a uniquely American symbol, which is why it flies over government buildings, is carried into war, and drapes the coffins of those soldiers who died defending us. Sometimes these debates about priorities and so forth are too sterile. My grandfather, a Marine who fought at Iwo Jima and Guam, would have considered this amendment a priority. He saw fellow Marines lose their lives raising our flag over conquered territory.”

The flag is a unique symbol of America and desecrating it in public is in my opinion a particularly provocative and offensive act. That’s why 48 states had flag-protection laws before the Supreme Court casually tossed aside the decisions of all those state legislatures in 1989.

Unfortunately, I expect that the Amendment will come up short again in the Senate because the majority of the Democrats will fight it all the way. All I can say is that I hope Republicans get a chance to throw those “nay” votes back in their faces during the 2006 election cycle.