I can’t believe we might have a flag desecration amendment to the Constitution soon. The proposed amendment wouldn’t directly outlaw desecration, but it would empower Congress to outlaw it. The House has already passed it by the necessary two-thirds, and the Senate, which will vote on it this week, apparently has 66 potential votes in favor. That’s one less than is required, so it could go either way. If one more senator decides to vote for it, or if Senator Rockefeller of West Virginia can’t make it to the Senate because of his recovery from back surgery, then the amendment will pass Congress and it will move on to the states. Apparently, all 50 states have passed resolutions endorsing such an amendment, so it’s very likely that 37 states would vote to ratify it, meaning that this stupid law would be enshrined in our constitution.

The practical consequences don’t seem particularly horrible – people don’t typically burn the American flag in protests anymore, and there are countless other ways to protest without burning a flag. And (I say with trepidation) it’s doubtful that Congress would impose a very large penalty for desecrating the flag. But screw the practical consequences. It’s the principle that matters.

From Wikipedia:

The Report of the 108th Congress, in proposing this amendment, stated:

“…’desecrate’ means deface, damage, or otherwise physically mistreat in a way that the actor knows will seriously offend one or more persons likely to observe or discover his action…”

This seems to suggest that the amendment will only apply to acts where the actor intends offense.

Could there be a clearer instance of creating a category of “thought crimes”?

(This is the same reason why I’m uneasy about hate-crimes legislation, by the way.)

As Justice Kennedy stated in his 1989 concurrence in Texas v. Johnson, which held flag burning protected under the First Amendment:

Our colleagues in dissent advance powerful arguments why respondent may be convicted for his expression, reminding us that among those who will be dismayed by our holding will be some who have had the singular honor of carrying the flag in battle. And I agree that the flag holds a lonely place of honor in an age when absolutes are distrusted and simple truths are burdened by unneeded apologetics.

With all respect to those views, I do not believe the Constitution gives us the right to rule as the dissenting Members of the Court urge, however painful this judgment is to announce. Though symbols often are what we ourselves make of them, the flag is constant in expressing beliefs Americans share, beliefs in law and peace and that freedom which sustains the human spirit. The case here today forces recognition of the costs to which those beliefs commit us. It is poignant but fundamental that the flag protects those who hold it in contempt.