Hearings on H.J. Resolution 54: Proposing an Amendment to the Constitution of the United States Authorizing Congress to Prohibit the Physical Desecration of the Flag of the United States

Mr. Chairman and Members of the Committee, I appreciate this invitation to appear before the Congress to testify against the proposal to amend the Constitution to give Congress the power to prohibit the physical desecration of the flag of the United States.

Although I am employed by the Brookings Institution, I am speaking for myself and, to the best of my knowledge, I have not received any federal grant, contract, or subcontract in the past two fiscal years.

As a 23-year navy and Vietnam veteran, as a former official in the Reagan Defense Department, as a former professor at the Navy War College and the Coast Guard Academy, and as a second generation American, I revere the flag and that “for which it stands.” As much as any citizen, I still get a lump in my throat when I see the flag raised or lowered. Nonetheless, I am unalterably opposed to H.J. Res. 54. My opposition is based upon the following considerations.

First, during my years of military and civilian service during the cold war, I believed I was working to uphold democracy against the totalitarianism of Soviet Communism expansionism. I did not believe then, nor do I believe now, that I was defending just a piece of geography, but a way of life. If this amendment becomes a part of our Constitution, this way of life will be diminished. America will be less free and more like the former Soviet Union and present-day China.

Second, this proposed amendment is bad public policy. During our 205 years of history, the Bill of Rights has never been restricted by a constitutional amendment. If ratified by the Congress and the states, this amendment would be the first in our history to cut back on the First Amendment’s guarantee of that freedom of expression that is so necessary to ensure the vigorous debate and dissent that is necessary to prevent the abuse of power in our democracy. This amendment could set a dangerous precedent for limiting our other fundamental freedoms. Would limits on freedom of the press be next?

Third, this amendment is poorly drafted. It is phrased in such broad and vague language that it can and will have unintended consequences. These could include censorship of images of the flag in works of art, advertising, or commerce. Moreover, the amendment would permit indictments and prosecutions not only of protestors, but individuals who purchase these works of art, or who use advertisements that desecrate the flag. This could happen even though these consumers intend no disrespect.

Fourth, the people, the Supreme Court, and previous Congresses do not support the basis for this amendment. In a 1995 poll, by 52 percent to 38 percent, Americans reject such an amendment when they discover that it would be the first amendment in our history to restrict our First Amendment freedoms. The highest court in the land has twice ruled that destruction of the flag for political purposes, although highly offensive to almost all Americans, is undeniably a political statement and a political expression. The Court has held that it is a bedrock principle underlying the First Amendment, that the government may not prohibit the expression of an idea simply because society finds the idea offensive and disagreeable. Finally, twice in this decade the Congress has rejected this amendment.

Fifth, the amendment is unnecessary to punish most incidences of flag burning or mutilations. Desecrating a flag belonging to the government or a non-consenting individual is punishable under existing statutes. Moreover, flag desecration performed for the purpose of breaching the peace or with knowledge that it will produce an immediate danger is already punishable under the First Amendment.

Finally, flag burning is exceedingly rare in this country. Since the Supreme Court’s 1990 flag decision, there have been less than 35 burning incidents.

In conclusion, I think that the motives of the sponsors and supporters of this amendment are beyond reproach. Indeed I understand why they and so many Americans have such a strong reaction to the idea of flag desecration. But, for the reasons I mentioned above, I believe they are wrong.