In the next few days, the Senate will vote on an amendment to the Constitution that would authorize Congress and the states to prohibit desecration of the American flag. As things stand now, the amendment is within one or two votes of passage. Below is a statement that I made before Senate staffers on the amendment at an event sponsored by the American Civil Liberties Union.
Some years ago, I had the honor of serving as the reporter for a blue-ribbon bipartisan committee, convened by The Constitution Project and chaired by two former members of Congress – Mickey Edwards, a Republican from Oklahoma, and Abner Mikva, a Democrat from Illinois. We were given the job of thinking in a serious way about when and how it was appropriate to amend the Constitution. We came up with a set of fairly detailed recommendations, but, I think that their essence can be summed up in one sentence: Amending the Constitution is a serious business and it ought to be treated seriously.
Amending the Constitution is not like passing a resolution praising this or deploring that. It’s not even like enacting a detailed legislative program – the prescription drug program, say, which can always be repealed if it doesn’t work. Amending the Constitution means changing the document that defines the circumstances under which we come together as a nation. Once we’ve done it, we are more or less stuck with it, and not only are we stuck with it – future generations who may have different ideas about how to run the country are stuck with it as well. In that sense, the amendment process can be deeply antidemocratic.
Unlike some state constitutions, the federal Constitution has been amended very rarely – only twenty seven times in over two hundred years. With only a very few exceptions, all of the amendments fall into three categories: The bill of rights, which was added as part of the deal leading to ratification and insures that the government did not invade basic individual rights like freedom of press, speech, and religion; the reconstruction amendments, which guaranteed the rights of the newly freed slaves, and a variety of amendments that have in different ways expanded and protected the right to vote. The free speech clause of the first amendment has never been amended, and, indeed, the Constitution has never been amended to take away any previously existing constitutional right. In this sense, the Flag Amendment is entirely unprecedented in American history.
Our committee thought that there was something to be learned from this experience, although, to be clear, we did not insist that all future amendments rigidly follow this template. The Constitution Project itself does not endorse or oppose particular amendments, and I therefore want to make clear as well that what I’m saying to some degree reflects the views of the Constitution Project, but to the extent that I talk about this particular amendment, I’m speaking only for myself.
What our committee ended up thinking was this: Before the Constitution is amended, at a minimum it must be shown that there is some very serious problem that demands our attention as a nation, that the problem cannot be solved without amending the Constitution, and that the proposed amendment would in fact solve the problem. In contrast, the Constitution should never be amended to make a purely symbolic point, to score political points or rally one’s base, or to set one group of Americans against another.
Members of Congress will have to decide for themselves whether the flag amendment satisfies these criteria and, indeed, whether they agree that they are the right criteria. Different people will come to different conclusions. At least, though all members of Congress need to think seriously about whether flag burning is, right now, a pressing national problem and whether, if it is, this amendment will solve it. With respect to the latter question, I have two worries in particular. First, it seems to me quite likely that amendment will produce more flag burning rather than less. Because flag burning is a transgressive act, a constitutional amendment is likely to produce an epidemic of it – sort of like what I discovered when I told my kids not to put peas in their nose. It never occurred to them to do this, but once I suggested it, they thought it might be fun to try.
Second the drafters of the amendment have been remarkably casual in failing to specify just how much of the free speech clause they mean to repeal. To take but one example, it’s not clear, whether the amendment would make constitutional a state statute that prohibited desecration of the flag as an attack on the Republican, but not on the Democratic party.
Perhaps more significantly, people deciding to vote for this amendment need to think carefully about whether they really want to break a two-hundred year tradition of not amending the Constitution so as to narrow previously declared constitutional rights and not amending the Constitution so as to make a political or symbolic point.
These are important questions because what Congress does today will set a precedent for how amendments are treated in the future. We could easily slip into the practice of casually amending the Constitution whenever there is short term political gain to be achieved by doing so. If we were to lose the discipline that has held for two centuries, the Constitution could quickly begin to look like some state constitutions – cluttered with trivial and detailed provisions or with embarrassing and meaningless declarations.
This leads, I think, to a great irony that I want to close with. The authors of the flag amendment want to preserve the flag as a symbol of national unity. But, in the end, as strongly as people feel about it, the flag is just a symbol, and no single person lighting a match to it can weaken the ties that bind us. Our real unity as a people is reflected not in a piece of cloth, but in a set of ideals. Those ideals, revolutionary at the time they were first articulated but also deeply conservative, boil down to this: we as Americans promise each other that when we are in power, we will not use all of that power against the folks who are not in power. We make this promise in part because some day we will not be in power, but also because using all of our power against our fellow citizens is no way to treat people with whom we share a country, a community and a heritage. We make this promise continually to each other, and it is especially important to renew it when our opponents seem deeply wrong and misguided, because, of course, we may seem that way to them. When you strip everything else away, this is the central vision behind all of the detailed provisions of our Constitution. Viewed in this way, it is the not flag burning that threatens our national unity. It is, instead, the flag burning amendment, because that amendment threatens to trivialize and degrade the Constitution and the basic promise we make to each other that it contains.