Sen. Orrin Hatch, R-Utah, has often professed his devotion to the Constitution. Yet he is ardently supporting a proposed amendment to the Constitution that says: "The Congress and the states shall have power to prohibit the physical desecration of the flag of the United States." To add to the confusion, each state will have its own definition of "desecration."
The people want the amendment, Hatch says, and they must be served. In the House, Henry Hyde, R-Ill., _ who used to be a courageous protector of the First Amendment as it is _ also wants to punish desecrators of the flag because it stands "for national unity." (The flag amendment has passed his committee.)
With the Fourth of July near, I hope a true constitutionalist like Rep. Melvin Watt, D-N.C., inserts in the Congressional Record Justice Robert Jackson's decision in the 1943 Supreme Court case, West Virginia State Board of Education vs. Barnette.
In protecting the First Amendment rights of Jehovah's Witness children who had been expelled from public school for refusing to salute the flag, Jackson wrote the most lucid and powerful definition of Americanism in our history.
Hatch, Hyde and their colleagues _ who desecrate the First Amendment by patching onto it a bristling icon _ have forgotten that, as Jackson emphasized, "the very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities" _ and elections.
Said Jackson, "If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox politics, nationalism, religion, or other matters of opinion _ or force citizens to confess by word or act their faith therein." As for the flag standing for national unity, that goal, Jackson emphasized, is "an end which officials may foster by persuasion and example." But under our Constitution national unity cannot be compelled by the state because "it is the purpose of the First Amendment to reserve (such beliefs) from all official control."
Effectively gathering support around the country for compelling Americans' devotion to the flag has been the American Legion. Its national commander, William Detweiler, is so committed to the enshrinement of the flag that he says: "Burning the flag . . . is a problem even if no one ever burns another American flag." Even imagining it should be a crime?
After the Supreme Court ruled in 1989 (Texas vs. Johnson) that burning the American flag is "the expression of an idea" and therefore protected speech under the First Amendment, there was a concerted attempt to overrule the court through a constitutional amendment like the one looming before us.
At that time, there appeared in the Washington Post a report from the front, as it were, by Ivan Warner, a Washington attorney. He was imprisoned by the North Vietnamese from 1967 to 1973. Tortured, suffering from malnutrition, he spent 13 months in solitary confinement. When at last he was released, he looked up and saw the American flag. "As tears filled my eyes, I saluted it. I never loved my country more than at that moment."
While in a Communist prison, "where I looked into the pit of hell," Warner, during an interrogation, "was shown a photograph of some Americans protesting the war by burning an American flag."
The Vietnamese officer said, "There. People in your country protest against your cause. That proves you are wrong."
Warner answered, "No. That proves I am right. In my country we are not afraid of freedom, even if it means that people disagree with us." Warner added: "The officer was on his feet in an instant, his face purple with rage. . . . I was astonished to see pain, confounded by fear, in his eyes."
"Spread freedom," Ivan Warner wrote. "Don't be afraid of freedom."
But Hatch, Hyde and Newt Gingrich (another thoughtless supporter of the flag desecration amendment) just do not understand that the flag stands for liberty _ not fear of liberty.
Still it is not surprising that those who want to diminish the flag are also crudely eviscerating the Great Writ of habeas corpus and the equally fundamental protections of the Fourth Amendment.
Meanwhile, 49 state legislatures have expressed support for a flag-desecration amendment. Vermont is the only resister. Happy Fourth of July!
Nat Hentoff is a nationally renowned authority on the First Amendment and the rest of the Bill of Rights.
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