Old Glories in Tandem: Flag and Constitution
Parker, Richard
Old Glories in Tandem: Flag and Constitution By Richard Parker Forgotten the flag amendment? You shouldn't. The final Senate vote is imminent. Just a few uncommitted senators, Republicans and...
...Just as John Marshall promised long ago...
...They precede the Constitution...
...Thus Charles Fried-a former solicitor general who specializes in constitutional law-proclaims that the "thing itself," which the flag symbolizes, is the Constitution...
...The arguments against the amendment have, also, been remarkably formulaic...
...They underlie official institutions...
...But, after a few paragraphs, he was back suggesting that advocates of the amendment want to make it a crime to "imagine" burning the flag...
...Recall the famous photo of the Selma marchers carrying American flags...
...How convenient...
...The problem is that these prescriptions invite regulation so broad and vague that robust expression really might be suffocated...
...They will look to the recorded intent of the framers...
...And, as such, they threaten the pretensions of any elite...
...And they will harmonize them with older provisions...
...Its genius is its grand ambiguity on crucial matters...
...We're talking about a symbol here...
...In the mirror, establishment libertarians see only themselves and their imagined opposites, oppressive and benighted...
...To undo the court's flag-burning decisions, they say, would violate an inviolable rule that forbids regulating the content of political expression...
...Constitutional amendments, they-correctly-observe, may have unintended consequences...
...Just a few uncommitted senators, Republicans and Democrats, will decide whether it gets the needed two-thirds support...
...Here's how their argument goes...
...To claim it is, opponents of the amendment have to misrepresent it...
...They're about the nation, not the government...
...It has to do with freedom of speech...
...Race: Are we one nation...
...No less revealing is their comparison of the "offen-siveness" of flag desecration to that of expression that's hurtful to certain minority groups...
...The court has held that statements criticizing official conduct of a public official may be restricted, if they are known to be false and damage the reputation of the official...
...On the left, it's thought that "hate" speech, beyond face-to-face "fighting words," needs to be checked...
...There is, of course, no such "rule...
...On occasion, the court has read the First Amendment in light of that belief as well...
...The flag, they say, is a "mere" symbol...
...For, far from proving fragile, the Constitution has proved, over two centuries and radical shifts in its accepted meaning, to have an extraordinary tensile strength, enduring by adapting-through reinterpretation and through amendment-to circumstances, changing and unforeseen...
...Wide-open debate explodes and dies, after all, if there are absolutely no limits on what anyone says about anyone else...
...they proclaim...
...The amendment excites their fear not just because it dramatically reasserts the idea of the nation...
...Consider the supposed "rule" against restriction of speech content...
...Amid the frivolity, the absurdity of their argument may, again, go unnoticed...
...They speak "learnedly" of its "delicate balance...
...Nor should "inarticulate" expression be devalued...
...The idea must be this: Some very minimal parameters on the content even of political speech will not suppress and may actually be a condition of its continued robustness...
...To picture what is at stake here, recall the civil rights movement...
...Since June, when the House voted for the amendment, 312-120, their reaction has been relentless and-in day-today "reporting," editorials, and op-ed pieces-relentlessly one-sided...
...It's been eclipsed, of course, by other matters-the budget battle and, recently, race relations...
...Richard Parker, professor of law at Harvard University, is the author of Here, the People Rule: A Constitutional Populist Manifesto...
...Whether two or two hundred burnings of a flag damage the flag, as a symbol, depends on our response to the behavior...
...At one moment, they pose as traditionalist believers in the established system of "governance...
...These are foundational values...
...It addresses, also, the popular basis of robust, wide-open debate...
...Symbolically, it demoted the nation to the level of the government...
...They will read them sensibly, even narrowly...
...These soundbites, of course, are numbingly familiar...
...The question is: Will the next Martin Luther King have available to him or her a basic means of identification with the rest of us-an inclusive appeal to the bonds that, at least in aspiration, make us one...
...It's been reaffirmed ever since...
...In this case, the meaning said to be the "real" one is especially revealing...
...In this century, the people's grip on the reins has slackened...
...Surely, he saw the difference...
...Was the United States totalitarian until 1989...
...To confirm that we are, after all and above all, one nation...
...That's why they're so given to hyperbole...
...And the freedom the flag symbolizes, they go on, includes a freedom to burn it...
...It is not a set of rules and regulations...
...We are, by now, accustomed to being told, by smug elites, what are the "real" issues in an election and what is the "real" meaning of this or that common experience...
...Chief Justice Rehnquist did that in dissent in the flag-burning cases...
...Rehnquist did that, too...
...Almost invariably, they're full of disdain, belittling, insulting...
...Rising to a crescendo, they cry that we must never, ever "amend the First Amendment...
...Yet they belittle, even mock, the amendment on all these counts...
...Anyone who knows anything much about judges at the end of the twentieth century knows that they will be suspicious of new constitutional provisions...
...The editorials, the op-ed pieces, and the "reporting" have knocked off the same claims again and again...
...And, what's more, the very process of amending the Constitution stirs their ultimate nightmare, of ordinary people-"rude blue-collar types," in the words of one of my colleagues-remaking basic law...
...Libertarians-liberal and conservative- deplore the flag amendment as "mutilating" and even "desecrating" our most precious civil liberty...
...Take, first, the matter of what the flag symbolizes...
...Their very familiarity may numb us to their absurdity...
...Here, the absurdity swells wonderfully and turns back on itself...
...And it's because of these beliefs that many of us support the flag amendment...
...One example: In the Washington Post, Nat Hentoff equated prohibiting physical desecration of the flag with something very different-a mandatory flag salute, long ago held unconstitutional as a "compulsory rite," coercing a declaration of belief...
...I, for one, am a civil libertarian...
...And, they insist, it would set down a subversive counter-rule, which would authorize censorship, compel affirmation of political orthodoxy, and push toward totalitarianism...
...And, as a gauge of populist democracy, few current controversies are more telling than the proposed amendment authorizing the people's representatives, if they choose, to "prohibit the physical desecration of the flag of the United States...
...How could that be...
...Not just one-sided, but haughty, nasty, and often hysterical...
...From the flagrancy of each, there spring-like flowers in a landfill-populist arguments in favor of the amendment...
...What the framers called for in Article V is a democratic process through which the people-the nation-may pull the reins on the government, reins which the framers meant, always, to be in the hands of the sovereign people...
...Probably, the argument that opponents make most often is this last one: We must not "tinker" or "fiddle" or "fool with" the Constitution, they say...
...From this root disdain for democracy, they spin out a cluster of related routine arguments...
...Such verbs are rarely used to describe judicial interpretations or lawyers' interpretations or academic interpretations of the Constitution...
...Suspecting this argument may not be convincing, they move to another where they can have some fun (which is to say, where they can give their disdain a humorous free rein...
...They undergird law...
...Or, one might as well say, it turned the government, symbolically, against the nation...
...They have to do with Americans as a people...
...They can do so confident that no one will question them in the mainstream media...
...They predict, on the other hand, that any attempt to restrict this freedom would be ineffective (hence costly) since the desire to exercise it is so strong and would only get stronger in the face of legal prohibition...
...The Constitution, they say, is too "fragile" to be touched (at least by callused hands...
...What it "really" stands for, they tell us, is a national commitment to certain official institutions, certain liberties under law...
...What's contested, at the outset, is whether protection of this symbol should be taken seriously-along with subsidiary questions of whether protection is needed and whether it would be effective...
...Only totalitarian governments, they claim, protect their flags...
...Since 1989, when a 5-4 majority on the Supreme Court first invalidated long taken-for-granted laws against flag desecration, most polls have shown decisive support for a flag amendment, often near 80 percent...
...In fact, I think it ought to be more robust and wide open than it is now...
...They insist on reducing everything-including the unique symbol of our aspiration to national unity-to competing interests of diverse groups...
...Think of obscenity...
...It simply affirms that there is some commitment to others, beyond mere obedience to the formal rule of law, that should be respected as a basis of a flourishing freedom of speech...
...Here we have many members of our self-imagined governing class identifying the flag with official concepts and processes for whose definition and operation they are in the habit of claiming primary, almost proprietary, responsibility...
...Don't forget why the amendment was proposed in the first place...
...When the court, six years ago, overturned the laws against flag desecration, it declared permissible what had long been understood to be impermissible...
...They insist on boiling down its meaning...
...So, we come back to the flag as a "mere" symbol...
...Let's review the three main clusters of arguments...
...Playing their own game, I'd say what's "really" going on is this: Seeing themselves as responsible for "enlightened" government, they fear the idea of the nation, the prospect of popular sovereignty, the empowerment of ordinary people...
...They compare it, however, to displays of Nazi or Klan regalia...
...But, be that as it may, the thing to remember is that-views of the current legal establishment to the contrary notwithstanding- the Constitution is, above all, a symbolic document...
...There have been rather few flag burnings in the last several years...
...Do these people have no faith at all in our court system...
...In the center, by contrast, there's support for much more minimal restraint-on intentional, physical trashing of the unique symbol of the bonds that make wide-open debate possible...
...Hence, unruly expressive "conduct" mustn't be sharply segregated from more genteel "speech...
...The Constitution, they cry, is perfect as is...
...For ours is a nation defined not by any shared ethnicity, but by a political practice, a practice of popular sovereignty based in political equality...
...This at a moment when millions are convinced that the government has been doing just that for some time in all sorts of ways...
...This was made clear by the Warren court-in an opinion by Justice Brennan, the very opinion that celebrated freedom of speech as "robust and wide-open...
...The court, on occasion, has interpreted the First Amendment in light of that belief...
...For populists, public expression by all sorts of people-not just the "thoughtful" ones-is vital to popular sovereignty...
...Nothing could be more revealing-of what motivates the opponents and what should spur on advocates of the flag amendment- than this choice of words...
...Isn't it time-now-to take hold...
...Thus, in an era when our governing elites depreciate the ideal of popular sovereignty, the flag amendment simply seeks to reaffirm the exhortation of the framers...
...Notice the verbs they use to describe the process of constitutional amendment...
...Since shame won't be forthcoming, here's another question...
...Quite the opposite...
...And that leads to the third cluster of arguments...
...It's no surprise, then, that opponents of the amendment go on, with stunning circularity, to announce-as if we must, of course, take their word for it-that what the flag stands for is the freedom to burn it...
...As such, it has helped summon astonishing political energy and creativity...
...It seems to come easily to "thoughtful" people who haven't thought much about the matter...
...The flag is the unique symbol of our aspiration to national unity: That much is accepted by everyone as a starting point...
...Seeing themselves as responsible for good government- nowadays, they prefer to say "governance"-of the people, they take for granted that the problem is one of behavior control...
...These, of course, involve aspirational bonds, not divisions, among Americans...
...Even Colin Powell said this...
...Even more, they're about a people- "We, the People"-that is supposed to govern itself...
...To establish, again, the constitutional premise of self-rule...
...E]ven a small lapse of personal hygiene," she whooped, "may constitute a punishable offense...
...Is it too much to ask Hentoff and the others a version of the question asked by Joseph Welch: Have you no shame...
...Thus, what blinds them to the populist position is a compulsion to exaggerate both the amendment's "contradiction" of current free speech principle and its likely effects...
...Such a view doesn't show up on the radar screen of the establishment...
...Turn now to the second cluster of arguments about the amendment...
...What they go on to claim-incorrectly-is that amendments will have specific, outrageous sorts of consequences, not intended by their drafters...
...What is it they are afraid of...
...For if the Constitution is perfect, part of its perfection must be Article V, which provides for its amendment...
...And its boldest symbolic stroke was its first three words...
...Of course, the opponents say they "revere" the flag...
...But these "great issues" present, at bottom, the same question the flag amendment presents...
...Being in large part symbolic, it is hortatory...
...Taken together, they establish this issue as an index of the populist challenge to both establishment liberalism and establishment conservatism...
...When opponents of the amendment argue that protection of the flag is not needed and would be ineffective anyway, they reveal their bias yet again...
...On the right, it's thought that "uncivil" and "unreasoned" speech content needs to be checked...
...Both issues test populist democracy...
...Writing in Time, Barbara Ehrenreich focused-as most do, interestingly-on underwear...
...So, they talk of (and flourish) all sorts of items with a flag logo on them: handkerchiefs, bathing suits, underwear, you name it...
...Nor is it a blueprint...
...Enough to get a grip on the government...
...This leaves it to individuals, in a thousand other ways, to criticize the government and even the aspiration to national unity, if they want...
...The reason is that its screen is a mirror...
...As people who deplore those who "play on fear," they can't seem to help doing it...
...There's no such "rule" even for political speech...
...It is not "a rough draft," intones Representative Pat Schroeder...
...It surprises them that supporters of the flag amendment agree with most of the values and principles they invoke...
...The budget: Is there life left in popular sovereignty...
...And, so, the opponents are reduced to their last argument...
...Hence, the freedom to offend such groups, they claim, dictates a freedom to burn the flag, which offends other groups...
...These will count as flags...
...The argument denigrating it on this ground sits oddly in our era of identity politics...
...It officially demoted the unique symbol of our popular sovereignty to the level of myriad competing values and interests...
...The offensiveness of these displays to minority groups, they say, is no less-in fact, they suggest, it is greater...
...They grant that flag desecration is "offensive...
...You can't help wondering why they are trying to obscure other values symbolized by the flag, values on a different, deeper dimension...
...On the right, on the left, and in the center, nowadays, it's widely agreed that these parameters have broken down and must be restored...
...Hence, what counts as a "flag" and as "physical desecration" will be influenced (possibly determined) by the statute Congress enacts under the amendment and, in any event, will be tightly limited by common sense and the First Amendment...
...At the same time, "thoughtful" commentators, unelected "opinion leaders," and, especially, the mainstream media have overwhelmingly opposed it...
...This symbolic challenge by the court, in the name of the Constitution, is properly answered in the Constitution, by exercising the sovereign right of the people-symbolized by the flag-to amend it...
...This is no subversion of free speech...
...I believe that, in a democracy, freedom of speech must be "robust and wide open...
...Then, they imagine that judges, interpreting new- and very minimal-constitutional language, will go bonkers...
...Recall not only its invocation of national ideals, but also its evocation of nationhood...
...They conclude with a one-two punch: This freedom, they say, is pretty much without cost since the tendency to exercise it is, at the moment, weak...
...But the number of flag burnings last year or next year is not what should most concern us...
Vol. 1 • November 1995 • No. 9
