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Resurrection of the Flag Desecration Amendment

May 2, 1999

by Edward Tabash

Unlike supposed deities, proposed legislation that has failed before in Congress, can be reintroduced in a new Congress. Unfortunately, we now have a verifiable case of such resurrection. The Congress that was in power during 1997 and 1998 failed to pass by a two thirds majority of both Houses an amendment to the Constitution that would have substantially weakened the First Amendment by allowing branches of government to punish the physical desecration of one's personally owned replica of the American flag.

Recently, the same measure, now introduced into this Congress, was approved by a margin of 11-7 in the Senate Judiciary Committee. It now moves on to the full U.S. Senate. If this measure obtains a two thirds vote of both Houses of Congress, which is now a distinct possiblity, it will be instantaneously ratified by three fourths of the state legislatures. It will then become part of the Constitution. This will be the first time in more than 209 years that the First Amendment will be formally weakened. It is already a crime to destroy someone else's flag or to physically damage a flag on government property. This measure would criminalize what you do to your personally owned flag. The implications for freethinkers are ominous. The First Amendment has always stood for the proposition that regardless of how offensive a mode of expression is, the degree of offensiveness cannot be a basis for banning that mode of expression. The only time that prohibitory laws can come into effect is if the mode of expression involves destroying the property of another or physically harming another person. If I go into a bookstore and buy my own copy of the bible, then, at a rally protesting religious dogma, set that copy on fire or tear it up, the millions of bibles in the homes of bible believing Americans remain unharmed. All I have done is to destroy my own copy of the bible. Thus, if someone buys their own American flag and burns it or otherwise physically damages it, in order to protest somethng, the flags owned by millions of other Americans and the flags flying on government property remain unharmed.

This proposed amendment is particularly egregious because, in addition to gutting a core principle of First Amendment jurisprudence on the free speech, it also threatens the chruch/state separation clauses of the First Amendment. Since this amendment seeks to prohibit desecration, it is essentially a blashpemy law. Desecration is a religious term that applies only when something is deemed sacred. This amendment thus violates the fundamental tenets of a secular society by formally transforming a secular symbol into something sacred.

Please contact your two U.S. Senators and let them know that you are voting constituents in their repsective state and that you urge them to vote against this butchery of the First Amendment. Also, if your senators call themselves "conservative," remind them that true conservatism seeks to limit the degree to which government can control the private actions of people. For government to now step in and tell us what we can do with our own personally owned property, that is, our own flags, violates the conservative principle of limited government.

Once we start amending the First Amendment to deny protection for various forms of unpopular expression, we start down a slippery slope that will soon reduce the First Amendment to nothing more than an umbrella that is removed the moment it begins to rain. As freethinkers and non comformists to the prevailing theistic sentiments that permeate our culture, we have a great stake in perserving all the protections of the First Amendment as intact as possible.

Related Articles

  • "American Hero John Glenn Testifies Against Flag Amendment!" (1999) (Off Site)
    The statement of John Glenn (former United States Senator from Ohio) before the Senate Judiciary Committee.

  • "Is the American flag a secular symbol or a sacred icon?" (1998) [ 11K ] by Edward Tabash
    What people don't realize is that it is already illegal to physically damage someone else's flag or the flag on some government property. Vandalism laws already prohibit damaging someone else's property. Thus, this amendment would remove constitutional protection for what you do with your own individually owned American flag.

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