OLD GLORY; NEW PROBLEM

One of the more interesting people who spoke at the Harvard Law School last week end was Professor Richard Parker.

Bit of a rebel, he. In the midst of a solid phalanx of progressive, nay liberal, colleagues, this fellow has the kahoonas to favor outlawing desecration of the American Flag.

What? A Harvard Professor who doesn’t think burning Old Glory as a political protest ought to be protected by the First Amendment?

Indeed. He may well have had something to do with the drafting of the simple, one line constitutional amendment which gets introduced in Congress every couple of years.

The flag fuss began back in 1968 when Viet Nam War protesters started burning flags in public to express their opposition to the war. Congress passed a law against it. So did 48 of the 50 states. In 1989, by a 5-4 vote in Texas v Johnson the Supreme Court declared those laws unconstitutional.

Undaunted, Congress passed another Flag Protection Act. It, too, was found to be in violation of the First Amendment by another 5-4 vote in the high court.

Ever since then, Congress has been flirting with a constitutional amendment to authorize flag desecration laws. To send a constitutional amendment out to the states for ratification takes a two thirds vote in both houses of Congress. The House of Representatives regularly approves the amendment by two thirds.

The Senate never does. Came within one vote in 2006.

Here’s what the proposal says:

The Congress shall have power to prohibit the physical desecration of the flag of the United States.

Sounds pretty simple. Over seventy-five percent of the American people are in favor of it. And if it gets into the constitution, the Supreme Court can’t touch it. After all, the constitution can’t be unconstitutional, can it?

We’ve had flag laws in this country for years. The size and shape. The colors. How many stars and how many stripes. How it should be flown and when. Even how to fold it.

Laws prohibiting flag desecration bump up against the First Amendment’s protection of free speech only when it is done to send a message. If I burn the flag, alone in the alley behind my garage, because I’m ticked off at the post office, I’m not speaking to anybody.

But don’t do it in front of a crowd. A guy named William Thomas tried it in Dodger Stadium on April 25, 1976 and ended up making Chicago Cubs outfielder, Rick Monday, who ran up and saved the flag, an American icon.

The debate over flag desecration is classic constitutional science. The Founders got into it in 1787. Article 3 of Section 3 of the U.S. Constitution says:

Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.

I have no doubt that burning the stars and stripes or flying a Nazi flag would have been considered giving aid and comfort to our enemies in 1943.

But what of 2011, when our enemies are an amorphous band of terrorists, some foreign, some domestic? Isn’t there a difference between politics and war? Between passionate debate and inciting to riot?

Constitutions are the ultimate form of popular law making. That’s why the constitution begins with the words, “We The People…”

Like Professor Parker, I am a populist. He says that the great division in America is not between the rich and poor or the right and the left, but between the elite and the regular folks.

I’m with him. I have faith in the intuitive wisdom of the great unwashed.

And I am a little leery of letting one vote in the United States Senate or one vote in the Supreme Court override three quarters of the American people.