Thank you for allowing me to share my opposition to S.J.Res.12, the so-called flag desecration constitutional amendment. I am a veteran who proudly served my country in the U.S. Army from 1951 to 1953 and in the Army reserves from 1953 to 1962. In 1983, I was elected to serve as National Commander of the American Legion, a post I was honored to hold for a one-year term through 1984.
An amendment is a radical approach to a near nonexistent dilemma. Our flag is a beautiful and inspiring banner representing freedom and justice for all Americans. It is freely displayed and cannot be protected by government, but only by us, the people. Each citizen can gaze upon it, and it can mean what our heartfelt patriotic beliefs tell us, individually. When the flag is not accorded proper consideration under the flag code, it rightly upsets patriotic Americans. An amendment, however, does not protect the banner from misuse as claimed by proponents. Rather, the amendment authorizes Congress to enact laws dictating the punishment of citizens interpreted to have committed an act of physical desecration upon a banner proscribed to be the flag. In truth, the flag has rarely been abused.
Federally enacted laws will require Federal Court action for violations. Charges and court actions will necessarily include a finite definition of physical desecration and, yes, a finite definition of the flag itself raising a multitude of legal questions. Will the banner need to meet size requirements? Will the manner in which it is flown be important? Will the small flags on a tooth pick utilized for patriotic events on cakes still be a flag? Must the banner be permanently disfigured in order to be considered to have been desecrated? Will commercial advertising and flag display for commercial purpose be affected? Will artists’ displays be scrutinized for ‘propriety’? What is physical desecration? Will citizens still own their flag? These questions may appear trivial; however, if a citizen is charged, justice must be rendered, and finite definitions through unending litigation of the broad ranging amendment will be required from the Courts.
A federal definition of flag desecration is unwise and unnecessary when flag burners can be prosecuted under existing criminal law. The Supreme Court case of Johnson vs. Texas came to the forefront when the Texas District Attorney brought charges under a Texas statute forbidding acts of desecration of the flag. The flag that Johnson burned was the property of a bank from which the banner had been removed. The District Attorney and all citizens would have been served if charges of theft, destruction of stolen property and vandalism had been filed. Johnson would have been locally convicted and punished for the act. Amendment advocates imply that the court decision permits detractors to mutilate or burn the flag to exercise their freedom of expression. That is false, insofar as the Supreme Court did not find that flag burners could not be prosecuted for theft, vandalism, or even burning without public permit. Indeed, flag burners can and often are prosecuted for such acts.
This is born out in the example of a 1997 case in Appleton, Wisconsin, an example of local justice under existing law. In that case, the perpetrator was charged with theft and vandalism. Those charges resulted in a nine-month jail term, cost of restitution and 350 hours of community service. In addition, the young man recognized the public outrage and issued an apology in the local news media expressing regret for his misdeed. Justice was rendered by the local authorities without involving the Federal courts.
I am further concerned that in attempting to amend the Constitution in the name of protecting a symbol, the flag, we follow in the path of numerous repressive regimes around the world. In Eastern Europe following WWII, the Soviet Union placed the “hammer and sickle” in the flags of surrogate nations and enforced its protection by Government edict. Fifty years later we applauded the patriotic heroes that rebelled as they slashed and burned those flags. Adolph Hitler’s popularity soared in prewar Germany as he flaunted their colorful banner with the prominent swastika and ordered its respect by German and captured Nations’ citizenry. Today, the Nations of Cuba, China, Iran, and Libya typify tyrannical Governments that protect their country’s banner but not freedoms for their people.
Polling results are frequently cited in support of the amendment. I am suspicious of such polls, given that in my experience most people that I know oppose flag burning but also oppose tampering with the Constitution. In fact, a recent poll conducted by the independent First Amendment Center indicates that a solid majority of Americans – over 60% -- say that the U.S. Constitution “should not be amended to prohibit burning or desecrating the American flag.” However, even if a majority of Americans supported the amendment, the will of the majority cannot be used as a valid argument to undermine the rights of a minority. Supreme Court Justice Scalia correctly states “A Bill of Rights that means only what the majority wants it to mean is no Bill of Rights at all”. The Preamble of The American Legion is recited by Legionnaires at all Post, County, District, Department and National meetings. Two phrases in that renowned document are “to combat the autocracy of both the classes and the masses” and “to make right themaster of might”. It is doubtful the Legion founders that scribed those phrases would be supporting the proposed amendment.
Finally, as a Christian, I am concerned that an amendment “prohibiting desecration of the flag” will create the banner as a new deity for our citizens. The dictionary defines desecration as “an act to divest of sacred or hallowed character or office”. I presume “physical desecration” is the performance of an act of divestiture upon the icon. This Nation, however, was not founded on devotion to symbolic idols. It was founded on principles, beliefs and ideals, which are expressed in the Constitution and its Bill of Rights ratified in 1789. It appears that after more than 200 successful and glorious years we are in danger of knuckling under the pressure of modern lobbying techniques and pursuing pseudo patriotism, i.e., revering the icon and not the creed for which it stands. The situation is reminiscent of when Moses was upon the mountain and those awaiting his return became impatient and reverted to the idolization of the golden calf. American veterans that have protected our banner in battle have not fought to protect a golden calf. Instead, they carried the banner forward with reverence for what the flag stands for, our beliefs and freedom for all. Therein, lies the beauty of our flag.
A patriot cannot be created by legislation, true patriotism must be nurtured in the family and educational process. It must come from the heartfelt emotion of righteous beliefs, credos and tenets. Our beautiful flag represents those beliefs, credos and tenets that are outlined by the Constitution of the United States of America. Will an amendment accomplish a purpose or will it bring further confusion and discontentment diminishing the beauty the flag has today as it hangs free from its standard, revered by we, the people, not ordered by Government edict? Since Betsy Ross stitched the first flag, it has been the people’s flag. Our respect for it does not need Government intervention.
Teaching in the home and in our schools of the principles embodied by our Constitution and Bill of Rights requires responsibility and sacrifice. Government cannot and should not attempt to do for us, the people, what we, the people, can do for ourselves. We must not delegate to law enforcement our responsibility of citizenship lest we endanger precious freedoms. Respect for our beautiful flag can only come from the hearts of the people.
I urge you to defend the Constitution by voting to oppose S.J. Res. 12.