Thursday, June 23, 2005

Capture the Flag

By way of the Republican Right's own supposed poster boy Justice Scalia and his learned friends at the United States Supreme Court, a friendly reminder to the 286 members of the United States House of Representatives who--wearing their hearts on their sleeves and their heads in a hole--yesterday approved a constitutional amendment that would give Congress the power to ban desecration of the American flag:

If there is a bedrock principle underlying the First Amendment, it is that the Government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable. Punishing desecration of the flag dilutes the very freedom that makes this emblem so revered, and worth revering.

U.S. v. Eichman, 496 U.S. 310, 319 (1990).

The way to preserve the flag's special role is not to punish those who feel differently about these matters. It is to persuade them that they are wrong. To courageous, self-reliant men, with confidence in the power of free and fearless reasoning applied through the processes of popular government, no danger flowing from speech can be deemed clear and present, unless the incidence of the evil apprehended is so imminent that it may befall before there is opportunity for full discussion. If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence.

And, precisely because it is our flag that is involved, one's response to the flag burner may exploit the uniquely persuasive power of the flag itself. We can imagine no more appropriate response to burning a flag than waving one's own, no better way to counter a flag burner's message than by saluting the flag that burns, no surer means of preserving the dignity even of the flag that burned than by--as one witness here did--according its remains a respectful burial. We do not consecrate the flag by punishing its desecration, for in doing so we dilute the freedom that this cherished emblem represents.

Texas v. Johnson, 491 U.S. 397, 419 (1989).

It never ceases to amaze me how easily the loftiest and most important constitutional principles in this country are sacrificied by the very people we elect to uphold them for the greater good.

Sadly, as George Will once said, "American politics as you know . . . is very often a matter of capture the flag."

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