Prometheus 6

Quote of note:

Justice Antonin Scalia, who voted to strike down the statutory ban on flag burning some years ago, has described in speeches how doing so irritated him. He would have loved to put the defendant -- a "bearded, scruffy, sandal-wearing guy burning the American flag" -- in jail, he said. It made him "furious" not to be able to. But "I was handcuffed -- I couldn't help it, that's my understanding of the First Amendment. I can't do the nasty things I'd like to do."

TODAY IS FLAG DAY, and this is an election year. It is no coincidence that the Senate Judiciary Committee plans this week to report out a constitutional amendment giving Congress the power to prohibit the "physical desecration" of the American flag. The flag-burning amendment is one of those regular rituals of legislative troublemaking that would be beneath comment save for the chance that it might actually muster the votes necessary to get sent to the states for ratification.…Foes should have the votes to kill it again this year, but one never knows. In the long run, the threat that it will become a real blight on America's founding charter -- rather than merely on the honor of its legislators -- is a real one.

The problem the amendment purports to address doesn't exist: Flag burning is rare. The surest consequence of passing the amendment, in fact, would be to make it more common. Flag burning could become a particularly exciting form of protest were it an affront not merely to social norms and decency but to the constitutional order itself. But even if flag burning were rampant already, writing censorship of expression into the Constitution would still be offensive.