Better to Protect the Constitution than the Flag

For more than a decade, numerous members of Congress have tried to amend the U.S. Constitution to except the activity of so-called flag desecration from the protections of the First Amendment.

The ACLU has fought back with coalitions of veterans, religious leaders and others who believe that such a constitutional amendment would undermine the very principles for which the American flag stands. Each year, we have managed to stop the Amendment by just one or two critical senate votes. Unfortunately, this year the flag desecration amendment has more support than ever and stands a strong chance of passing.

The amendment empowers Congress to prohibit burning or destruction of the flag and punish those who injure a flag in a manner that shows contempt for the U.S. Government. That means that elected officials, law enforcement agents, and the courts will be asked to enforce that prohibition by deciding which use of an important national symbol is acceptable and which is not.

Desecrate is a strong word. Something has to be sacred to be desecrated. Webster's Dictionary says that it means "to violate the sanctity of (something) by diverting from sacred purpose."

Our Constitution has what might be called a sacred purpose, to protect freedom of expression. The flag is a symbol, used very rarely in an act of political expression when it is burned or damaged.

Whether you think the flag is sacred or not, freedom of expression is more sacred. In a sense, passing this amendment against flag-burning would desecrate the Constitution which for 225 years has upheld what for many of us is a sacred value, freedom of expression. In its more than 200 years, the Constitution has been amended only 27 times - one time was acknowledged a mistake and repealed. The amendments have reaffirmed and expanded individual freedoms. This amendment for the first time would limit individual freedom, creating an exception to the right to free expression.

Americans from many political perspectives have opposed this Amendment, including countless war veterans. Senator Robert C. Byrd said on the Senate floor ". . . the flag is the symbol of all we hold near and dear. That flag is the symbol of our nation's history . . . our nation's values. We love that flag. But we must love the Constitution more. For the Constitution is not just a symbol, it is the thing itself!"

More than ten years ago, Supreme Court Justices Brennan and Scalia agreed on a tenet of freedom:

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.

United States v. Eichman, 1990.

Despite the words of wisdom uttered by opponents of the so-called flag desecration amendment over the years of battle, many people are buckling under in our current political climate with its persistent fear mongering and empty flag waving.

Unfortunately, a majority of political leaders on both sides of the aisle are supporting the amendment including New Jersey Democratic Congressmen Andrews, Pallone, Pascrell, Rothman, and Menendez.

As this article goes to press, we anticipate a vote on this Amendment in Congress in mid-to-late June. Please check the status of the Amendment at

We urge you to help stop this Amendment by contacting your elected representatives in Congress. Tell them not to desecrate the Constitution by voting for this measure.

-By Deborah Jacobs ACLU-NJ Executive Director

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