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Furl the Flag, Go to Work

June 05, 2004

Sen. Dick Durbin has the right idea. By March, the Illinois Democrat and his colleagues on the Senate's constitution, civil rights and property rights subcommittee were considering this session's fourth proposal to amend the Constitution. Enough, said Durbin, who declared that a better idea would be to bar constitutional amendments during an election year.

So far, Congress has taken up an amendment to give crime victims a constitutional right to do such things as sue for damages or request a new trial. That measure died as an amendment but passed the Senate as a statute and is now before the House.

Durbin's subcommittee is considering a proposed amendment to ensure that the federal government could continue to operate if a catastrophic event killed several members of the House of Representatives. Also still pending is a politically crass proposal to outlaw same-sex marriage. If it passes, this would be the first amendment to limit, rather than extend, the rights of Americans. But it was the umpteenth try in the last 20 years to win passage of a proposal to "prohibit the physical desecration of the flag" that prompted Durbin's outburst. His subcommittee passed that proposed amendment Wednesday. The current version, co-sponsored by Sens. Orrin G. Hatch (R-Utah) and Dianne Feinstein (D-Calif.), could go to the full Judiciary Committee next week. Adoption requires two-thirds approval of both houses and ratification by three-fourths of the states.

That necessarily high hurdle has stopped many previous flag-burning amendments, along with dozens of other kooky and pernicious proposals. This one deserves the same fate because, with its top-tier backers, it is primarily a way for leaders of both parties to strut their patriotic bona fides.

Just for starters, there are endless definitional questions, like what's a flag and what's desecration? What about a T-shirt that fashions the flag into a peace sign? Is it desecration to eat a Fourth of July cake decorated with strawberry stripes and blueberry stars?

The amendment strikes at the heart of the very rights, like free speech and expression, that the Constitution aims to protect. That's why the Supreme Court has consistently ruled that the 1st Amendment protects even the provocative and rare public act of burning a flag.

Fortunately, the Hatch-Feinstein amendment probably faces the same long odds as its similarly ill-conceived predecessors. All the more reason, then, for Congress to cut the election-year flag-waving and buckle down to the many serious problems before it.

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