Flag Desecration Amendment Within One Vote of Passing
June 26, 2006
If the one-vote margin falls on the side of passage, the Senate will set in motion a dramatic and lasting change in the way we view and treat political dissent. If the flag-desecration amendment is ratified, for the first time in this nation’s history we will have materially changed the Bill of Rights, which affirms and secures the fundamental rights of all Americans against the power and reach of government.More specifically, speech protected by the First Amendment and affirmed by half a dozen Supreme Court decisions since 1907 stands to be criminalized.
[T]here will be an entire class of attention seekers who will be all too willing to provide every possible permutation of law-straddling hypotheticals imaginable. In the process, some will likely be punished and others exonerated, but all will have massively increased the audience for their message because of the notoriety that arises from challenging a controversial new law in some clever or sensational way. And, trust me, college students, with their flair for insubordination (a quality that we sometimes find to their credit), will be leading the way. In the meantime, the debate will only become more nuanced, with existing divisions growing deeper as some convictions fail and others possibly send people to jail.
The crucial objection to a flag-burning amendment, an amendment of the First Amendment, is, in fact, conservative and Burkean: the Bill of Rights stands as a foundational protection of the rights of a free people, held to be beyond the reach of government. Amending the original Bill of Rights breaks the historical chain of which our liberty is the result and opens a Pandora’s Box of governmental and even popular interference, by whatever means, in the liberties held by the Founders and their descendants to be essential to the American experience of limited government. The belief that the Bill of Rights is up for grabs would imperil the sense of inalienable rights vital to what America is and stands for. A free people should have a deep understanding of this: Don’t amend the Bill of Rights!