The Supreme Court got it wrong in 1989 and 1990, when it struck down first a state law and then a federal law banning flag-burning. The First Amendment protects freedom of speech, not freedom of “expression”; and burning a flag is no more speech than nude dancing, public urination, or a barroom brawl — although each of these things may express people’s thoughts and feelings.
A constitutional amendment would not be our first choice for a response to the Court’s mistake. A statute to remove the issue from the federal courts, and thus restore state autonomy on the issue, would correct the error without requiring the Constitution to take notice of it. But the arguments against an amendment are weak, and their weaknesses help to make the case for it.
The opponents say that the Bill of Rights has never been amended. But that argument assumes that the Court interpreted the Bill of Rights correctly, which begs a key question. They say that the amendment would put us on a slippery slope toward the suppression of other unpopular viewpoints or modes of expression. It would be self-defeating because it would diminish the freedoms for which the flag stands. But the country was not headed toward a totalitarian dystopia in 1988, before the Court declared a right to burn the flag. Any tendency to prohibit other types of expression would be checked by the extreme difficulty of amending the Constitution. And the flag does not stand simply for an abstract concept of freedom from which a right to burn it can be derived. It stands for a freedom-loving country: a country that has always allowed the public to take departures from pure libertarianism, to decide that certain exercises of liberty have too little value to deserve protection.
Another familiar complaint is that constitutions should divide authority rather than make policy. The proposed constitutional amendment, in truth, rather nicely abides by this principle. Rather than outlining a detailed code about the treatment of the flag, it grants Congress the authority to enact one.
The opponents are right to say that there is no epidemic of burnt flags in this country. There is, however, an epidemic of judicial high-handedness. Some years ago Kathleen Sullivan of Stanford Law School classed the flag-burning amendment and other proposed amendments designed to remedy errant decisions of the Supreme Court as examples of “mutiny” against its “authority.” It is precisely the defiance the amendment represents — a defiance on behalf of self-government — that recommends it to us.