Let’s Not Create an Exception to the 1st Amendment for Flag Burning

Senator Kevin Cramer has made himself a co-sponsor of a proposed amendment to the U.S. Constitution which would create an exception to the 1st amendment for flag burning. While presently burning the U.S. flag is legal, as it should be, the amendment Cramer is backing would give Congress the power to make flag burning illegal.


The full text of the amendment is below, but here’s the key language:

‘‘The Congress shall have power to prohibit the physical desecration of the flag of the United States.’’.

Simple enough, but this is problematic for a number of reasons.

For one, it flies in the face of the spirit of the 1st amendment. What is the point of that amendment if not to protect unpopular, controversial forms of expression? We do not need constitutional protections so we can sit around and talk about baseball or the weather. We need it to ensure that people can say things, or do things, which make other people upset.

That our nation is so free people have the liberty to destroy and otherwise desecrate the national flag is a testament to our commitment to free speech. Granted, we haven’t always achieved all that we aspire to when it comes to freedom of speech, but on the whole we’ve done a pretty good job.

Letting Congress outlaw burning the flag would mean doing a worse job.

For another, this is a slippery slope. Watching someone desecrate the U.S. flag is a difficult thing for many people (including me). But there are lots of examples of individual liberties being exercised in a way that’s hurtful to the feelings of others. Many conservatives, for instance, feel that bakers shouldn’t have to bake a cake for a homosexual wedding. Though I disagree with the motivations, and find such refusals needlessly hurtful, I agree. Individuals should have the right to say no, and it doesn’t really matter how that refusal makes others feel.

But how can conservatives make that argument if we simultaneously can’t allow flag burning?

I say and write this often, but it bears repeating: The price of admission to a free society is the reality that you’re sometimes going to see and hear things you don’t like. Sometimes things which hurt you and enrage you. If the various social and political factions which make up our nation begin trying to outlaw all the things they don’t like to see or hear we are going to find ourselves living in a society that isn’t free at all.

Rob Port is the editor of SayAnythingBlog.com, a columnist for the Forum News Service, and host of the Plain Talk Podcast which you can subscribe to by clicking here.

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