My pal Peter David saves me the trouble of writing an even longer post about how brain-fogged ridiculous the anti-flag burning amendment is. Read him, then come back here and read the rest of me.
Given the low incidence of the supposed crime, we have here a cure for which there is no known disease…but there probably will be. No one's really burning American flags, at least not in this country. But with a law in place that dares people to do so, can anyone believe that some folks won't be more inclined to fire up Old Glory?
One point I haven't seen much of is that the proposed amendment would give Congress the power to write laws to stop flag-burning…but no one has seen these laws. Maybe no one has offered up a draft of what one might look like because they know any such example will be impractical and impossible to fairly enforce.
How do you write a statute that would effectively and efficiently empower authorities to prosecute flag-burning? Merely saying one cannot burn a flag won't do it since the established, proper way to dispose of a tattered or unwanted flag is to burn it. Someone will have to define what it means to "desecrate" a flag, and that discussion always reminds me of the time that infamous rebel Abbie Hoffman appeared on The Merv Griffin Show wearing an American flag shirt and CBS covered up that part of the screen. They decided that was a desecration despite the fact that during the Griffin broadcast, there was a commercial in which Roy Rogers wore the exact same shirt, and that was deemed acceptable. CBS was then in the impossible position of trying to explain why it was "desecration" for Abbie Hoffman to wear the flag while arguing against the war in Vietnam, whereas it was fine for Roy Rogers to wear it while selling fast food. How will any law against flag desecration not run into that kind of highly-arguable conundrum?
For that matter, how are they even going to define the American flag? Those shirts were probably not made out of actual flags but if they were, would it alter their legal propriety? If I take a length of red and white striped cloth and burn it, am I burning an American flag? What if the pattern has white stars on a blue background but isn't, in its whole form, a flag? Are they going to arrest me for burning something that kind of looks like an American flag? What if I burn a 13-star flag? What if I design a 56-star flag with fifteen stripes and burn it? What if instead of burning a flag, I rip it apart? What if I rip it apart and re-sew it into an American flag jacket or cummerbund? I'll bet I could think of a hundred things to do with a flag that some would think was desecration and others would think was honoring it. Suppose I shredded and charred one? Would that be desecration? What if I shredded and charred one in order to re-create a famous battle scene from American history in which soldiers hoisted a damaged flag? Supposing I write a movie in which someone incinerates Captain America…
This can go on forever and it's something the courts don't need. I think it speaks well of America if we believe it's so strong and enduring that it can't be harmed in the slightest by some punk somewhere trampling on one example of Betsy Ross's handiwork. Of all the insulting things I've seen said of this country, I don't think any have been as contemptuous as the suggestion that we are actually harmed by flag-burning.