Testimony of Robert S. Peck

07.08.98

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I have testified on constitutional issues numerous times before congressional committees, including this one, on behalf of different organizations and different issues. Today, I submit this testimony on behalf of no organization or constituency, but, instead, for myself as a citizen and a student of this nation's history and its Constitution.

To date, the debate over a constitutional amendment on the subject of flag desecration has largely been an emotional one, and understandably so. Few symbols so fully appeal to our justifiable national pride as well as the flag. Yet, it is critical, when considering this Congress's responsibilities to the Constitution, to move past whatever emotional response we may have to a miscreant who burns the flag to consider the full ramifications that enactment of an amendment might entail. My testimony seeks to shed light on the gravitational pull that a flag desecration constitutional amendment would exert on other issues of constitutional law. I submit that these likely ripple effects, along with a myriad of other flaws, strongly recommend the amendment's rejection by the Senate.

Although others have raised significant flaws in the logic and arguments mustered in favor of this amendment, no one appears to have carefully examined the amendment's likely impact on the rest of constitutional law. It is but a truism that no matter how narrowly one attempts to draft a constitutional provision, no matter how limited its progenitors' intent, constitutional law has an organic quality that embraces a capacity for growth and the application of its principles to situations and problems that even the most farsighted could not predict.

It should come as no surprise to even the most casual student of the Constitution that in constitutional interpretation, as in other things, the whole is greater than the sum of its parts. This naturally occurring phenomenon invests the U.S. Supreme Court with an interpretative role that goes beyond determining the meaning and application of any specific provision of the Constitution. It also includes the task of harmonizing that judgment with the whole of constitutional law.

No better example of the changing nature of our understandings of constitutional provisions exists than what has occurred in construing the Fourteenth Amendment, which guarantees due process and equal protection at the hands of state government. Shortly after its ratification in 1868, the Supreme Court, in the Slaughterhouse Cases, 83 U.S. (16 Wall.) 36 (1873), noted that any "action of a state not directly by way of discrimination against the [N]egro as a class, or on account of their race, will ever be held to come within [its] purview." Yet, time and practice have transformed our understandings so that its guarantee of equal protection has been used to benefit other minorities and women, as both a justification for and later a prohibition against "separate but equal," to prevent "reverse" discrimination against whites, and as a bar to arbitrary governmental classifications. Certainly, those who campaigned for the Fourteenth Amendment could not have foreseen all of these developments.

Moreover, the Fourteenth Amendment has grown from a very limited guarantee of certain national rights to a rationale for measuring all state laws and actions against the commands of the bulk of the Bill of Rights. Today, a new generation of constitutional scholars are advocating that the amendment's promise of equal protection should be further read as a limitation on freedom of speech, so as to permit governmental regulation of hate speech and misogyny.

Much the same kind of transformation of purpose and reach can be expected of a flag desecration amendment that seeks to immunize from First-Amendment analysis any legislation that regulates untoward conduct aimed at the flag. It thus negates the very basis for the Supreme Court's flag burning decisions: viewpoint neutrality. It has long been bedrock First Amendment law that government may not regulate expression in order to favor a government-endorsed viewpoint over one that meets with official disfavor. It was on this basis that the Supreme Court, in decisions in 1989 and 1990, held a Texas law and a subsequent federal flag desecration statute, unconstitutional. Because the proposed constitutional amendment is aimed at undoing the rationale of these decisions, it will inevitably change the landscape of First Amendment law.

Thus, wherever the government asserts an interest in national unity that is logically equal to the interest this amendment establishes in the integrity of the cloth that represents an American flag, the new amendment would change the First Amendment equation and override existing rights of free speech and a free press. Under such an analysis, it would matter little that those rights were being exercised to expose wrongheaded government policies, to describe governmental malfeasance or to protest some new military intervention. Surely, there will be many times when government officials declare that the need for national unity and respect should be regarded as a value second to none. Where before such a government stance that would require suppression of dissent would fail in court as a form of viewpoint discrimination, ratification of this amendment would make the existing First Amendment argument much easier to overcome if the governmental interest appears to the judges reviewing the issue to be at least as weighty as the government's interest in the flag's physical integrity.

As it is, government already has a right to override the requirement of viewpoint neutrality in compelling circumstances; the flag desecration amendment would provide courts and government with a new and lower benchmark for determining the overriding nature of the government justification. In such circumstances, certainly, the Supreme Court's 1943 Flag Salute decision, where it held that children who objected on religious grounds could not be required to pledge allegiance to the flag, would be subject to reversal. The forced patriotism authorized by this amendment could also provide the basis for the reinstatement of loyalty oaths of the most outrageous and mind-numbing variety. Parade permits and political protests could be subjected to government permission on the basis of their messages in times of crisis. In other words, there would be a substantial retreat from the free expression rights we now take for granted.

Others have detailed the many other logical flaws committed by the amendment's advocates. I will only reiterate here some that are truly compelling:

1. Proponents have entirely eschewed perfectly constitutional and appropriate statutory alternatives. The Supreme Court expressly left the door open to a variety of statutory approaches, including that taken by S. 982, which uses an incitement standard;
   
2. Proponents misunderstand our history when they ignore the less-than-respectful treatment that the founders of this nation accorded the Union Jack, the flag of their country of the time;
   
3. Proponents turn a blind eye to the relatively recent appearance of flag desecration laws on the scene (the first appearing in 1897), while the relevant First Amendment precedents date back not to 1989 but 1930, when the Supreme Court held flag usage in protest of government policies to be a form of expression;
   
4. Proponents care not at all that no constitutional crisis involving the flag so engulfs our nation as to suggest a need for as dire a remedy as a constitutional amendment. The handful of incidents tracked by the Citizens Flag Alliance since 1989 often involve juvenile delinquents and were still subject to prosecution under laws forbidding stealing, destruction of property and public fires. It seems ludicrous to credit these misguided individuals with as momentous an impact on us as a nation so as to require a retreat from freedom in the form of an amendment carving out an exception to the Bill of Rights for the first time in more than two centuries; and,
   
5. Proponents overlook the considerable definitional problems that both the flag and "desecration" create for the statute that would implement the authority granted by the amendment. Every law, particularly one that touches upon potentially expressive activity, requires clear and precise definitions of what is and what is not prohibited. Yet, to define the flag in such a precise manner, as well as what constitutes a desecration would create insuperable difficulties. Moreover, it would create new flag issues for subsequent Congresses, as Members attempt to raise the bar higher -- both because some politicians will try to prove themselves "more patriotic" than their potential opponents by increasing its scope and because those who take a perverse pleasure in challenging authority for the sake of the challenge will constantly find new ways to show contempt to the flag that skirt the letter of the law and inspire yet further legislation to address their creative desecrations.

In giving the Congress a role in the constitutional amendment process, the Framers of our Constitution expected that the Senate would particularly exercise independent wisdom in the stewardship of the organic charter of our democracy and the most freedom-loving Constitution the world has ever known.

I submit that that wisdom lies in refraining from rewarding the lobby that seeks this amendment and refraining from tinkering with our Constitution in a manner that is likely to have adverse effects far beyond the issue of the flag. What makes this possibility so tragic is the fact that the American flag is actually in no danger, even if some pieces of cloth that represent the flag are subjected to misuse on rare occasions. Passage of this amendment would put the very freedoms that define us as a nation in jeopardy. No patriotic American should be willing to take such a risk.