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FIRST AMENDMENT
The nonissue that will not go away
BY DAN KENNEDY

Like a bad check or an unemployed in-law, proposals to make burning the American flag unconstitutional keep coming back. What is it about flag-burning? According to the ACLUís Web site, " Only 200 incidents of flag burning have been reported in the entire history of the United States. A person is more likely to be struck by lightning or win the lottery than to be exposed to a political flag burning. The proposed constitutional amendment is, therefore, the very definition of a solution in search of a problem. "

Of course, even if flag-burning were rampant, it would still be a form of protest allowed by the First Amendment. (As David Frye, channeling Richard Nixon, once said, " Itís only an amendment! " ) Yet George H.W. Bush made protecting the red-white-and-blue a hallmark of his down-and-dirty 1988 presidential campaign against Michael Dukakis. Now, with George W. Bush in the White House, the flag-burning ban is back ó although it appears to be getting more of a push from pandering members of Congress than from the administration.

The Senate version, which proposes " an amendment to the Constitution of the United States authorizing Congress to prohibit the physical desecration of the flag of the United States, " is being sponsored by Utah Republican Orrin Hatch and California Democrat Dianne Feinstein. The list of co-sponsors includes, but is not limited to, such Senate luminaries as Arizona Republican John McCain (is this kind of repression what you gave up years of your life for, Senator?), Mississippi Republican Trent Lott (no mention of equal protection for the Stars and Bars), Pennsylvania Republican Rick Santorum of recent gay-bashing fame, and Maineís normally sensible Republican moderates, Olympia Snowe and Susan Collins.

The House version, whose wording is identical, is being sponsored by Representatives Randy " Duke " Cunningham (R-California) and John Murtha (D-Pennsylvania). The home page of Murthaís Web site has three photos of him with the flag (the same picture, actually, with one of them reversed), none of which is on fire. Cunningham, for his part, boasts of his support for Attorney General John Ashcroftís repressive USA Patriot Act.

The ACLU notes that Secretary of State Colin Powell is among those who have opposed a flag-burning ban in the past ó as recently as 1999, in fact. And, fortunately, the amendment appears to face an uphill battle: itís got 56 Senate co-sponsors and 192 House co-sponsors, well short of the two-thirds needed in each branch. Itís not likely that the amendment has too many supporters who havenít already rushed to sign on as co-sponsors. After all, sending out a press release saying that youíre for the flag, dammit, is the whole point, right? Besides, even if the amendment passed, it would still need to get through three-fourths of the state legislatures.

Still, itís disturbing when a significant number of our elected senators and representatives is ready at any given time to mutilate the First Amendment as a way to score points with those who embrace patriotism but scorn liberty.

Issue Date: May 23 - 29, 2003
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