OLD GLORIES IN TANDEM

Since 1989, when a 5-4 majority on the Supreme Court first invalidated long taken-for-granted laws against flag desecration, most polls have shown decisive support for a flag amendment, often near 80 percent. At the same time, “thoughtful” commentators, unelected “opinion leaders,” and, especially, the mainstream media have overwhelmingly opposed it. Since June, when the House voted for the amendment, 312-120, their reaction has been relentless and — in day-to-day “reporting,” editorials, and op-ed pieces — relentlessly one-sided. Not just one-sided, but haughty, nasty, and often hysterical.

The arguments against the amendment have, also been remarkably formulaic. The editorials, the op-ed pieces, and the “reporting” have knocked off the same claims again and again. Let’s review the three main clusters of arguments. From the flagrancy of each, there spring — like flowers in a landfill — populist arguments in favor of the amendment. Taken together, they establish this issue as an index of the populist challenge to both establishment liberalism and establishment conservatism.

The flag i s the unique symbol of our aspiration to national unity: That much is accepted by everyone as a starting point. What’s contested, at the outset, is whethr protection of this symbol should be taken seriously — along with subsidiary questions of whether protection is needed and whether it would be effective. Of course, the opponents say they “revere” the flag. Yet they belittle, even mock, the amendment on all these counts.

Here’s how their argument goes. The flag, they say, is a “mere” symbol. They insist on boling down its meaning. What it “really” stands for, they tell us, is a national commitment to certain official institutions, certian liberties under law. And the freedom the flag symbolizes, they go on, includes a freedom to burn it. They grant that flag desecration is “offensive.” They compare it, however, to displays of Nazi or Klan regalia. The offensiveness of these displays to minority groups, they say, is no less — in fact, they suggest, it is greater. Hence, the freedom to burn the flag, which offens other groups. They conclude with a one-two punch: This freedom, they say, is pretty much without cost since the tendency to exercise it is, at the moment, weak. (There have been rather few flag burnings in the last several years.) They predict, on the other hand, that any attempt to restrict this freedom would be ineffective (hence costly) since the desire to exercise it is so strong and would only get stronger in the face of legal prohibition.

Take, first, the matter of what the flag symbolizes. We are, by now, accustomed to being told, by smug elites, what are the “real” issues in an election and what is the “real” meaning of this or that common experience. In this case, the meaning said to be the “real” one is especially revealing. Here we ahve many members of our self-imagined governing class identifying the flag with official concepts and processes for whose definition and operation they$ N are in the habit of claiming primary, almost proprietary, responsibility. Thus Charles Fried — a former solicitor general who specializes in constitutional law — proclaims that the “thing itself,” which the flag symbolizes, is the Constitution. How covenient. It’s no surprise, then, that opponents of the amendment go on, with stunning circularity, to announce — as if we must, of course, take their word for it — that what the flag stands for is the freedom to burn it.

No less revealing is their comparison of the “offensiveness” of flag desecration to that of expression that’s hurtful to certain minority groups. They insist on reducing everything — including the unique symbol of our aspiration to national unity — to competing interests of diverse groups. You can’t help wondering why they are trying to obscure other values symbolized by the flag, values on a different, deeper dimension.

These, of course, involve aspirational bonds, not divisions, among Americans. They have to do with Americans as a people. They’re about the nation, not the government. Even more, they’re about a people — “We, the People” — that is supposed to govern itself. For ours is a nation defined not by any shared ethnicity, but by a political practice, a practice of popular sovereignty based in political equality. These are foundational values. They underlie official institutions. They undergird law. They precede the Constitution. And, as such, they threaten the pretensions of any elite.

When opponents of the amendment argue that protection of the flag is not needed and would be ineffective anyway, they reveal their bias yet again. Seeing themselves as responsible for good government — nowadays, they prefer to say “governance” — of the people, they take for granted that the problem is one of behavior control. But the number of flag burnings last year or next year is not what should most concern us. We’re talking about a symbol here. Whether two or two hundred burnings of a flag damage the flag, as a symbol, depends on our response to the behavior. Don’t forget why the amendment was proposed in the first place. When the court, six years ago, overturned the laws against flag desecration, it declared permissible what had long been understood to be impermissible. It officially demoted the unique symbol of our popular sovereignty to the level of myriad competing values and interests. Symbolically, it demoted the nation to the level of the government. Or, one might as well say, it turned the government, symbolically, against the nation. This at a moment when millions are convinced that the government has been doing just that for some time in all sorts of ways. This symbolic challenge by the court, in the name of the Constitution, is properly answered in the Constitution, by exercising the sovereign right of the people — symbolized by the flag — to amend it.

So, we come back to the flag as a “mere” symbol. The argument denigrating it on this ground sits oddly in our era of identity politics. But, be t hat as it may, the thing to remember is that — views of the current legal establishment to the contrary notwithstanding — the Constitution is, above all, a symbolic document. Its genius is its grand ambiguity on crucial matters. It is not a set of rules and regulations. Nor is it a blueprint. Being in large part symbolic, it is hortatory. As such, it has helped summon astonishing political energy and creativity. And its boldest symbolic stroke was its first three words. Thus, in an era when our governing elites depreciate the ideal of popular sovereignty, the flag amendment simply seeks to reaffirm the exhortation of the framers.

Turn now to the second cluster of arguments about the amendment. It has to do with freedom of speech. Libertarians — liberal and conservative — deplore the flag amendment as “mutilating” and even “desecrating” our most precious civil liberty. To undo the court’s flag-burning decisions, they say, would violate an inviolable rule that forbids regulating the content of political expression. And, they insist, it would set down a subversive counter-rule, which would authorize censorship, compel affirmation of political orthodoxy, and push toward totalitarianism. Only totalitarian governments, they claim, protect their flags. (Was the United States totalitarian until 1989?) Rising to a crescendo, they cry that we must never, ever “amend the First Amendment.”

It surprises them that supporters of the flag amendment agree with most of the values and principles they invoke. I, for one, am a civil libertarian. I believe that, in a democracy, freedom of speech must be “robust and wide open.” In fact, I think it ought to be more robust and wide open than it is now. For populists, public expression by all sorts of people — not just the ” thoughtful” ones — is vital to popular sovereignty. Hence, unruly expressive ” conduct” mustn’t be sharply segregated from more genteel “speech.” (Chief Justice Rehnquist did that in dissent in the flag-burning cases). Nor should ” inarticulate” expression be devalued. (Rehnquist did that, too.) And it’s because of these beliefs that many of us support the flag amendment. How could that be? Such a view doesn’t show up on the radar screen of the establishment. The reason is that its screen is a mirror.

In the mirror, establishment libertarians see only themselves and their imagined opposites, oppressive and benighted. That’s why they’re so given to hyperbole. Thus, what blinds them to the populist position is a compulsion to exaggerate both the amendment’s “contradiction” of current free speech principle and its likely effects. As people who deplore those who “play on fear,” they can’t seem to help doing it.

Consider the supposed “rule” against restriction of speech content. There is, of course, no such “rule.” (Think of obscenity.) There’s no such “rule” even for political speech. The court has held that statements criticizing official conduct of a public official may be restricted, if they are known to be false and damage the reputation of the official. This was made clar by the Warren court — in an opinion by Justice Brennan, the very opinion that celebrated freedom of speech as “robust and wide-open.” It’s been reaffirmed ever since. The idea must be this: Some very minimal parameters on the content even of political speech will not suppress and may actually be a condition of its continued robustness. Wide-open debate explodes and dies, after all, if there are absolutely no limits on what anyone says about anyone else.

On the right, on the left, and in the center, nowadays, it’s widely agreed that these parameters have broken down and must be retored. On the right, it’s thought that “uncivil” and “unreasoned” speech content needs to be checked. ( The court, on occasion, has interpreted the First Amendment in light of that belief.) On the left, it’s thought that “hate” speech, beyond face-to-face ” fighting words,” needs to be checked. (On occasion, the court has read the first Amendment in light of that belief as well.) The problem is that these prescriptions invite reuglation so braod and vague that robust expression really might be suffocated. In the center, by contrast, there’s support for $ Imuch more minimal restraint — on intentional, physical trashing of the unique symbol of the bonds that make wide-open debate possible. This leaves it to individuals, in a thousand other ways, to criticize the government and even the aspiration to national unity, if they want. It simply affirms that there is some commitment to others, beyond mere obedience to the formal rule of law, that should be respected as a basis of a flourishing freedom of speech.

To picutre what is at stake here, recall the civil rights movement. Recall no t only its invocation of national ideals, but also its evocation of nationhood. Recall the famous photo of the Selma marchers carrying American flags. The ques tion is: Will the next Martin Luther King have available to him o r her a basic means of identification with the rest of us — an inclusive appeal to the bonds that, at least in aspiration, make us one?

This is no subversion of free speech. Quite the opposite. To claim it is, opponents of the amendment have to misrepresent it. They can do so confident that no one will question them in the mainstream media. One example: In the $ IWashington Post, Nat Hentoff equated prohibiting physical desecration of the flag with something very different — a mandatory flag salute, long ago held unconstitutional as a “compulsory rite,” coercing a declaration of belief. Surely, he saw the difference. But, after a few paragraphs, he was back suggesting that advocates of the amendment want to make it a crime to “imagine” burning the flag. Is it too much to ask Hentoff and the others a version of the question asked by Joseph Welch: Have you no shame?

Since shame won’t be forthcoming, here’s another question. What is it they are afraid of? Playing their own game, I’d say what’s “really” going on is this: Seeing themselves as responsible for “enlightened” government, they fear the idea of the nation, the prospect of popular sovereignty, the empowerment of ordinary people. The amendment excites their fear not just because it dramatically reasserts the idea of the nation. It addresses, also, the popular basis of robust, wideopen debate. And, what’s more, the very process of amending the Constitution stirs their ultimate nightmare, of ordinary people — “rude blue-collar types,” in the words of one of my colleagues — remaking basic law. And that leads to the third cluster of arguments.

Probably, the argument that opponents make most often is this last one: We must not “tinker” or “fiddle” or “fool with” the Constitution, they say. (Even Colin Powell said this. It seems to come easily to “thoughtful” people who haven’t thought much about the matter.) Notice the verbs they use to describe the process of constitutional amendment. Almost invariably, they’re full of disdain, belittling, insulting. Such verbs are rarely used to describe judicial interpretations or lawyers’ interpretations or academic interpretations of the Constitution. Nothing could be more revealing — of what motivates the opponents and what should spur on advocates of the flag amendment — than this choice of words. From this root disdain for democracy, they spin out a cluster of related routine arguments.

The Constitution, they say, is too “fragile” to be touched (at least by callused hands). They speak “learnedly” of its “delicate balance.” These soundbites, of course, are numbingly familiar. Their very familiarity may numb us to their absurdity. For, far from proving fragile, the Constitution has proved, over two centuries and radical shifts in its accepted meaning, to have an extraordinary tensile strength, enduring by adapting — through reinterpretation and through amendment — to circumstances, changing and unforeseen. Just as John Marshall promised long ago.

Suspecting this argument may not be convincing, they move to another where they can have some fun (which is to say, where they can give their disdain a humorous free rein). Constitutional amendments, they — correctly — observe, $ Imay have unintended consequences. What they go on to claim — incorrectly — is that amendments will have specific, outrageous sorts of consequences, not intended by their drafters. So, they talk of (and flourish) all sorts of items with a flag logo on them: handkerchiefs, bathing suits, underwear, you name it. “These will count as flags!” they proclaim. Writing in Time, Barbara Ehrenreich focused — as most do, interestingly — on underwear. “Even a small lapse of personal hygiene,” she whooped, “may constitute a punishable offense.”

Do these people have no faith at all in our court system? At one moment, they pose as traditionalist believers in the established system of “governance. ” Then, they imagine that judges, interpreting new — and very minimal — constitutional language, will go bonkers.

Amid the frivolity, the absurdity of their argument may, again, go unnoticed. Anyone who knows anything much about judges at the end of the twentieth century knows that they will be suspicious of new constitutional provisions. They will read them sensibly, even narrowly. They will look to the recorded intent of the framers. And they will harmonize them with older provisions. Hence, what counts as a “flag” and as “physical desecration” will be influenced (possibly determined) by the statute Congress enacts under the amendment and, in any event, will be tightly limited by common sense and the First Amendment.

And, so, the opponents are reduced to their last argument. The Constitution, they cry, is perfect as is. It is not “a rough draft,” intones Representative P at Schroeder. Here, the absurdity swells wonderfully and turns back on itself. For if the Constitution is perfect, part of its perfection must be Article V, w hich provides for its amendment.

What the framers called for in Article V is a democratic process through which the people — the nation — may pull the reins on the government, reins which the framers meant, always, to be in the hands of the sovereign people. In this century, the people’s grip on the reins has slackened. Isn’t it time — now — to take hold? To establish, again, the constitutional premise of self- rule? To confirm that we are, after all and above all, one nation?

Richard Parker, professor of law at Harvard University, is the author of Here, the People Rule: A Constitutional Populist Manifesto.