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The Flag-Burning Amendment Rears its Ugly Head Again

May 3, 1999

According to People for the American Way Congress is very close to approving an amendment to the U. S. Constitution banning the desecration of the American Flag. When this issue came up ten years ago, I wrote a letter to former Representative Sonny Montgomery, who was at the time the chairman of the House Armed Services Committee. The letter seems as applicable today as it did then.

September 11, 1989

Hon. Sonny Montgomery
U. S. House of Representatives
2184 Raborn Office Building
Washington, D.C. 20515

Dear Mr. Montgomery:

I read with dismay several weeks ago that you support amending the United States Constitution to enable Congress or the states to outlaw desecration of the United States Flag. As your patriotism and love of country are indisputable, I am perplexed that you are in favor, first, of tampering with the paramount political document of our nation and second, and perhaps more important, that you are in favor of outlawing an activity which, distasteful as it is, has never been proven to pose the slightest danger to our security, either internal or external.

As one who served many years as an officer in the armed services of our country, both on active duty and in the Air National Guard, I personally find the desecration of the American Flag to be an abomination. I shun art which desecrates the flag and I would certainly not attend a demonstration which involved burning a flag.

One of the great advances in legal and political principle which our founding fathers made over their European counterparts, however, was in holding that acts which are merely offensive cannot be outlawed, no matter how many people they offend, unless such acts pose an immediate threat to public safety. Discontents and radicals may freely publish books which are highly offensive to the rest of us. Let us not forget Mr. Salmon Rushdie's Satanic Verses and be thankful that we live in a country which tolerates abominations!

Now my question to you is this: If we can tolerate, even protect, the expression of religious nonconformity, including such evil and strange practices as black masses and snake-handling, how can we outlaw desecration of the flag without making ourselves flagrant hypocrites? Is burning the American Flag worse than desecrating the Bible or the Cross? Let me be even more blunt: would you make the flag more important than the cross? That would be the effect of the legislation you appear to be supporting.

There is a second aspect of the flag desecration controversy which ought to be said. To outlaw the desecration of the flag is not a small step; it is a giant conceptual and ideological leap to regarding patriotism as something which can be mandated by laws rather than as a love of one's country which grows out of mutual trust and respect between the people and its servants, persons such as yourself. Are we losing that mutual trust such that we find it necessary to stamp out what is nothing more than a vivid and disgusting expression of opinion? A people secure in their liberties and trusting their government would not be threatened by such juvenile behavior; in a mature society such behavior would be ignored.

Third, and finally, Mr. Montgomery, I think you would lead us into a futile undertaking to find a satisfactory definition of desecration without infringing upon basic constitutional liberties. If you draft a highly specific statute, you can be sure that someone will find a way to "desecrate" the flag without violating the statute, since criminal statutes must be construed strictly. I can almost guarantee that for any statute you may enact, there will be several ways to desecrate the flag without violating the statute. If you write your statute in general terms you risk constitutional infirmity from overbroadness. I might also add that an overbroad amendment would represent such a danger to our basic civil liberties as to be intolerable in a society which makes individual liberty the very cornerstone of its political system.

Flag burning offends me as well as you, but there are other forms of desecration which offend me far more. I become nauseated when I see a flag the size of a football field flying in front of an automobile dealership. I likewise become indignant when pretty girls wear bunting at Republican Party conventions. I also regard as an abomination the use of the flag by the Ku Klux Klan and other far right fringe groups. These are the people who really desecrate the flag by perverting its use to their own ends and who demonstrate Dr. Johnson's famous dictum that patriotism is the last refuge of a scoundrel. The flag-burning protester, on the other hand, is more often than not expressing his outrage, justified or not, upon a nation which the flag represents but which he believes has not lived up to the high ideals which the flag symbolizes. Does this not sound more like a lovers' quarrel than something approaching treason?

No one questions your patriotism or your integrity. You have the moral and political influence to put a stop to this folly of constitutional tinkering. I believe that you have the wisdom to realize that a constitutional amendment would be a dangerous precedent. The real question is whether you have the courage, so rare in politicians, to oppose in public what virtually every one of your Congressional colleagues, if they thought seriously about the matter, would have to agree in private is a great mistake. Please do not consider me presumptuous to remind you that leadership, a quality which you are reputed to possess in great measure, means guiding, not following, the opinions of your constituents and to suggest strongly that now is the time to put that leadership to work.

With best regards,

Thomas J. Lowe, Jr.

I cannot locate the reply from Rep. Montgomery's office, but I recall it to have contained nothing of any substance.