The Flag Consecration Amendment

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In July 2006, after passage by the House of Representatives, the Senate voted on a constitutional amendment of a single sentence: The Congress shall have power to prohibit the physical desecration of the flag of the United States. While commonly referred to as the Flag Desecration Amendment, it is more accurately an amendment to consecrate the American flag. It was defeated by a single vote, so you can be sure it will reappear soon. This argument reframes it in a way that puts the burden on supporters. In doing so, it creates a new meme to express this amendment, “The Flag Consecration Amendment”

Merriam-Webster's primary definition of desecration is "to violate the sanctity of," sanctity being defined as "holiness or Godliness." Now, in the absence of this amendment it is conceptually impossible to desecrate a flag because it is not a sacred object. Therefore to create an amendment to forbid desecration, the object must first be consecrated, an inherently religious act. Implicit in a law against desecration is the act of consecration, the exact term used by Justice Brennan in his Supreme Court decision of 1989.

The effect of this seemingly innocuous amendment is that it will profoundly change two centuries of jurisprudence in the service of a secular constitution. Each Supreme Court decision can be reduced to balancing the rights of individuals-- between themselves and various collectives called government. Unlike most other countries, our constitution acknowledged no religious authority that was given special deference. And more importantly, Government, along with its symbols, was treated as another collective of individuals, possessing no sanctified authority that transcended the limited power delegated by citizens to act in the common good.

Once we focus on what this amendment actually is, the consecration of a symbol of government, we can understand the depth of opposition that actually crosses party and ideological lines. The most recent Supreme Court decision that banned laws against flag burning was decided by a single vote, with the most surprising one coming from conservative Antonin Scalia. First in his Harvard Law class, editor of the Law Review, he is considered by many to be the most brilliant Justice ever to have served.

Scalia saw something about the flag burning law that he voted against that would even be more applicable to this amendment; that it was not of the same cloth as our Constitution. He must have felt it deep in his bones, because Justice Scalia can make a pretty convincing legal argument for anything. (See Bush v Gore) I think I know what he might have felt. Antonin Scalia, besides being a brilliant student of law is a devout Catholic trained in Jesuit logic. He prides himself on being able to adhere to both a Constitution by men and the law of God. With all of his brilliance, he must have known that the two, if merged, would dilute each other. One, based on revealed truth, demands reverence; the other constant vigilance.

With his knowledge of the depth and precision of American legal jurisprudence he knew that the most egregious images of chaos associated with flag burning could be successfully punished under existing constitutionally sound laws, without resort to the iconic consecration of specific protection for this symbol. And, perhaps, he remembered his first childhood exposure to law, that which was handed down to the people of Israel and is still revered as the first of ten by his faith, "Thou shall make no graven image....."

Perhaps Justice Scalia faintly remembered another moment, etched in the memories of all Americans. It was spoken by someone who understood the limits of the power to consecrate.

But, in a larger sense, we can not dedicate--we can not consecrate--we can not hallow--this ground. The brave men, living and dead, who struggled here, have consecrated it, far above our poor power to add or detract....... that we here highly resolve that these dead shall not have died in vain -- that this nation, under God, shall have a new birth of freedom -- and that government of the people, by the people, for the people, shall not perish from the earth.

Abraham Lincoln was saying that the fields of Gettysburg, like the flag of our country, is consecrated, not by his speech, nor by any law, but by the lives of those who defend our principles. It is a nation under God, but it is a government of the people.

Our flag is as worthy of respect as our nation is worthy. This is the ongoing task of each generation. Whether the challenge be slavery, depression, fascism or terror, we are judged by successfully meeting it while preserving the essential nature of our constitutional government. Consecration of our flag will not preserve national greatness. Rather we will endure only if we continue to muster what it takes to prevail over all that outrageous history throws in our path.

Al Rodbell

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