Congressional elections are drawing near so Republicans will hold another vote in the Senate next month on an amendment to the Constitution that could make it a criminal act to desecrate the flag. Since 1990, Republicans have believed that the election-year flag votes give them a winning issue.
If he were thinking clearly, President Bush would have had them move up the vote to coincide with the visit the other day of Chinese Premier Hu Jintao. The communist leader apparently made no concessions to the president on trade or anything else, but it might have been different if Bush had been able to show him that in one important area the United States was going to meet him more than halfway. It was willing, for the first time in its 240-year history, to shrivel the Bill of Rights by criminalizing one form of political expression.
That would have impressed Hu. Like most dictatorships but unlike most free societies, China makes it unlawful to disrespect the symbols of national power like the flag. You can go to prison in China, Cuba and North Korea for torching or stomping on a flag. Saddam Hussein would have you tortured.
In that admittedly small respect, the United States is about to join the tyrannies. The Senate has defeated the flag amendments in every election-year vote since the U.S. Supreme Court ruled in 1989 that burning a flag could be a form of political expression that was protected by the First Amendment, but it is so close this year that Arkansas Sen. Blanche Lincoln is counted on to cast the deciding vote and send the amendment to the states. Her predecessor, Dale Bumpers, always led the fight against that and every other effort to weaken the Bill of Rights.
War is always the best time to repress rights because disrespecting the flag strikes a lot of people as irreverent, which it is, and a disservice to the soldiers, which it is not. Amid the hysteria during and immediately after World War I states passed laws forcing people to respect the flag. You could not commercialize it or use it in political ads, much less burn it. And war and its preparation are when the repression countenanced by such laws take their harshest form.
With war with Germany and Japan brewing, the U. S. Supreme Court handed down the infamous decision in Minersville School District v. Gobitis, in which it said the school was within its rights in booting out the children of Jehovah’s Witnesses because they would not salute the flag or recite the Pledge of Allegiance to the flag. Jehovah’s Witnesses take the biblical injunction against obeisance to symbols and images literally, but the court said that the value of national conformity overrode their trifling religious notions.
What followed was a random pogrom against members of the sect, who hand out their Watchtower pamphlets around town. More than 1,500 incidents of violence against Witnesses followed. At El Dorado, members of the Veterans of Foreign Wars fell upon proselytizing Witnesses and drove them from town, and pipeline workers shot and beat Witnesses who had gone to Little Rock for their annual meeting. The victims were charged with disturbing the peace.
As a result, the Supreme Court reversed itself three years later and said conformity could not be forced upon people like the Witnesses. Justice Robert H. Jackson, who would later become the American prosecutor at Nuremberg, wrote our most eloquent expression of First Amendment rights: “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion or other matters of opinion.”
That ruling came a little late for Joe Johnson, a Jehovah’s Witness who farmed 39 scrubby acres at St. Joe in Searcy County at the beginning of the war and who refused to salute the flag when ordered to do so by the county welfare commissioner after he went to the courthouse to pick up commodities for his wife and eight children. He made an awkward little speech about placing no symbol before God and, according to the welfare director, one gesturing hand brushed the flag. The sheriff came and locked him up for desecrating the flag, and the Arkansas Supreme Court, ruling soon after Pearl Harbor, said it served him exactly right.
Only one justice differed. “If ignorance were a legal crime,” wrote Justice Griffin Smith, “the judgment would be just. But witch-hunting is no longer sanctioned. The suspicions and hatreds of Salem have ceased. Neighbor no longer inveighs against neighbor through fear of the evil eye.”
You would think that the republic was in no peril from the likes of Joe Johnson, or the William Jennings Bryan fan at Sedalia, Mo., who burned a flag to protest William McKinley’s impending election in 1896, or the former Women’s Army Corps officer at Richardson, Texas, who burned a flag in 1968 to protest the war in which she had just fought, or any of the other few dozen inconsiderate people in all our history who used the flag to underscore their minority views.
Amending our most sacred law to punish them for their rudeness may seem like only a trivial overreaction. But it also says that we are no longer the robust freedom-loving people we were but fearful and far less comfortable with our principles. Let us commend those thoughts to Senator Lincoln.