Count me among those who think a ban on flag burning is both un-American and unnecessary, but the thing I find so fascinating is how untenable a ban would be as well. But let’s take a step back for a second here. One thing that is important to keep in mind is that the amendment in question doesn’t actually ban flag burning at all. Supposing that the amendment that made it through the House passes through the Senate and is approved by the state legistlatures of two-thirds of the states, the only change would be the addition of this sentence to the Constitution :
The Congress shall have power to prohibit the physical desecration of the flag of the United States.
So if everything goes as the conservatives plan, the only thing they’ve gained is the ability to pass a law that prevents flag desecration. Once that’s done, they have to go back to square one and define the words “flag” and “desecration”. For example, take this picture that was posted at BoingBoing :
Is this an American flag? Technically, no. The flag above the 49 stars and one circle. It’s a snarky point since we can agree that the American flag has 50 five-sided stars on a blue field with 13 stripes alternating between red and white in color, but even given this rather strict definition, does that make this an American flag?
Well, it’s got the correct number of stars and stripes and it’s got the colors right, but the stars need to be in the upper left of the flag. Perhaps this is a flag then?
Nice try, smartass. That’s a t-shirt with a picture of a flag. Even though we’ve got all the details right, the object in the picture above isn’t a flag because what surrounds the red, white, and blue rectangular image makes it a shirt. How about this then?
There are flags with yellow trim, so I assume that doesn’t disqualify the image above. But if we can conclude that this isn’t a picture of a flag, but a patch, then would that mean the difference would be the material, the size, or the purpose of the object above? If that’s the case, then does this let the President off the hook for this infamous bit of flag desecration?
I would say “no”. Despite all the nitpicking about size, layout, shape, and material, the pictures above meet the common sense definition of flag desecration. Even then, should what the President did be considered a crime? That’s where the two sides differ. Conservatives think that it’s okay to arrest and/or fine someone for being disrespectful to our national symbols. Liberals on the other hand think that just because the President is acting like a jerk doesn’t mean he’s a criminal.
Even if the conservatives get their way with this stupid flag desecration amendment, they have to follow this bit of feel good pandering with the hard work of defining exactly what a flag is, what constitutes desecration, and what the penalties should be. That is, of course, unless Congres decides to punt the issue to the courts by passing a law that’s incredibly vague. This is what they do with abortion laws in order to get some election year kudos without having to worry about crafting a law that actually works, but those of us who actually take this stuff seriously should be asking these questions now.
So for the time being, it’s open season on flag burning. If you burn a flag around me, however, be prepared for a verbal or physical backlash. Unlike the babies in the Republican party, if somebody pisses me off by insulting our country, I’m not gonna go crying to the government for protection.