How big of a problem is flag burning such that a Constitutional amendment is required to prohibit it? Given how strong people’s emotions seem to run when this issue comes up, you might think that this is one of the most pressing matters facing America. The truth, though, is that bans on flag burning and desecration are a solution in search of a problem: flag burning almost never occurs, and when it does, the only harm it causes is to the sensibilities of the very few people who see it.
The debate over whether Congress should ban flag burning and desecration is missing something which plays a larger role in most hot-button political disagreements: emotionally charged stories of specific cases. When people argue for tighter controls on guns, it’s common to cite horror stories of gun violence. When people argue against such controls, it’s common to cite heroic examples of people using guns to defend themselves. When people argue against abortion, they cite stories of regret from women who had abortions. When people argue in favor of abortion choice, they cite stories of women who feel they are better off for having had an abortion.
It’s true that not every debate involves lots of specific examples, but using them is quite common. This is good because such debates can become quickly abstract and it’s important to remember that our decisions affect real people. It can be bad, though, because it can cause a debate to become more emotionally charged than it should, limiting our ability to arrive at a more rational, reasonable solution. Yet when it comes to debates about flag burning, there is an almost total absence of such examples — and this despite the fact that it’s obviously a very emotional subject. We don’t ever hear horrifying statistics of rampant, wanton destruction of flags — why?
For one thing, there are so few example to choose from in the first place. According to the ACLU, there have been only 200 reported incidents of flag burning in the entire history of the United States — an average of less than one per year! Between 1990 and 1995, there were about eight reported flag burnings each year. Put in other terms, this means that a person is more likely to be struck by lightning or win the lottery than witness a political flag burning in person. Compare this to how often the flag is used in commercial advertising — an act which was the target of the first flag protection laws in the early 20th century and which is still technically a crime in most states.
And what happens when someone witnesses a flag being burned or desecrated in public? Is their pocket picked? Does it break their leg? In fact, they experience no loss of property and no physical injury whatsoever. All that happens to them is that they are offended — perhaps extremely and deeply offended, but only offended nonetheless. Others are also extremely and deeply offended when they see Nazis marching, when they see gay pride parades (or just gays walking hand-in-hand), when they see interracial couples, when they see the Confederate flag flying, and so forth.
In his dissent in the case of United States v. Eichman, Justice Stevens wrote:
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Assuming that the protester is burning his own flag, it causes no physical harm to other persons or to their property. The impact is purely symbolic...
Stevens was expressing support for laws against flag burning, but this statement only undermines his case. No harm is caused to anyone except purely “symbolic” harm, which means that the harm done is to their assumptions about how the American flag — and by extension about how America itself — is or can be viewed. Symbolic harm is “harm” done to the meaning which a symbol has and this is not a harm which the government has any power or authority to prevent.
In fact, attempts to protect people from having to see flags being burned could have just the opposite effect. With the number of flag-hostile groups dwindling, nothing presents a greater threat than passage of a Flag Amendment, which could trigger a rash of flag-burnings by political protesters of one stripe or another. Flag burning has always been a form of protest, and with so many people willing to protest bans on flag burning, no better symbol than an actual flag burning is likely to be found. After all, the United States v. Eichman case involved people who burned flags precisely to protest the Flag Protection Act, a law passed to ban flag burning.
Thus, amending the Constitution to permit bans on flag burning isn’t just a solution in search of a problem. Instead, it’s also a “solution” which will likely serve to create the problem it’s trying to solve in the first place.
