Almost like clockwork, conservatives regularly attempt to enact a constitutional amendment that would permit them to ban flag burning and various forms of flag “desecration.” They still don’t accept the fact that such activity is protected free speech, so they want to single out this sort of speech for special political regulation. If successful, though, it will just be the beginning
Americans United quotes a letter written by Patrick H. Brady, chairman of the Citizens Flag Alliance, a group involved with attempts to amend the Constitution to ban flag burning and flag desecration:
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“But this is about rights: the right of the people to protect their flag, the right of the majority to rule, the right of the people to define their Constitution. And beyond the flag, the issue spills over into the right to protect our children from pornography, the right to own property, to pray, to post the Ten Commandments and to say the Pledge of Allegiance.”
Concluded Brady, a retired Army major, “If we can recapture our flag, we will have begun a march to recapture our Constitution.”
Brady is very clear here about using the concept of “rights” in exactly the reverse of how it is used by the Constitution and in traditional American political discourse. The American Constitution contains nothing about the “rights” of majorities, but it does explicitly protect the rights of individuals to act without interference from the government — a government which would, naturally, be fulfilling the wishes of political and legislative majorities. Majorities don’t normally need “rights” protected because they already have a base of power which is adequate to protect them. Minorities are the ones who typically lack the political and legislative power necessary to protect their interests.
This is why Brady’s language is almost Orwellian in its deceptiveness: it captures an important term and employes it for a concept which is the opposite of what the term is supposed to be used for. It really is like describing war as a type of peace, night as day, and black as white. I think that Brady does this honestly, though. I think that he genuinely believes that “rights” are something which majorities can use to impose their will on minorities or on individuals. That’s what makes his position so dangerous.
Imagine, for a moment, if religious rights meant not that individuals could follow the dictates of their own conscience, but that majority religious groups could have their doctrines promoted and endorsed by the government. This is the sort of “rights” which Patrick H. Brady and others on the Christian Right have in mind when they use rights-language, and it’s the sort of language which will undermine America’s system of rights.
For many conservatives, a ban on burning or desecrating the American flag is just the beginning: it represents a first step towards taking rights away from political minorities and establishing the power of a majority to dictate the terms of public discourse. Brady talks about the “right of the majority to rule,” which in this case means the power of the majority to dictate to everyone how exactly the flag will be treated, what it will mean, and what sort of relationship one is allowed to have with the flag.
Conservatives like Brady hope that this will open the door to similar changes in other areas of law. If the majority has the power to censor certain forms of political speech, why not other speech and expression, such as pornography? If the majority is given the power to determine the meaning of the flag for everyone, why can’t it also have the power to determine the meaning and importance of the Ten Commandments for everyone?
Amending the Constitution to permit bans on flag burning or flag desecration would represent a significant change in American law because, for the first time, one of the first ten amendments would be given an exception. No longer would we enjoy freedom of speech because the majority would be given the power to censor speech which is considered politically offensive. This is not a path which we should even be thinking about going down, much less allow ourselves to take the first step on.
