"What’s Wrong With the Flagburning Amendment,"
by Prof. Eugene Volokh, UCLA School of Law
(a version of this op-ed was published in the L.A. Times, July 18, 2001)
"Congress shall have power to prohibit the physical desecration of the flag of the United States, and the flying of the Confederate flag."
OK, so that’s not exactly how the proposed flag protection amendment reads -- I’ve added the Confederate flag phrase. But this little thought experiment helps show that the flag protection amendment is a bad idea.
After all, burning the U.S. flag and flying the Confederate flag are similar in many ways. Some people argue that flagburning shouldn’t be protected by the First Amendment because it isn’t "speech." Well, burning one flag and waving another are pretty similar on that score. I think both are traditional terms in our political language, and should be constitutionally protected; but if I’m wrong, then both should be unprotected.
Of course, burning the U.S. flag deeply offends many people. But so does waving the Confederate flag, even when it’s done by individuals and not by state governments. Many American boys died defending the U.S. flag -- and many of them died fighting against the Confederacy. Burning the U.S. flag is often an anti-American symbol. Likewise, the Confederate flag was a symbol of treason and rebellion against the lawful American government.
It’s true that many people see the Confederate flag as not just as a symbol of the Confederacy, and of a slave state rebellion prompted by the election of an anti-slavery President: They also see it as a symbol of other things, such as Southern pride. But likewise some people burn the U.S. flag not because they hate America, but only because they want to protest what they see as the American government’s errors. Like most symbols, flagburning and flagwaving often mean subtly different things to different people.....etc.
