Flag Burning Redux

If this is an election year, it must be time to amend the Constitution.

WITH CONGRESSIONAL elections coming, the Republican leadership has found a pivotal issue. Terrorism? Hardly. Entitlement reform? Don't be silly. We're talking about the grave threat to America known as flag burning. Yes, that election-year favorite is back: the proposed amendment to the Constitution of the United States allowing Congress to criminally punish the "physical desecration" of the American national banner. If you haven't noticed a rash of flag-burning incidents sweeping the nation that's because, well, there isn't one. But that doesn't stop Republicans from trotting it out as a more-patriotic-than-thou card.

They are, as always, close to having the votes to send it to the states for ratification. The House of Representatives has passed the measure and the vote will be tight in the Senate, where the Judiciary Committee approved the amendment 11 to 7. We hope the amendment will fall short of the needed two-thirds majority on the Senate floor; it's depressing enough that a majority of senators will support it.

The amendment would soil the First Amendment's command that Congress shall "make no law . . . abridging the freedom of speech." Flag burning is an odious form of expression. But there are lots of odious forms of expression the First Amendment protects: Holocaust denial and swastikas, racist rants and giant Confederate flags, hammers and sickles. The amendment's power is in its self-confident sweep: Speech, including expressive acts, will not be censored. Government cannot punish ideas. Members of Congress who would protect the flag thus do it far greater damage than a few miscreants with matches.