Aren't you embarrassed? Weary and embarrassed? For the third consecutive summer, we're shouting at one another about the flag. Sen. Orrin Hatch (R-Utah) says that a nation that doesn't "protect" its flag (from what?) is surely on the decline. The truth is surely the opposite: only a nation feeling insecure about itself and its place in the world would succumb repeatedly to such a frenzy of self-righteousness about the national banner.
But supporters of a constitutional amendment to ban flag burning see it as a way of reviving the antiliberal Kulturkampf. And opponents of such an amendment keep struggling because ... because ... why? Only William Safire (and it's easy for him as a conservative) has had the courage to criticize "flag worship" as such. Most opponents emphasize their own love for the flag and hatred of flag burners.
And yet some politicians, mostly Democrats, resist the flag amendment. Why? This is a question every supporter of the amendment should be forced to answer. What do they think is the motive of opponents? God knows there is no political advantage to be gained. Is it a matter of insufficient love for the flag? If opponents merely didn't care about the flag, didn't love it enough, they would hardly risk their necks opposing a law to protect it. Either opponents of the amendment must actively hate the flag and want to see it burned -- something supporters like to imply but is too preposterous to say outright -- or they are at worst guilty of a mistaken stand on principle: they love freedom too much. Which is it?
The question is worth pressing because not every flag amendment supporter is as coolly cynical about it as President Bush. It must be almost torture for someone with as strong a sense of the absurd as Sen. Bob Dole, the designated demagoguer, to have to wax indignant about the peril to the nation of flag burning day after day with a straight face. He almost lost it recently in the Roosevelt Room, waving a tiny flag in honor of Bush's birthday.
Some supporters need intellectual cover. Although most politicians supporting the amendment are content with patriotic boilerplate, a few -- maybe even enough -- need a serious rationale to clothe their nakedness as they proceed to enact the first-ever exception to the Bill of Rights. They need to believe they are not amending those rights, just the Supreme Court's misinterpretation of them.
The clothing of choice seems to be the notion that flag burning isn't "speech" at all. Dole says, "This is not speech. This is malicious conduct." Robert Bork, in his book "The Tempting of America," opines that anti-flag-desecration laws are not aimed at proscribing "the idea expressed" but only "the mode of expression."
The speech/conduct distinction is a staple of First Amendment theological debate. The question usually is how much the government can infringe expressive conduct while serving some legitimate purpose having nothing to do with what is being expressed. For example, can it ban all leafleting in the name of reducing litter? The courts would probably say no. On the other hand, it can forbid the use of bullhorns in the middle of the night.
As constitutional scholar John Hart Ely has explained, every act of communication -- even talking, even writing, even semaphore (flags) -- is both speech and conduct. What matters is the government's purpose in proscribing the conduct. Is it to curtail expression? In this case, clearly yes, though the past year has seen vast amounts of brainpower expended denying the obvious. You cannot separate the message from its "mode of expression"; it is precisely the extra punch provided by this particular mode of expression that leads people to want to make it unavailable.
The four dissenters in U.S. v. Eichman, this year's Supreme Court flag-burning opinion, miss the point here. They note that burning the flag may convey any number of messages, and they reason: "Thus, the government may ... protect the symbolic value of the flag without regard to the specific content of the flag burners' speech." But whatever the message may be, it is a message of dissent from that symbolic value. If a flag is burned in secret, that is no threat to the flag's symbolic value. It is only when a flag burner is communicating a message that the flag's symbolic value is in any way affected.
Dissenting in last year's flag case, Chief Justice Rehnquist denied that flag burning communicates anything at all. "Flag burning is the equivalent of an inarticulate grunt or roar." If so, the same is true of flag flying. One message of flag burning is: Whatever you mean by flying the flag, I mean the opposite.
If "inarticulate grunt" describes anything in the flag debate, it is the rhetoric offered by President Bush and other politicians in support of this preposterous and humiliating amendment. Many serious people, elected officials and others, have followed the Bush "cultural values" caravan for the past couple years, stifling their doubts and even supplying fancy intellectual justifications for the cheap politics. There are none left. Now it's testing time for those people.