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Show THE CONSTITUTIONALITY OF FLAG BURNING: HATE OR FREE SPEECH? AN ANALYSIS OF TEXAS v. JOHNSON Nicholas Barker 1948, 88). Citizens cannot govern themselves based on flawed information, because this allows biased outcomes that make them subservient to those people whose opinions dominate the public sphere. This is unacceptable, given that "under the compact upon which the Constitution rests, it is agreed that men shall not be governed by others," but "that they shall govern themselves" (Meiklejohn 1948, 89). This constitutional obligation provides for the public that "no idea, no opinion, no doubt, no belief, no counterbelief, no relevant information, may be kept from them" (Meiklejohn 1948, 89). Only by considering all opinions when making decisions on electoral and public policy matters can we be assured that American government is operating at its fullest potential, and that the Constitution's pronouncement of popular sovereignty is being realized. In this line of reasoning, Justice Brennan's assertion that "the flag's deservedly cherished place in our community will be strengthened, not weakened, by our holding" (Texas v. Johnson 1989, 419) is correct: the flag as the symbol of the American system can only be strengthened by a decision that protects the public's obligation to keep that system working through the process of self government. For Meiklejohn, "the essential point is that we are pledged together to create a society in which men shall have the status of governors of themselves." We must move as a body critical of its own elements, but not hostile towards them: "not with bayonets behind, but purposes ahead. And if we fail in that...without regret, without scruple, we have abandoned the Constitution" (Meiklejohn 1948, 82). What then, is the best way for American society to make progress? "We must accept and applaud the assertion that the Constitution is an experiment," in which our plan of government, being based on imperfect knowledge, "must be forever open to amendment, forever on trial," with no one knowing "how slow or how quick, how superficial or how radical, those changes will be" (Meiklejohn 1948, 85). One might argue that this justifies a constitutional amendment to prohibit flag desecration, as a perfectly legitimate "evolution" of the Constitution. The point, however, is this: to single out and ban one form of expression forever stifles development of the Constitution in the area of free speech. We the people would cease to have sovereignty over ourselves in that area, antithetical to the proclamation of self-governance contained in the Constitution. The solution lies in the free exchange of ideas, what Justice Oliver Wendell Holmes first termed 'the marketplace of ideas.' This principle tells us that the only truth we can rely on "is that which we win for ourselves in the give and take of public discussion" (Meiklejohn 1948, 86). Even if Chief Justice Rehnquist believes that Johnson's act "was no essential part of any exposition of ideas" (Texas v. Johnson 1989, 430), the chance that in witnessing the act one might be compelled to reconsider her or his beliefs, possibly resulting in a shift of opinion, means that a display of opinion such as Johnson's may not be prohibited. In the marketplace of ideas, "unwise ideas must have a hearing as well as wise ones.. .un-American as well as American," and these ideas "may be expressed, must be expressed, not because they are valid, but because they are relevant" (Meiklejohn 1948, 26-7). If anyone seriously entertains these ideas, we the voters need to hear them, for "to be afraid of ideas, any idea, is to be unfit for self-government" (Meiklejohn 1948, 27). CONCLUSION The Court made it clear in Texas v. Johnson that the Constitution allows flag burning as an acceptable form of symbolic speech. Although some in Congress believe that they are justified in changing the Constitution to fit their beliefs, I disagree. Proposing any amendment to the Constitution, even one to prohibit flag desecration, may be legitimate: but by any standard which values freedom, tolerance, diversity, limited government, truth, the fulfillment of human potential, government by the people, the notion of "banning any type of free speech that does not cause imminent harm" is unintelligible. I have shown that a ban on flag desecration would not be in accord with a liberal-democratic approach to civil liberties. The application of Mill's analysis shows that banning flag desecration conceals the truth by circumscribing what we can discuss, and concerning symbolic speech, how we can discuss it. Meiklejohn's arguments demonstrate that if we are to govern ourselves, we must not only tolerate but also embrace the opinions of others, for only in having a more complete understanding of the truth can we be effective in politics. Given all this, it seems obvious that Americans should tolerate flag burning as a form of free expression. In addition, arguments supporting a right to desecrate the American flag find their basis in logic and sound legal theory, whereas arguments supporting a ban on flag desecration usually rest on appeals to emotion and unbridled patriotism, and are for the most part devoid of reason or legal justification. After his recent introduction of the flag amendment, Utah Senator Orrin Hatch supported his position, saying "it is time for us to make unequivocally clear that certain behavior in the country is and should be recognized as wrong and punishable by law" (Salt Lake Tribune 1999, Al). Let us examine this statement: Senator Hatch believes flag desecration is "wrong," a normative opinion without bearing on whether it should be regarded as legal or illegal, a question which was settled in Texas v. Johnson. He continues: "by passing the flag protection constitutional amendment, we will reaffirm the very basis of the Constitution" (Salt Lake Tribune 2001, Al). My response to this is, "how so?" Nowhere in the Constitution are the American flag or restrictions on free speech mentioned, and therefore there is no basis in the Constitution for banning flag desecration. Consider arguments by Major General Patrick Brady, chairman of the board of directors of the Citizen's Flag 54 |
