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Show HINCKLEY JOURNAL OF POLITICS SPRING 2001 Alliance: he says that flag burning "teaches that...the courts, not the people, own the Constitution" (U.S. Newswire 2001). I realize that every citizen of the United States has a stake in the system of government outlined by the Constitution, but that same document explicitly outlines that "the judicial power shall extend to all cases, in law and equity, arising under this Constitution" (U.S. Constitution, Article III, Section 2), a grant which has been interpreted for 200 years to mean that the Supreme Court is the ultimate interpreter of constitutional meaning. Thus, Brady's argument is without merit: if he purports to defend the Constitution, he should recognize the right of the courts to interpret it. He also states that those who call flag burning 'speech' "demean the First Amendment and the Bill of Rights and threaten the very foundation of our Constitution as defined by our founders" (U.S. Newswire 2001). Perhaps if the founders had intended there to be a limitation on flag desecration, they would have written one in themselves. Brady's argument is without merit, and is at best an opinion. Furthermore, how does flag desecration threaten "the very foundation of our Constitution?" There is not a shred of logic or justification behind this statement. Finally, Brady appeals to the public's emotions and sense of patriotism: "our flag ignited a fire in the hearts of our patriots. Burning the flag will put that fire out" (U.S. Newswire 2001). This argument is nothing but abstraction, with no basis in reality. Metaphors and figurative speech may make for good sound bytes, but they cannot form the basis for jurisprudence, especially in an area of law so vital as First Amendment free expression. Still, opponents of flag burning have just as much right to their opinion as do flag burners. But what they must realize is that instead of subverting the intent of the Constitution and desecrating free speech rights with an amendment, there is an alternative that consecrates the First Amendment and ensures that the intent of the framers remains intact. Justice Louis Brandeis put it best when he said that as long as we have "confidence in the power of free and fearless reasoning applied through the processes of popular government" (Meiklejohn 1948, 53), we have nothing to fear from opinions we disagree with, for "if there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence" (Meiklejohn 1948, 53). Rather than clinging to misguided notions that the government can legislate respect for the flag with an amendment, those who revile flag desecration should instead try to convince the few flag burners to reconsider their position on the issue. The question is this: what is more important, the symbol of our freedom, or the freedom itself? The rights of free expression embodied in the First Amendment are likely the most important that we possess, because they open the door to innumerable other freedoms that we enjoy as Americans. Regardless of one's individual position on whether the act of flag desecration is right or wrong, the right to do so is necessary and should be welcomed as a symbol of the United States' absolute commitment to the importance of free expression. For as long as we can publicly discuss ideas, we are better equipped to find truth and govern ourselves effectively. Essentially, "the unabridged freedom of public discussion is the rock on which our government stands. With that foundation beneath us, we shall not flinch in the face of any danger" (Meiklejohn 1948, 91). The desirability of free expression is superceded only by its necessity: only through understanding the essential role free speech plays in ensuring a just order can we truly take advantage of the freedom we possess and fulfill our potential as a society. APPENDIX 1: CONGRESSIONAL VOTES ON THE FLAG BURNING AMENDMENT 1st Attempt at Amendment: 104th Congress House: Yea: 312 Senate: Yea: 63 Nay: 120 72% Nay: 36 63% H.J.Res.79. 6/28/95 S.J.Res.31. 12/12/95 2nd Attempt at Amendment: 105th Congress House: Yea: 310 Nay: 114 73% H.J.Res.54. 6/12/97 Senate: Not brought to floor for voteN/A S.J.Res.40. 2/4/98 3rd Attempt at Amendment: 106th Congress House: Yea: 305 Nay: 124 71% H.J.Res.33. 6/24/99 Senate: Yea: 63 Nay: 37 63% S.J.Res.14. 3/29/00 APPENDIX 2: GALLUP POLLS OF PUBLIC SUPPORT FOR THE FLAG BURNING AMENDMENT Date: June 1989* October 1989** June 1990* 7-9 July 1995*** Favor: 71% 65% 68% 62% Oppose: No Opinion: 25-27 June 1999*** 63% 24% 31% 27% 36% 35% 5% 4% 5% 2% 2% * Question wording: "Do you think we should pass a constitutional amendment to make flag burning illegal, or not?" ** Question wording: "Do you favor or oppose a constitutional amendment that would allow federal and state governments to make flag burning illegal?" *** Question wording: "Do you favor or oppose a constitutional amendment that would allow Congress and state governments to make it illegal to burn the American flag?" REFERENCES AllPolitics. 1999. "House OKs Constitutional Amendment on Flag Desecration," 24 June: <http://www.cnn.com/ALLPOLITICS/stories/1999/06/24/flag.de secration/> (accessed 5 December 2000). Brandenburg v. Ohio. 1969. 395 U.S. 444. Chaplinskyv. New Hampshire. 1942. 315 U.S. 568. 55 |