TIME: Almanac 1993/TIME Almanac 1993.iso/time/062590/06251012.000

Text File | 1992-08-28 | 7.6 KB | 170 lines

                                                                                NATION, Page 16

Hiding in the Flag



Washington has more important things to do than posture about
Old Glory

By WALTER ISAACSON -- Reported by Laurence I. Barrett and Nancy
Traver/Washington


    "The Congress and the states shall have power to prohibit
the physical desecration of the flag of the United States."

    -- THE DOLE AMENDMENT


    A foundering tanker spews oil off the Texas coast while
Congress dithers over a bill to create rapid-response cleanup
teams. Even the President admits the need for a budget-and-tax
compromise, but a heralded bipartisan summit has so far failed
to produce even an agreement on how large the federal deficit
really is. Flagrant political scandals -- most notably, craven
sellouts by lawmakers to the savings and loan industry -- raise
new calls for campaign reforms, but the effort is going
nowhere. The decline of the nation's schools produces gusts of
rhetoric but not one serious education reform.

    Suddenly, however, the President and much of Congress have
found a problem they are willing -- no, eager -- to tackle, a
threat apparently so dire they are scrambling to amend the Bill
of Rights to stop it: the possibility that a handful of fringe
showboats might desecrate the American flag. It is the paradigm
of the age of escapist politics. No painful economic choices
need be confronted. Considerations more complex than a sound
bite can be dismissed. And it lends itself to the manipulation
of what are in fact the deep and sincere values of a patriotic
majority understandably repulsed by the sight of Old Glory
being burned.

    A year after it struck down a Texas law barring flag
desecration on the ground that it violated the First
Amendment's protection of free speech, the Supreme Court last
week threw out a law Congress subsequently passed to circumvent
that ruling. The 5-to-4 vote was the same as before:
conservative Reagan appointees Antonin Scalia and Anthony
Kennedy joined William Brennan, Thurgood Marshall and Harry
Blackmun in ruling that even offensive forms of political
expression -- in fact, especially those offensive forms -- were
what the Constitution was designed to protect. "Punishing
desecration of the flag dilutes the very freedom that makes
this emblem so revered," Brennan wrote for the majority.

    The ruling was a lifeline for Republicans who have been
losing their cutting issues: military strength, anticommunist
vigilance, no new taxes and opposition to abortion. What
remains is the gut "values issues" that George Bush exploited
in 1988. At a Rose Garden photo-op during which he received a
statue of the Marines raising the flag at Iwo Jima, the
President professed not to be playing politics: "Amending the
Constitution to protect the flag is not a matter of partisan
politics . . . It's an American issue." While implying that
defending the Bill of Rights was not quite American, Bush left
it to others to make the partisan connections. "That's what
he's got Dole for," said one aide.

    Bob Dole, the Senate's Republican leader, went right to
work. Holding a small flag as he stood in front of the White
House, he noted that any Democrat's opposition to the amendment
"would make a good 30-second spot." In an unusual interjection
in his dissenting opinion, Justice John Paul Stevens had taken
a shot at such cynicism: "The integrity of the symbol has been
compromised by those leaders who . . . seem to manipulate the
symbol of national purpose into a pretext for partisan disputes
about meaner ends."

    The eruption of the flag controversy is a glaring symptom
of a distressing change in American politics over the past
decade: the way that pit-bull negative ads have led to
simplistic, visceral posturing by candidates at the expense of
more substantive approaches to real problems. "It's a good
issue to define your opponent," said Republican strategist Ed
Rollins. "If your opponent is for flag burning, he's got to go
through a very sophisticated explanation."

    There has not, however, been a clean partisan division on
Old Glory. Many Democrats voted for the federal law against
flag burning. Although a convincing case can be made that a
statute is more palatable than a constitutional amendment,
those who favored the first but now oppose the latter will have
trouble arguing that their stand is one of pure principle.
Other Democrats are joining the fight for an amendment, some
out of sincere conviction, others out of electoral expediency.
On the other side, Gordon Humphrey, a rock-ribbed conservative
from New Hampshire who is not seeking re-election, is among the
Republicans who oppose the amendment. "I find it trivializing,"
he says. "I just don't like tampering with the Bill of Rights."


    Nations as diverse as West Germany, Israel, Argentina, South
Africa and the Soviet Union have laws prohibiting desecration
of their flags, and in many nations that do not (such as
China), it may not be wise to test the issue. Even in the U.S.,
as Bush noted last week, "the law books are full of
restrictions on free speech." It is not permissible to yell
fire falsely in a crowded theater, as Oliver Wendell Holmes
pointed out, and likewise it could be illegal to ignite a flag
in one. Yet according to Duke University law school professor
Walter Dellinger, "the flag amendment would be the first real
instance in which political expression is being suppressed
because of objections to the message being communicated."

    Despite the way a flag-protection amendment threatens to
trivialize politics, its opponents would be making a dangerous
mistake to think that the sentiments it reflects are trivial.
The Republican resurgence that began in 1968 has been based on
a widely shared feeling that America's social fabric is being
frayed by the denigration of mainstream values by fringe groups
and their apologists. Flag burning stands out as a most
egregious example of civil sacrilege, and inflammatory
television shots of publicity seekers like the ones who declared
last Thursday "Flag Desecration Day" -- it was actually Flag
Day -- understandably heighten popular resentment.

    Paradoxically, the willingness to scale back First Amendment
permissiveness comes when the divisions in American society
seem to be at a 25-year low. In the 1960s the battle between
flag wavers and flag burners represented a traumatic schism
over the Vietnam War and national morality in general. Even in
those incendiary times, there was never a serious effort to
pass a constitutional amendment. Now the issue has become, so
to speak, less burning. With the ideological battles at home
in abeyance and challenges from abroad less severe, it would
seem that the nation would feel more secure about the glorious
discomforts that come from tolerating forms of free speech --
even when they are as offensive as the antics of flag burners
or the lyrics of 2 Live Crew or the photographs of Robert
Mapplethorpe.

    Next year the U.S. will celebrate the bicentennial of the
First Amendment and the nine others in the Bill of Rights that
serve as the nation's soul. They form, in Senator George
Mitchell's words of last week, the "most concise, the most
eloquent, the most effective statement of individual liberty
in all of human history." Not in 199 often turbulent years has
it been deemed necessary to append any "yes, but" footnote. To
do so now would do more to desecrate the flag than any
misguided arsonist ever could. For without those liberties for
which it stands, the Stars and Stripes would become little
more than colors on a cloth.