Testimony of Norman Dorsen, Stokes Professor of Law at New York University, Against the Flag Desecration Amendment

Testimony of Professor Norman Dorsen
Stokes Professor of Law, New York University
Co-Chairman, Emergency Committee to Defend
the First Amendment
before the
Subcommittee on the Constitution
Committee on the Judiciary
United States House of Representatives

Mr. Chairman, distinguished members of the subcommittee:

I am testifying today on behalf of the Emergency Committee to Defend the First Amendment, the sole purpose of which is to oppose a constitutional amendment to permit either the United States or the States to outlaw flag desecration as a method of protest or expression. I have been a co-chair since the Committee was founded in 1989. The other co-chairs of the Committee are William Reece Smith, Jr., senior partner of the Tampa, Florida, law firm of Carlton, Fields, Ward, Emmanuel, Smith & Cutler and a former president of the American Bar Association, and Michael W. McConnell, Professor of Law at Utah Law School and a former official in the Reagan Administration. Earlier co-chairs of the Committee were the late Erwin N. Griswold, former U.S. Solicitor General and former Dean of Harvard Law School, and Charles Fried, also a former U.S. Solicitor General and now a judge of the Massachusetts Supreme Judicial Court.

I will briefly note my background. After graduation from Harvard Law School in 1953, I performed military service as a first lieutenant in the Army, serving in the office of the general counsel to the Secretary of the Army. I also was a law clerk to Justice John Marshall Harlan on the U.S. Supreme Court. I practiced in the law firm of Dewey Ballantine in New York City before my appointment in early 1961 to the faculty of New York University Law School, where I have since taught continuously. From 1969 to 1991 I was general counsel and then president of the American Civil Liberties Union, and I am currently chairman of the board of the Lawyers Committee for Human Rights and president of the U.S. Association of Constitutional Law. But I testify today solely on behalf of the Emergency Committee to Defend the First Amendment.

The issue of whether to amend the Constitution to permit criminal punishment for flag desecration has been before the Congress and the country several times since the Supreme Court held, in the 1989 case of Texas v. Johnson, that such punishment violated the First and Fourteenth amendments to the Constitution. But the fundamental issue has not changed. It is, very simply, whether we protect the flag or the Constitution. We cannot do both. That is the reality and, at bottom, why the Emergency Committee -- composed mainly of conservatives and moderates -- urges the defeat of the Resolution before you.

Of course the flag is a revered national symbol that properly stirs deep emotions and loyalties. And of course the Congress has the power to propose a constitutional amendment to the States for ratification that would prohibit its desecration. But such an action is both unnecessary and unwise.

It is unnecessary because there is no apparent loss of esteem for the flag based on the extremely few incidents in which individuals have chosen to physically abuse the flag in the course of political protest. It is also unnecessary because existing laws are ample to punish incitements to riot or breaches of the peace caused by flag burning or other acts of desecration.

An amendment would be unwise for several reasons. Initially, there will be uncertainty and confusion over just what the amendment prohibits. In an era when the flag is used, not always tastefully, for commercial purposes and on a variety of festive occasions, it is a good bet that prosecutors and courts will be kept busy trying to determine just what a "flag" is and to sort out what constitutes "desecration" from what doesn't. For example, would a flag patch on dusty blue jeans or a flag on a delectable Fourth of July cake be punishable? Once the criminal law became involved, these would not be frivolous questions for many people.

The most important reason that the proposed amendment should be rejected is that it compromises the principle of unfettered political expression that is a cornerstone of American liberty, and it would do so in an unprecedented way -- by placing a constitutional limit on the substance of the Bill of Rights for the first time in more than 200 years. One of the glories of our form of government is its tolerance for expression that other countries would ruthlessly punish. We urge the Congress not to dilute this precious attribute of our constitutional system.

As the Supreme Court said so well in the Johnson case, and again in U.S. v. Eichman the following year, to punish those who desecrate the flag for political or social purposes would violate "the bedrock principle underlying the First Amendment... that the Government may not prohibit expression of an idea simply because society finds the idea offensive or disagreeable." The Court cited 13 precedents that supported this fundamental proposition.

I understand the contrary argument. It is that the flag is special and that to permit its physical abuse would weaken its symbolic effect. When this contention was made to the Supreme Court, Justice Antonin Scalia responded directly. "Not at all," he said, when somebody does that to the flag it becomes "even more a symbol of the country." Justice Scalia is the leader of the conservative wing of the high court. When he and Justice Anthony Kennedy joined the Johnson and Eichman opinions, they understood that punishment of those who use the flag this way is not "conservative"; to the contrary, it is inconsistent with the Nation's deepest values, which conservatives traditionally support.

Indeed, one can responsibly suggest that those who would make the flag into an icon are veering close to idolatry because the concept of "desecration" applies only to religious objects and not to other things, no matter how justly admired. Indeed, an article in the journal Christianity Today made exactly this point when it opposed efforts to make the flag "sacred" although it was not a religious object.

There is another reason why the proposed constitutional amendment is unattractive to many conservatives. Conservatives do not tinker with fundamental law whenever a segment of public opinion -- even a large segment -- becomes exercised about an issue. Not counting the Bill of Rights, which was ratified in 1791 as part of the original pact leading to the Constitution, only 17 amendments have been added to it and very few of these reversed constitutional decisions of the Supreme Court. To depart from this tradition now, when there is no genuine crisis or even a serious problem, would be an extraordinary act that could lead to unpredictable mischief in coming years.

In commenting on the flag desecration amendment that was proposed in 1989, the late Erwin Griswold observed that when public pressure would drive lawmakers to imprudent action, "the situation calls for statesmanship, the same statesmanship shown in Philadelphia in 1787 when the Founding Fathers drew up the Constitution." Dean Griswold aptly referred to Chief Justice Harlan Fiske Stone's wise caution that at such times we should rely "on the `sober second thought of the community' in order to avoid a great mistake."

Members of the Subcommittee, I respectfully urge you to follow Dean Griswold's advice and not seek a quick fix for a non-existent issue. This is a time for leadership to preserve our Bill or Rights from the first amendment in its history. As a Texas Representative said when this issue was presented in 1990, "I do love the flag because it symbolizes the United States, but I love the ideals put into words by the U.S. Constitution even more than the flag." Or as a Nebraska Representative said the same year when he finally decided to oppose the amendment, "I don't want my tombstone inscription to be that I supported an amendment to weaken the Constitution."

The greatest patriotic act you can perform on this issue is to resist the easy path and stand loyally by the Constitution and Bill of Rights by defeating this unwise and unnecessary amendment.

Thank you very much.