There are those in (and out) of Congress who have expressed the well-meaning but incorrect belief that the American flag would be best protected by a constitutional amendment forbidding its desecration (a vote for such an amendment came up one vote short Tuesday in the Senate).
Because these advocates seek to protect our flag, it is obvious why I describe them as well-meaning. Less obvious is why I describe them as incorrect.
To understand that, let us imagine what America would look like if those supporting the flag protection amendment succeeded.
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Initially, we'd all feel good, believing that our precious flag had been protected. But, long term, we'd all be worse off.
First, such a constitutional provision would likely increase rather than decrease the number of flag burnings. Those readers old enough to recall 1990 will remember that after Congress passed the Flag Protection Act in the wake of Texas v. Johnson (the U.S. Supreme Court decision constitutionalizing the right to burn the flag) we suffered through a spate of flag burnings. But once the Supreme Court reaffirmed the constitutional right to destroy the flag, the burnings stopped.
Why was that? Largely because the flag burners are trying to highlight American hypocrisy, claiming that the United States isn't really as free as it claims to be. With the specter of their own prosecution on the horizon, what better way to make the point?
When the court says: Go right ahead -- in this country you are free to burn the flag -- the flag burner has suddenly been deprived of his propaganda. Consequently it is not surprising that constitutionalizing the right to burn the flag, has virtually eliminated that despicable practice.
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But suppose for a moment that my observations are wrong, and that passing the Flag Protection Amendment actually would reduce, rather than increase, the number of such burnings. I would still oppose the amendment for this reason: passing it would protect the body of the flag, at the cost of its soul.
The soul of the flag is the freedom for which it stands. And that would be destroyed at the flag burner's trial.
He would explain that he destroyed that great icon of American freedom because he didn't believe in it. Our answer would be that he can't do that, because we value our symbol more than his right to destroy it.
That argument would make us look exactly like governments we despise.
Iran, for example, sought to hunt down and punish author Salman Rushdie for writing a book called "The Satanic Verses," which portrayed Islam in an unfavorable light.
Other Muslim countries have sought retribution against the so-called Danish cartoons, again for displaying Islam in an unfavorable light.
And who can forget the Communist Chinese repression against those who sought to place a statue of liberty in Tiananmen Square.
But we are supposed to be different. In the immortal words of Lee Greenwood's classic patriotic anthem: "… the flag still stands for freedom and they can't take that away."
But freedom isn't free. As those who have gone before us have noted, eternal vigilance is the price of freedom.
If we turn away from that teaching, and allow our flag to become symbolic of a country that prosecutes those who trample on our icons, we help make the desecrators' anti-American propaganda more effective.
Thus we are faced with the ultimate irony. To protect the soul of our flag, we have to allow those we despise to destroy its beloved body.
It is an irony with which we should be comfortable. First, because we know that allowing the flag to be destroyed makes it less likely to actually happen. And second, because if it does happen, we destroy the power of the protestor's argument by the very act of letting him do it.
So, on Independence Day, let us all vow never to allow political expediency to cause us to emulate the governments that we have universally condemned. Let us instead vow to take both our freedoms and our flag seriously.
Arnold H. Loewy is the George Killam professor of criminal law at the Texas Tech School of Law. He is the Graham Kenan professor of law, emeritus, at the UNC School of Law.
