IT WOULD TAKE AMENDMENT TO BAN FLAG BURNING

The House of Representatives has again overwhelmingly passed and sent to the Senate a constitutional amendment banning the act of burning the American flag. In the upper chamber in recent years, it has fallen short of the necessary two-thirds margin it wins in the House. The whole controversy flared in 1989 after the U.S. Supreme Court ruled, 5-4, that burning Old Glory is "expressive conduct" within the First Amendment guarantee of freedom of speech.

We view that ruling as wrongheaded, inasmuch as the sacrosanct First Amendment explicitly protects speech -- not conduct. A generation ago the high court started down this road toward including all conduct deemed "expressive" as within the protected sphere where, for example, it has been held to guarantee a nude dancer's "right" to free expression through her "art." Once the court has taken us to this extreme and hitherto unforeseen result, it leaves the elected representatives of the people no alternative, if they seek to protect Old Glory, than to pass such a constitutional amendment.

Ordinarily we look askance at all-too-frequent efforts to solve every problem with a constitutional amendment. In this case, however, should it pass, it might just serve as a useful corrective to courts inclined to construe all "rights" too broadly, without regard for the legitimate interest of the community in revering and preserving a uniquely unifying symbol of American freedom and nationhood.