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Hands Off Madison's Document
[FINAL Edition]
The Washington Post (pre-1997 Fulltext) - Washington, D.C.
Author: Will, George F
Date: Jun 30, 1989
Start Page: a.23
Section: OP/ED

Their constitutional doctrine (by now it really is this, whether the justices know it or not) is that any behavior"There is no flag-burning problem sufficient to justify the radical step of amending the Constitution." expressing an attitude that can be given a political coloration is protected "expression." A congressman wonders if fornication at high noon in Times Square is protected. The answer is that fornication would blend into the background there, but would be protected if the participants said they were trying to shock the bourgeoisie into a higher consciousness.

There is no flag-burning problem sufficient to justify the radical step of amending the Constitution. And conservatives should be especially wary of using amendments as gestures, even to assert that communities, too, have rights. A flag-protection amendment is a gesture on behalf of communities' rights generally. When liberals join in loading the document with gesture-amendments (ERA was one), it will become as long as "Moby Dick."

No words on parchment will stymie litigious individualism. A change of constitutional words without a change of judicial and other minds will be unavailing. Go ahead, enact this amendment: "Nothing in this Constitution shall be construed to prevent states from protecting the flag from desecration." Then stand back. There will be an avalanche of litigation to determine if the use of the flag in advertisements, on clothing, with political slogans spray-painted on it, dragged in the dirt, or whatever, constitutes "desecration."

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