A new national pastime: tinkering with Constitution


WASHINGTON -- The Constitution amenders are at it again. Having failed to get their amendments requiring a balanced federal budget and congressional term limits through Congress, they are turning their sights on the momentous issue of flag-burning. Will eating Big Macs be the next target?

A House Judiciary subcommittee, voting on party lines, has sent the full committee a proposed amendment by the Republicans that would bar "physical desecration" of the star-spangled banner, thus countering a 1989 Supreme Court ruling that laws prohibiting such action violated the First Amendment's guarantee of free speech.

The amendment route comes after attempts failed in Congress in 1989 to write legislation that would pass judicial muster. A leading critic was Sen. Bob Kerrey, the Nebraska Democrat who lost a leg serving as a Navy Seal in the Vietnam War. He can be expected to raise his persuasive voice on this particular issue again if it is approved by the House in a vote anticipated next month and is sent to the Senate.

In a recent comment, Kerrey said that while he, too, dislikes flag-burning, "the community's revulsion at those who burn a flag, and the action that follows as a consequence of that revulsion, is all that we need. It has contained the problem without the government getting involved."

The amendment is the kind of proposal that on the surface is hard to be against, like motherhood and Cal Ripkin breaking Lou Gehrig's longevity record. But it taxes the notion that the work of the Founding Fathers ought not to be messed with except for the most urgent and imperative reasons.

Yet the likelihood of congressional approval in these days of conservative control cannot be dismissed out of hand, even with the two-thirds vote required for a constitutional amendment. Supporters in the House and Senate claim to be close to achieving that margin, although no action has been taken on the Senate side.

Although a constitutional amendment passed by Congress is not subject to presidential veto, the presence of such a congressional act could be a potential political problem for President Clinton in his re-election campaign next year. Taking the standard liberal position against it could give conservatives a fresh target for reminding voters of his controversial draft record.

This idea may seem far-fetched until it is remembered how effective the presidential campaign of George Bush was in 1988 using a flag issue against Michael Dukakis as a means of questioning his patriotism. Dukakis as governor of Massachusetts had vetoed a state law requiring public school teachers to lead their classes in the Pledge of Allegiance. He cited constitutional grounds, but that didn't stop the Bush campaign from making hay with the issue.

So Clinton should hope that liberals in Congress are able to sidetrack this latest attempt to use the amendment process for this extremely narrow and frivolous reason. One committee member, Democrat Jose Serrano of New York, has called the flag-burning amendment "silly beyond belief," and that about says it.

As in the failed efforts to amend the Constitution to require a balanced budget and congressional term limits, supporters cite strong public backing. "Love of the flag certainly isn't dead in our country," says Republican Rep. Gerald Solomon of New York, as if opposition to this particular scheme constituted a statement of hostility toward the national symbol. "Eighty percent of the American people want this amendment," he notes, adding that "burning the flag is not speech or expression; it is a hateful tantrum." The Supreme Court in 1989, however, disagreed on the point.

This business of rushing to the constitutional amendment route every time people can't get what they want through the normal legislative process is akin to the use of the initiative in states like California. That process enables voters through petitions to place measures on the ballot that, if passed, become law.

While the process has produced good results in some cases, more often than not it has fallen prey to moneyed special interests and much questionable law, often challenged in the courts. The California initiative barring welfare aid to illegal aliens is only the most recent case in point.

The Constitution has been amended only 17 times after the original 10 amendments of the Bill of Rights were ratified nearly 204 years ago, and for good reason.

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