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Let voters decide on flag protection


The Senate is expected to vote on a constitutional amendment next week to allow laws punishing the burning of the American flag. The House approved it last year, and the Senate Judiciary Committee has sent the measure to the floor. It needs 67 votes if all senators participate, and supporters are within striking distance of that number.

It would be the first time in the nation's history that Congress has proposed an amendment to curtail First Amendment rights.

Freedom of speech is a bedrock principle of our constitutional system and should be restricted only after careful deliberation. That is why Congress should do something it has done only once: choose the convention method of ratification.

Article V of the Constitution requires that amendments be ratified by 38 states. It gives Congress the authority to decide whether amendments will be approved by state legislatures or by state conventions whose delegates are elected by the people.

Conventions have been used for only one amendment. In 1933, Congress worried that state legislators, who disproportionately represented rural and often dry counties, would not approve the 21st Amendment to repeal prohibition of alcohol.

With no precedent and little guidance from Article V, states were not sure at first how to proceed. But eventually, 43 states provided for conventions, with 39 approving convention laws within four months of the amendment's submission by Congress.

In nearly every state, candidates ran on a slate in favor of or opposed to the amendment. That placed the focus on whether alcohol should be legal and not on the candidates seeking election to the conventions.

It took only about nine months from submission of the amendment to approval by a sufficient number of states, one of the fastest ratifications in the nation's history. Twenty-one million voters participated in the elections to choose delegates to the conventions, with 73 percent showing their support by electing candidates favoring repeal.

As for the proposed flag amendment, if Congress were to give ratification to state legislatures, the debate would be largely confined to legislative chambers. People would be able to write or call their legislators, but citizens would not be directly involved in the decision.

However, if a slate of delegates were on a ballot seeking election to a state convention, the public could participate in a robust discussion of whether free speech rights should be modified by the proposed flag amendment.

States would have substantial discretion over how such delegates would be chosen. If candidates run on slates committed to a position on the proposed flag amendment, the debate would be confined to the campaigns. Delegates who honored their commitments would simply show up and vote.

But imagine how much more engaging the debate would be if states allowed at least some delegates to run on unpledged slates, as eight states did in 1933. If that happened, the debate would continue at the convention itself. If enough uncommitted delegates were elected, the conventions would become deliberative bodies that consider what freedom of speech means to this country and whether a flag amendment should be added to the Constitution.

There is obviously a downside to state conventions. The campaigns probably would have some of the most unappealing features of our modern electoral system. Substantial sums of money would be raised and spent by both sides, and TV and radio ads would exaggerate and distort the consequences of approving or rejecting the proposed flag amendment.

But for something as important as modifying the First Amendment, the American people should be directly consulted. That can be done only through ratification by conventions.

The Constitution would be in no danger from these conventions. The only issue before the delegates would be to approve or reject the amendment. They could not propose other changes.

In an era in which Internet technology allows citizens to communicate with a potentially large audience, and with TV networks providing coverage of the elections and conventions, the nation could debate whether the Constitution should, for the first time, be changed in this way.

Such a national discussion, ironically, would honor the First Amendment at the very time the American people consider whether to curb the freedoms it protects. An amendment that has done so much to safeguard personal liberty and that occupies such a special place in our constitutional system deserves no less.

Richard Labunski is a journalism professor at the University of Kentucky and the author of "James Madison and the Struggle for the Bill of Rights." His e-mail is

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