Flag-burning has become a hot topic again. As much as I personally dislike the idea of desecrating our national symbol, it would seem that outlawing it would violate the precepts of the freedoms on which America was founded. Let us remember this country rebelled against a tyranny based on the idea that citizens have the right to disagree with their government and express these grievances without fear of retaliation from the government. Further, personal property rights are a major philosophical concept in America freedom. Therefore, if the flag is my own personal property and I burn it in representation of my grievances, then the basis of American freedom is in line with action.
Is this polite? No. Is this disrespectful? Yes. Is it the best way to solve my concerns? Probably not. But the issue is should it be legally outlawed. To this end, I would have to side with the 1989 SCOTUS ruling of Texas vs Johnson, which held that burning the American Flag is protected by free speech under the First Amendment.
Of course, there are several caveats to this. To begin, let's remember I have to own the item being burned. I can't go steal a flag and burn it, or set one alight at a public building. That would clearly be a criminal act regardless of whether the item vandalized were the American Banner or not. Further, the burning cannot cause damage beyond the item itself or there is the risk of arson being associated. Creating a public danger is another concern. However, the act itself, as despicable and repulsive as I find it personally, is not illegal nor should it be as a matter of legal code.
Speaking of legal code, one of the most difficult hurdles to overcome is that the U.S. Codes actually call for the flag to burned in certain cases. This is primarily when the banner is no longer in proper condition, and further that it should be done in a dignified manner. Conceptually, I believe most of us understand what that means. However, codifying it into a legal statute becomes a far more complicated issue. First, what is the legal definition of proper condition, and next what is the legal definition of dignified? Legal codification has to avoid subjectivity wherever possible - and those are going to have to list a great number of specifics, which then open up a different can of worms. Whoops, the American Legion was sued today by the ACLU because their displayed flag had one-too-many tatters. Or the opposite, not enough tatters for their Flag-Day ceremony. (Yes, burning flags is part of Flag-Day.)
“Dignified” becomes a legal nightmare as well. Imagine other activities where such a qualifier would have to be applied, then think of the issues that could come from it. Flag-burning is legal and required if it is performed in a dignified manner. Likewise driving the speed limit is legal and required if it is performed in a dignified manner. Could you imagine being pulled over by a police officer because you scowled at another driver, even though you operated your vehicle within all the rules of the road? You drove legally, just not dignified.
The point is what is right and what is clearly-definable by law are not always congruent. In fact, they rarely are. In a larger sense, this is one of the lessons I believe God wants us to understand and why the Old Testament had to be replaced with the New Testament. Law will always fail us at some level when it comes to knowing and doing what is right and proper.
In the end, I think flag-burning is wrong, but as a matter of freedom and law, I believe it cannot to be outlawed in our country. To do so opens the door for many more cures which would harm more than the disease - in my opinion. Further, I believe that many of our Forefathers would also permit its legality, despite hating the action itself. Remember, the Boston Tea Party was both celebrated and hated at the same time -- and in many ways, it was a more criminal act than this issue. George Washington condemned it, but also stated it was not surprising due to Britain's oppression.
I feel that Washington would hold a similar view on flag-burning. I believe he would state that it was not a matter of governmental oversight. But I also believe he would never permit someone who did so to join his militia, to conduct personal business with him, or to receive any social benefit which he had any say over. But he wouldn't make it a matter of law.
Other Founding Fathers I hear in my head are Thomas Jefferson: “Flag-burning neither picks my pocket nor breaks my leg.” And Patrick Henry: “I disapprove of flag-burning, but I will defend your right to do it.”
Of course, it is impossible to know what Washington, Jefferson or Henry would do or say if they lived today, but nonetheless, I believe the examples of similar issue during the early foundation of America give us great insight how to stand on the issues of today...even when those issues are personally repugnant.