Concerning geese and ganders

Eugene Volokh reports that the anti-flag-burning amendment is about to rear its ugly head again, and asks an interesting question: if we’re going to amend the Constitution to allow the Congress to ban the burning of the American flag, why not allow it also to ban the flying of the Confederate flag?

Eugene’s argument that the two acts are importantly analogous seems convincing to me, though, as the preacher said, I could teach it round or flat. The act of burning seems more immediately violent, expressing a kind of hatred that is only implicit in flying the Stars and Bars. (Someone might fly the Confederate flag because he cherishes the memory of his great-great-grandfather who fell heroically at Chancellorsville, without bearing any animus to anyone; it’s harder to tell the same sort of story about burning the Stars and Stripes.)

Of course, Eugene’s intention is to discredit the whole idea of a Constitutional amendment. I have to admit to having more sympathy for the anti-flag-burning cause than even a former ACLU member ought to have, and I would have been reasonably content if the courts had found a way to uphold the constitutionality of the flag-burning statutes. My revulsion against the proposal for an amendment stems mostly from the inconsequence of the issue involved. The Constitution is too sacred a text to have trivia scribbled in its margins; an anti-flag-burning amendment would be a sort of — well, desecration.

But Eugene’s thought-experiment might be put to a different use: as a proposed amendment to the resolution proposing the Constitutional amendment. I know it could be offered in committee; I don’t know what the rules are for floor action. But it would be lovely to make everyone in Congress take a stand on whether it ought to be OK to sport a symbol of the greatest act of treason in the history of the Republic. Now all we need is someone in each house rude enough to propose it.


A reader questions my use of the term “treason.”

Treason against the United States, shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort.

— Art. 3, Sec. 3

The Confederate flag was invented for the purpose of “levying war” against the United States. Q.E.D.

Author: Mark Kleiman

Professor of Public Policy at the NYU Marron Institute for Urban Management and editor of the Journal of Drug Policy Analysis. Teaches about the methods of policy analysis about drug abuse control and crime control policy, working out the implications of two principles: that swift and certain sanctions don't have to be severe to be effective, and that well-designed threats usually don't have to be carried out. Books: Drugs and Drug Policy: What Everyone Needs to Know (with Jonathan Caulkins and Angela Hawken) When Brute Force Fails: How to Have Less Crime and Less Punishment (Princeton, 2009; named one of the "books of the year" by The Economist Against Excess: Drug Policy for Results (Basic, 1993) Marijuana: Costs of Abuse, Costs of Control (Greenwood, 1989) UCLA Homepage Curriculum Vitae Contact: