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Jewish World Review May 30, 2000 / 25 Iyar, 5760

Nat Hentoff

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Reining in the majority's will -- In "The Federalist Papers," Alexander Hamilton saw no need for what came to be the Bill of Rights, which was added to the Constitution. All our rights, he said, "must altogether depend on public opinion... the general spirit of the people."

This insistence that the majority is right is manifested by the willingness of most Americans to deprive a 6-year-old boy of freedom so that he can be with his father in a communist dictatorship.

Consider also the recent defeat, once again, of a constitutional amendment to protect the American flag from physical desecration.

That March 29 vote is old news by now, but this difficult victory over the will of the American majority -- and the 49 state legislatures that were ready to ratify the amendment had it been submitted to them -- ought to be revisited. There will be similar clashes between the passions of the majority and a small, brave company such as the 37 Senators who stood in the way of the flag amendment in order to protect the Constitution.

Sen. Orrin Hatch, one of the principal champions of the flag measure, pledges it will return to the Senate floor because "it is illogical to ignore the feelings of the overwhelming number of Americans." It surely will return, and the American Civil Liberties Union will again lead the fight against it.

During the Senate debate in March, the opposition cited a Supreme Court decision. It was not about desecration of the flag. It was about two clauses in the First Amendment -- freedom of speech and the free exercise of religion. The ruling of the Court contains the clearest and strongest definition of Americanism I have ever seen. I wish it were recited once a year in every legislative body, and in all the schools across the nation -- including coming graduation exercises.

This declaration of why this nation is different from all others in its guarantee of freedom of thought is in Justice Robert Jackson's majority opinion in West Virginia Board of Education vs. Barnette (1943). The high-school class I spoke to the other day had never heard of that decision.

At issue was the power of West Virginia to expel the children of Jeh-vah's Witnesses from school because they refused to salute the flag. Jackson's decision -- which addressed and countered the intense will of the majority -- applied to all Americans, religious and secular. He said:

"One's right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections."

That is why our Constitution was not ratified by the original states until it included a Bill of Rights that protected the liberties of Americans -- those rights cited by Justice Jackson -- from both government incursion and the will of the majority.

On the day the Senate was to vote on the flag protection amendment, The Washington Times, in an editorial, opposed the amendment for several reasons, including this cogent reminder to conservatives who favor diminishing the First Amendment:

"It would be the only standing constitutional amendment to expand -- not curtail -- the power of the federal government" as limited in the Bill of Rights by the founders.

Had I been part of that Senate debate, I would have added a quotation from Justice Jackson's majority opinion in West Virginia Board of Education vs. Barnette:

"If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion or other matters of opinion -- or force citizens to confess by word or act their faith therein."

Agreeing with that declaration of Americanism, Sen. Bob Kerrey, D-Neb. -- who lost part of a leg in combat in Vietnam and is the only member of Congress to have earned the Congressional Medal of Honor -- has said of his continued opposition to the flag amendment: "Real patriotism cannot be coerced."

Many veterans supported the flag desecration amendment, including a large number of American Legion members who gathered in Washington on the day of the vote. But other veterans just as ardently opposed it. Korean war veteran Michael Salovesh declared:

"Any law, any constitutional amendment that would call a flag so sacred that to harm it would be sacrilege would be an insult to my deepest religious beliefs. It would be a form of forcing me to worship a strange god, and thus violate what I take to be G-d's commandment."

So also said the children of Jeh-vah's Witnesses.

But most Americans didn't get this constitutional message. Nor have they yet.

JWR contributor Nat Hentoff is a First Amendment authority and author of numerous books. Send your comments to him by clicking here.


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