The following is testimony from Harvard Law Professor Richard D. Parker given before a House Judiciary subcommittee in May of 2003:

This is one of the most interesting arguments made by the people who testified before the subcommittee in 2003. It is certainly one of the few that makes an argument for the anti-desecration amendment per se.

The others tended to be heartfelt arguments for why people shouldn’t burn the flag, rather than explanations of why that should be outlawed altogether. The evocation of the flag draped over the coffins of soldiers is very common, suggesting that people who burn the flag are disrespecting the sacrifice of those soldiers and their families. It goes without saying, I suppose, that post-9/11 efforts to criminalize the burning of flags make connections to that occasion for patriotism. While I have a hard time understanding exactly who the congressman is referring to here:

the literal opacity of the statement is of course secondary.

Again, though I’d say these are arguments that might explain why these individuals wouldn’t burn flags, why they get mad when others do, and even, perhaps, why others might change their minds about plans to burn flags in the future, they don’t constitute in and of themselves an argument for why this mode of expression ought to made criminal.

(There is an argument that circulates in some of the pro-flag amendment discourse that suggests that flag burning doesn’t constitute expression. Better arguments seem to understand the contradiction waiting around the corner from that position. The weakest form of this argument cites Tommy Lasorda: “Baseball great Tommy Lasorda spoke to common sense, the dictionary and for 3 of 4 common Americans when he said: “‘speech is when you talk.’”)

Professor Parker, though, seems to be trying to make a larger argument that suggests that the common good is affected by allowing the flag to be burned – a version of the “fire in a crowded theater” rationale for the restriction of speech. Moreover, he argues that the ban on flag burning creates a public good – a more effective forum for public speech that focuses on the improvement of the American community.

Rather than simply denounce America – which is a pretty consistent pro-amendment read of flag burners’ intentions, when they’re imagined to have any intentions at all – Parker argues that holders of “minority and unpopular viewpoints” should embrace the flag as a passport to inclusion in the American conversation: “It helps them get a hearing. The civil rights movement understood this. That is why it displayed the American flag so prominently and so proudly in its great marches of the 1960's.”

At a certain level, of course, Parker is right, this is indeed one of the key structures of political argument in American history over the course of the last 150 or so years. Shaming America into being a better version of itself, closer to the ideals it espouses, actually has a decent track record.

The premise of the kind of protest Parker likes is that there is a gap between the experienced reality of America and its ideal. Its success comes from the ability to criticize America (never a popular move) while simultaneously praising America (that’s better). I’m not sure, though, that this approach, which likes the America concept but criticizes its execution, is really so incompatible with the gesture of burning an American flag.

The most reasonable expression I could imagine as intended by the burning of an American flag by an American citizen would be an angry declaration that America as it is does not deserve the name attached to the flag-burner’s understanding of American ideals. This flag – imbued with all of the ideals revered by those who would ban its burning – cannot represent America in its current state, and so as a gesture intended to shame Americans into living up to our best imaginations of ourselves the flag-burner robs the nation of its cherished emblem so that it can no longer offer false comfort that we are in fact who we would only like to be.

And so, however well intentioned, I cannot agree with Professor Parker’s assertions that the flag must be protected because it supersedes the specific terms of debate:

What if someone believes that America - as it is - is less and less able to sponsor the contention of opposing viewpoints?

This is the eventual problem with this kind of “dissensus” argument. While there may in certain circumstances be ways that an exogenous, ideal term like “America” can help focus critique into progress, it has to remain accessible to meta-critical evaluation if it’s also the name used to describe the state of things. To authorize the government to ban the kind of last-resort critique that flag burning might effectively convey is in the end, I think, what it seems most obviously to be: a restriction on the freedom of speech whereby citizens can openly express their views of their government and nation.