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Why do I believe we need to codify flag desecration at all, regardless of what level?
In our march toward becoming civilized people, we passed through an interesting era where criminals were banished from the protection and company of villages. Certainly, someone who did not wish to live in the village or to abide by its rules was shown the gate and the opportunity to live in another village more to his liking. As we continued to cluster around villages (or cities), social order had to be codified to deal with the few exceptions. Precedent-leaning Common Law validated that concept long ago.
There were valid and reasonable balances of behavior, rights, responsibilities, contribution to the good of society, chairty, etc.
The villages and few cities of the colonial 1700s were quite small by today's standards, and almost no anonimty for those who committed crimes against the peace (as opposed to certain crimes against the King). Puritanical virtues not withstanding, if one did not like the community in which he resided, he was invited to find his way to another locale or into the wilderness to take his chances with the Indians and the elements.
At the writing of the Declaration of Independence, there were still loyalists who could not countenance the idea of telling the King to buzz-off, or separating themselves from the protection and order of the mothership, England. While these dissident folks were not held in especially high esteem by many revolutionaries, at least the leadership of the revolt paid lip service to their rights to hold those views. In some instances, it was a tough call.
Upon declaring ourselves July 4, 1776 what we WOULD NOT be, we then had to come to some kind of agreement as to what we WOULD be, organizationally speaking. In the tradition of Greece, with a little French philosophy thrown in, we opted to become a modified Republic. THAT is what the flag represents...a collection of states of people unified as a nation constructed as a republic. (As you know, that is why we add stars to the flag whenever new states are created.)
We then decided to try this experiment, and arrive at a system of government which would grant the maximum amount of liberty to individuals, while still keeping peace and order and some sense of organizational governance. Thanks to Jefferson, we borrowed quite heavily from experience, and from a host of libertarians in arriving at a constitution which could pass muster in each of the 13 legislatures where it needed approval.
If that document has one central flaw, it must be hidden somewhere in the creation of a supreme judiciary which could legislate from the bench, and override even the elected Congress in its mission to do the will of the people, all in the name of defining "constitutionality". (But, I'll leave changing that for another generation.)
Although several courts have maximized the maxim that doing something in the short run without taking the long view just causes problems when the day of the long view arrives, perhaps no court did as much damage to the social organization as the Warren Court, albeit in the name extending individual rights. The rest, of course, is history.
The pendulum of permissiveness began in the 60's swinging so far to the left as to actually begin the process of undoing our social fabric. Today's crime problems and inferior educational institutions are but one example of the fallout from these attitudes. While we extended the promise of opportunity to more citizens, and the protection of the Constitution to ALL our citizens, we also unhinged the responsibility paradigm existing in this country since pioneer days. I don't believe it was intentional, it just happened in the process.
One serious area of damage was to the rights of states to keep order and codify socially permissible behaviors under the constitutional provision that those rights not specifically enumerated as being those of the federal government were reserved for the people and the states. Today, we hear numerous repetitions of the African proverb...."it takes a whole village to raise a child". Yet, during this transition to a more egalitarian society, we removed many of the abilities and responsibilities for the village to do just that.
Freedom, in the views of the Founding Fathers, was never intended to be absolute. In fact, one can read the views of Jefferson, Hamilton, Adams, Franklin, and others....as well as Rousseau and thoe from whom the founders got many of their ideas.....and see clearly a strong and pervasive sense of social responsibility placed on the individual for public peace, order, and good governance. Individual rights were - and are - relative, and are to be weighed with the pedagogues of wisdom, consequences and results.
Respect for, and honor of, the peoples' own flag should NOT need codifying as a socially more. Yet, when there are those who seem determined to show it public disrespect, and thereforede facto encourage others to do so, then - unfortunately - society has a right to make a statement about this unacceptable behavior.
Because the flag symbolically represent the union of people as a republic as opposed to government or anything having to do with government, then it is not really protestable....unless one wished to protest (en propo se divisia) against himself...a deranged act to be sure. Further, because the flag has a place of honor in funerals, its desecration is tanamount to grave desecration (especially in the case of MIA's who never so much as have a grave or physical memorial).
I find it rather strange that I cannot walk across the grass in a public park in California, yet I could legally (according to the USSC) show up at a military funeral and burn the flag with impunity during the services.
But, in my desire to codify respect for and honor of the people's flag at the community level, I STILL have a problem with reconstructing the constitution so that we DEFINE what laws states MAY pass! This threatens to change the character of a document which is now the longest living document of governance still in active use and existence in the world. That's a BAD idea, in my view.
To be sure, passing a federal regulation (like OSHA and EPA restrictions) would be sorta like cheating to get the job (sic) done. But, it would certainly solve the problem better than an amendment.
Virtually all the states have communicated to the Congress resolutions asking Congress for the right to codify flag desecration as a crime. I would presume this means a majority of the country, and certainly their local legislative leaders, have decided they wish to protect the flag in this manner, and are willing to weigh the risk of Constitutional damage against reinstituting respect for the flag to the benefit of the latter.
So, I agree with you in many...if not most....respects, although for different reasons. I'm not advocating passage of the amendment, although I can certainly defend the reasons for doing so, given the alternative...or lack of same.
If SOMEBODY will just come up with a better legal alternative, I'll actually oppose the amendment vehemently! Not to sound paranoid, but I fear a slippery slope of Constitutional erosion here if we begin making exceptions for symbolism, although there are valid states' rights arguments to be weighted as well.