COMMENT.(The Talk of the Town)

Thanks to Justice Brandeis (who lifted the phrase from Lord Bryce, the British scholar-diplomat and author of "The American Commonwealth"), the legislatures of the several states are often styled, not least by their own members, "laboratories of democracy." And so they are, sometimes, along with also being, sometimes, cockpits of corruption and lairs of lassitude. If, however, a coalition of political panderers, muddleheaded patriots, constitutional defeatists, and outright cynics has its way in the United States Senate this week, the state legislatures will have to take on an additional role: lifeguards of liberty.

On June 22, 2005, without much fanfare, the House of Representatives passed a resolution "Proposing an amendment to the Constitution of the United States authorizing the Congress to prohibit the physical desecration of the flag of the United States." This was part of a distasteful but, up to now, ultimately harmless biennial political ritual that has been going on ever since the Republican Party took control of the House eleven years ago. The ritual goes like this: In every odd-numbered year (1995, 1997, 1999, 2001, 2003, and 2005), sometime around Flag Day or the Fourth of July, the House O.K.'s a constitutional amendment purporting to protect the American flag from the menace of burners, stompers, ripper-uppers, and suchlike miscreants. Later, the amendment dies in the Senate, either quietly, without a vote, or noisily, with one. This is going to be one of the noisy years. The difference this time is that the amendment may not die.

Like a dot-com I.P.O., flag mania reached its peak in the House on Day One: 1995's version of the amendment got three hundred and twelve votes, with a hundred and twenty opposed. Over time, House support has drifted slowly southward. The current version won the backing of two hundred and eighty-six representatives, a record low, while a hundred and thirty voted "nay," a record high. The other slope of Capitol Hill is another story. The last time the amendment reached the floor of the Senate, during the run-up to the 2000 election, it got sixty-three votes, four short of the needed two-thirds. This time, according to vote counters on both sides, sixty-six votes are a lock. If a sixty-seventh can be scrounged up--or if one of the opposing senators doesn't show--then the only remaining obstacle will be winning the approval of three-quarters of the state legislatures. The catch is that all fifty have passed resolutions endorsing just such an amendment. The resolutions are non-binding, but thirteen legislatures would have to summon the strength of character to walk away from them in order to keep this sad little campaign talking point from becoming forevermore part of the Constitution.

The proposed amendment is a one-liner, though lacking in comic punch. It goes, "The Congress shall have power to prohibit the physical desecration of the flag of the United States." Now, really--is that so terrible? It doesn't even prohibit flag burning, it just authorizes Congress to pass a law prohibiting it. As opponents point out, that would put the United States in the company of China, Cuba, Iran, North Korea, pre-invasion Iraq, and other tyrannies. But it turns out that France, Germany, Italy, and India, all of which are reasonably free countries, also have laws against insulting their national ensigns. (Japan, Norway, and--cartoons notwithstanding--polite little Denmark forbid the burning of foreign flags but not their own.) The flag-desecration amendment would hardly mean the ...