Leading Democrats and their favorite constitutional scholar have come up with an ingenious solution to the great flag-desecration crisis.

To get around the Supreme Court’s invalidation of laws aimed at flag-burning and flag-trampling political protesters, they want to make it a crime for, say, a husband and wife to trample Old Glory in the sacred precincts of the marital bedroom.

Far-fetched? Let Sen. Joseph Biden Jr. of Delaware. Gov. Mario Cuomo of New York, and Harvard Law Professor Laurence Tribe explain, as Tribe and others will do at three hearings this week before a House subcommittee. As these Democrats read it, the June 21 flag-burning decision, Texas v. Johnson, bars the government only from singling out for punishment those who publicly mistreat the flag as a way of expressing their contempt for it.

No problem, say Biden, Cuomo, Tribe, and company. No need to amend the Constitution; just make it a crime to mistreat a flag in private as well as in public, regardless of whether any political message is intended. Then throw the books at all flag desecraters, political protesters as well as … as well as … -well, as well as all the others, if any.

To make it constitutional, we will have to prosecute lazy scoutmasters who let the Stars and Stripes drag in the dirt and people who maliciously mistreat their own flags in the privacy of their homes for the sheer sadistic pleasure of it.

Biden and company will go to the ramparts to defend your rights to use contraceptives and read obscene books at home, but don’t let them catch you abusing a flag there.

‘Statutory Choo-Choo’

Of course, the Democrats’ word tricks are driven not by constitutional analysis but by raw political panic. They see a freight train barreling down the track at them-the proposed constitutional amendment to ban flag-burning-and are stoking up their own little statutory choo-choo to outrace it. They saw how the voters lapped up George Bush’s smarmy exploitation of the flag-salute issue in last year’s election, and they don’t want to be outdone in patriotic posturing this time.

This Democratic tactic is not, unfortunately, the most grotesque exercise in cynicism, gutlessness, and trivialization of the Constitution on display in the Great Flag Desecration Flap of 1989. That prize must go to President Bush’s campaign to ban flag desecration by amending the Constitution.

If there were political advantage in it, Bush would holler for an amendment to punish Salman Rushdie’s desecration of Mohammed or Baseball Commissioner A. Bartlett Gia-matti’s desecration of Pete Rose.

It is nothing new to see Bush and his Republican herd pandering to public passions by trivializing the Constitution. What is especially disheartening is to see our public discourse in such a sorry state that the opposition party, and eminent constitutionalists like Tribe, are clamoring for a civil blasphemy statute instead of standing up for the First Amendment.

One can understand why, for reasons of personal taste as well as political self-preservation, the Democrats want to align themselves with the many Americans who feel pride and reverence for the flag rather than with, ragtag radicals who show their contempt for it. And one can appreciate their desperate search for an alternative to the desecration of the Bill of Rights being prepared by Bush and others.

‘Civil Blasphemy’

But can those bent on throwing raw meal to Americans aroused over the occasional flag-burning see no parallel to the mass hysteria and bloodlust that swept the Moslem world after the publication of Rushdie’s allegedly blasphemous The Satanic Verses?

And has everyone forgotten what Justice Robert Jackson wrote for the Court at the height of World War II, when salute-the-flag mania stalked Jehovah’s Witness school-children who refused to worship what they considered a graven image? "Freedom to differ not limited to things that do not matter much he said. "That would be a mere shadow of freedom. The test of its substance is the right to differ as to things that touch the heart of the existing order.”

The legalistic calculation behind the Democratic push for a flag-protection statute is that one or more of the five justices who voted to strike down the Texas law might grasp at an opportunity to uphold a differently drafted flag-desecration statute.

The calculation is plausible; anyone who has observed the contortions Justice Harry Blackmun has gone through in the past on flag desecration would be foolish to lay odds against it.

Labored distinctions are not without precedent in symbolic-speech cases. For example, United States v. O’Brien, in 1968, upheld punishment of anti-war protesters for burning their draft cards on the ground that the law against destroying the cards was not necessarily aimed at protesters but at helping the Selective Service to keep track of potential draftees.

But the distinction the Democrats are trying to sell with heir new flag-protection statute is both spurious and dangerous. It is spurious because one has to stretch to imagine a hypothetical case in which the state would want to punish, or would even find out about, flag desecration by anyone other than a political protester. It is dangerous because once legislatures get into the business of designating symbols too sacred to be desecrated and modes of political dissent too offensive to be tolerated, everyone will want to get in on the act.

Even a scholar of Tribe’s brilliance has to strain to cobble together a constitutional argument in support of his view that, as he said in a July 3 column in The New York Times, "properly understood, the Court’s decision upheld no right to desecrate the flag, even in political protest, but merely required that Government protection of the flag be separated from Government suppression of detested views."

Tribe had a very different perspective last year, when he issued the second edition of his treatise American Constitutional Law. He wrote then that protection of the flag as symbol could not be separated from suppression of the desecrater’s views, because the symbol is degraded "only when such conduct is perceived by others, and only when the conduct is interpreted in a certain way.”

Tribe (unlike Biden and Cuomo) stops short of saying a flag-protection statute is a good idea in any sense other than being a less bad idea than a constitutional amendment. But he now says such a statute would be upheld, citing a couple of oblique footnotes and scraps of text in Justice William Brennan Jr.’s majority opinion and past decisions including O’Brien.

It seems more plausible, however, to take Brennan at face value when he says that the government may not "criminally punish a person for burning a flag as a means of political protest."

Tribe likens a hypothetical statute penalizing those who mistreat flags to the valid laws penalizing desecration of grave sites and destruction of historical artifacts.

But destroying one of the millions of mass-produced, fungible flags is not at all like destroying a unique physical object, especially one that is somebody else’s property. As Brennan noted, "[N]othing in our opinion should be taken to suggest that one is free to steal a flag so long as one later uses it to communicate an idea.”

Tribe also notes that "torturing a little animal," even in private, could properly be made a crime.

Well, sure. But torturing a piece of cloth? Only in voodoo constitutional law, Nothing anyone can do to a flag, in public or in private, can destroy or damage the flag, which is an idea and, as such, immortal.

If Congress really wants to armor-plate a flag-desecration ban, it could declare that every American flag in creation is the property of the United States government, held in trust by the possessor. Then damaging a flag would be simple vandalism of government property. Seem ridiculous? Look how far we’ve come already.