I wrote yesterday on Ruth Bader Ginsburg’s letter to UA Little Rock Law School professor Lawrence Averill in 1993 on how a visit to Little Rock in 1990 introduced her to Bill and Hillary Clinton and set her on a path to the U.S. Supreme Court.
That brought a note from John Pagan, on the law faculty then, a former Arkansas state senator and now an emeritus law professor at the University of Richmond.
I dug out my journal entry for Wednesday, February 7, 1990, and found that I had made the following comments about then-Judge Ginsburg’s visit:
“At 5 pm I went with Susan Wright to escort Judge Ruth Bader Ginsburg of the DC Circuit from the Excelsior Hotel to Worthen Bank, where Judge G. delivered the Altheimer lecture. She spoke on the need for caution in amending the U.S. Constitution. She reviewed the history of constitutional amendments and made a persuasive case for not jumping to amend the Constitution to overturn the flag desecration decision.”
As you know, Judge Ginsburg was referring to Texas v. Johnson, a 1989 case in which the U.S. Supreme Court held that the First and Fourteenth Amendments prohibit states from punishing people who engage in expressive conduct by desecrating a flag. A year after Judge Ginsburg’s Little Rock speech, 21 of my colleagues in the 35-member Arkansas Senate cosponsored Senate Joint Resolution 6, which criticized Johnson and called for a federal constitutional amendment to overrule the decision. The state Senate resolution urged Congress “to propose an amendment of the United States Constitution, for ratification by the states, specifying that Congress and the states shall have the power to prohibit the physical desecration of the flag of the United States.”
Influenced by Judge Ginsburg’s powerful argument in favor of taking a cautious approach to constitutional amendments, I spoke against SJR 6 on the floor of the Senate. I echoed her assertion that we should not alter our nation’s fundamental law in order to make what she called “hasty, ill-considered corrections” of unpopular Supreme Court decisions. My opposition to the resolution triggered a firestorm of criticism from those who refused to see the difference between a defense of the right of free expression, on the one hand, and advocacy of flag burning, on the other. Predictably, I took a shellacking when the Senate voted. The resolution passed overwhelmingly in both houses.
Following the fight over SJR 6, Vince Foster sent me one of the nicest letters I’ve ever received. On February 5, 1991, he wrote that he was proud of the position that I had taken on the flag-desecration amendment, and he offered some comforting words of encouragement: “I read recently someone’s quote that ‘The wind blows hardest at the top of the mountain.’ Stand fast.” Re-reading Vince’s letter almost 30 years later, I think he gives us a concise way to sum up Ruth Bader Ginsburg’s monumental contribution to American law. She stood fast, year after year, courageously advancing liberty and equality no matter how hard the political winds blew. I’m glad that many of us had the privilege of meeting her when she came to Little Rock.
What’s old is new. The effort to amend the Constitution to criminalize flag desecration lives on. U.S. Rep. Steve Womack is in the vanguard of the ongoing movement.