Sun, Jul 31, 2005 page9

• There's not a lot that's sacred about constitutional inexactitude

  • By William Safire / NY TIMES NEWS SERVICE
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  The US House of Representatives, by more than the required two-thirds majority, recently approved a proposed amendment to the Constitution that reads, "The Congress shall have the power to prohibit the physical desecration of the flag of the United States."

  This was the House's thumb in the eye to the Supreme Court, which by a 5-4 vote in 1989 ruled that laws against flag-burning by demonstrators were an unconstitutional restraint on free speech. Now the bill goes to the Senate, which will most likely take up the issue after its August recess. If two-thirds of the Senate approves, the proposal will go to the 50 states for ratification. If 38 agree, the Constitution will be amended, the Supreme Court overruled -- and a great semantic mistake will have been made.

  Set aside the roiling debate between those possessed with patriotic fervor and those demonstrators eager to infuriate the vast majority of Americans. Consider only the meaning of the key word in the proposed change in our nation's basic law.

  Desecration is a noun steeped in the violation of religious belief. It is rooted in the Latin sacrare or secrare, source of "sacred" and "sacrifice," dealing through the millenniums with worship of a deity. To desecrate is to profane what is holy; Merriam Webster defines it as "to violate the sanctity of," American Heritage as "to violate the sacredness of" and the Oxford English Dictionary as "to take away its consecrated or sacred character." Houses of God and gravestones can be desecrated by people bent on reviling religion or embracing evil.

  But national flags are not religious objects or symbols. Some lexicographers report a secondary sense of mere "disrespect," but that is aberrant usage, not common usage. If strong words retain their meaning -- with their "first" sense signifying widespread public understanding -- then desecrate and its opposite, consecrate, are plainly understood to denote profoundly sacred themes and religious practices.

  FAMOUS USE

  Take the most famous use of consecrate. Abraham Lincoln at Gettysburg, dedicating a national cemetery: "We can not consecrate -- we can not hallow this ground. The brave men, living and dead, who struggled here, have consecrated it."

  Lincoln's meaning was unmistakably spiritual: Consecrate and hallow are synonyms meaning "to make holy."

  It's unlikely that the proposers of this amendment, or those representatives who voted for it, intended to treat the nation's flag as a religious symbol. But that is what the word desecration does. Although I stand with Supreme Court Justice Antonin Scalia in upholding the right of professional infuriators to mock or even destroy the symbols of our nationhood, my political opinion has no place in a language column. Here, I defend only the words we use from having their meanings confused.

  If two-thirds of the Senate is determined to go ahead with this, it should change the "physical desecration of" to something like "the ostentatious destruction or mockery of" or "the outrageous disrespect for." Then get the House to agree to change its bill to correct the error. And here's why.

  A typo (the 1878 shortening of "typographical error") exists in the amendments to our Constitution, and no matter how often the nation's fundamental document is reprinted, that typo cannot be removed.

  We are not talking about a seeming mistake by the framers, who spelled or capitalized words differently then, and also had to work behind closed doors through a blazing summer in Philadelphia without air-conditioning. Rather, we examine today an ineradicable error in the 25th Amendment to the Constitution, ratified as recently as 1967. This necessary addition to our basic law provided for the removal and replacement of a disabled or captured president, but its maddeningly permanent typo demonstrates how important it is to weigh every word of these amendments.

  Section 4 of the 25th Amendment reads: "Whenever the Vice President and a majority of ... the principal officers of the executive departments" [note the plural "departments," meaning members of the Cabinet] declare in writing to Congress that the president cannot discharge his duties, the vice president becomes acting president.

  But in the next paragraph, arranging for the ousted president to seek to reclaim his office, Congress' power to block his return can be triggered by "a majority of the principal officers of the executive department" -- with no "s" after "department."

  GOOF

  Why the difference? Does the second usage mean "executive branch" or what? Did somebody goof by making "department" singular, and did a legion of proofreaders miss it -- and if so, why has that embarrassment been left unfixed?

  Former Democratic Senator Birch Bayh, primary sponsor of the 25th Amendment, informs me: "In the hundreds of times I've read this thing, that's the first time I noticed that. Sounds to me like it should be the same in both places."

  The writer of the definitive book about the amendment, and one of the 25th's authors, is John Feerick, a Fordham law professor and former dean of the law school. Reached recently, Feerick recalls: "The conference committees of both houses met to iron out their differences. I remember getting a copy of their work a day or two later ... and seeing the error in the draft. ... I was chagrined and pointed it out, but it was too late; it had already gone to the states to be ratified. If you dig back through the drafts, you'll see `executive departments' all the way back, except at the very end. Where it got in and how, I probably knew at some point, but now I don't. The meaning is still clear."

  About fixing it, Birch Bayh notes ruefully: "It would have to go to technical corrections, and even then you'd have to weigh whether you want to open the issue to debate. Presidential power is something we have to be very careful about."

  Which is why the Senate should take a hard look at the misused word "desecration" before it's too late.
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