PhotoDude.com

Wed. Jun 22, 2005

Amendment to Increase Flag Burning

Today, I thought maybe I’d lost an entire year or something. Because the perennial election year issue, a flag burning amendment, has suddenly popped up as a vital legislative requirement in this non-election year. Ahead of other important issues, our elected representatives have apparently decided they can no longer abide the large numbers of people they see by the side of the street burning American flags every day.

Perhaps your neighborhood is the only one where this isn’t happening. And mine. But nationwide, it is clearly a pressing issue that must be dealt with … now. Perversely, it’s my belief that Congress’ attempted amendment will actually greatly increase the amount of flag burning we see in this country.

Some might call that “karma.”

Voting once again today on an issue blending emotion, patriotism and politics, the House of Representatives overwhelmingly endorsed a constitutional amendment that would allow Congress to outlaw debasing the American flag.

The House has repeatedly passed the measure in earlier sessions, so today’s 286-to-130 vote, well over the required two-thirds margin, was not surprising. The focus now will be on the Senate, where the measure has never passed. But lawmakers and lobbyists on both sides say the conservative tilt of that chamber gives the measure its best chance of Congressional approval since the Supreme Court ruled 16 years ago that flag burning was a form of protected speech.

NY Times: House Again Backs Ban on Flag Desecration

Or as Matt Welch writes under the subject line, Coulda Sworn There Was a War on, or Something, “In one of those periodic moments that make me feel sane for not belonging to any political party, the scarequote-worthy “House of Representatives” just passed the Flag-Burning Amendment, by a whopping 286-130. The Party of Limited Government (Except When We Run it) voted 209-12, and the Loyal Opposition pushed the amendment over the goal line with a disgraceful 77-117 showing. Here’s the complete roll-call list of congress-dopes who should probably never be taken seriously about anything ever again.”

But that list is only slightly altered from last time it passed the House. We’ve been here several times before. In fact, it’s becoming such a regularity that many bloggers just dig back into the archives and say “here’s what I wrote about it a long time ago,” recycling arguments that have had no reason to change. I called it “Constitutional Obscenity,” on Nov. 26, 2003:

It’s another election year, which invariably means much puffery about amending the Constitution to right the various perceived wrongs of this country. However, such an amendment takes more than one puffed up politico on a campaign stump. It requires the approval of two thirds of the Senate, two thirds of the House, and three quarters of the 50 state legislatures, and thus, is simply political grandstanding 99% of the time.

And should you proceed, we all know you can’t succeed (remember the Equal Rights Amendment? If you don’t, that’s exactly my point), as it thankfully takes a whole lot more than one legislative body to change the Constitution. It takes 40 of them (House, Senate, and at least 38 state legislatures)...

Never mind my old quotes, you can get much better ones from a law professor at UCLA, Eugene Volokh, who quoted his old article from the L.A. Times, July 18, 2001, recycled in his blog on June 9, 2004, and has requoted them again this week:

“Congress shall have power to prohibit the physical desecration of the flag of the United States, and the flying of the Confederate flag.”

OK, so that’s not exactly how the proposed flag protection amendment reads — I’ve added the Confederate flag phrase. But this little thought experiment helps show that the flag protection amendment is a bad idea.

Of course, burning the U.S. flag deeply offends many people. But so does waving the Confederate flag, even when it’s done by individuals and not by state governments. Many American boys died defending the U.S. flag — and many of them died fighting against the Confederacy. Burning the U.S. flag is often an anti-American symbol. Likewise, the Confederate flag was a symbol of treason and rebellion against the lawful American government.

So one danger of the anti-flagburning amendment is the slippery slope. If the amendment is enacted, even without a clause for the Confederate flag, many people will be energized to try to ban other symbols that offend them.

But what would we say when flagburning is banned but other offensive symbols are allowed? “We in the majority get to suppress symbols we hate, but you in the minority don’t”? “Our hatred of flagburning is reasonable but your hatred of the Confederate flag is unreasonable”?

America is different from most other countries, and even from most other democracies. In America, all ideologies are protected, even those that the majority thinks are evil.

Why is this right? Because the First Amendment was drafted and interpreted by people who intimately understood cultural, religious, and political conflict, and who knew how calls for censorship could launch the most bitter of culture wars.

Ah, yes, “the most bitter of culture wars.” You’re soaking in it!

But this goes beyond culture wars to foundational principles of our country. Citizen Smash says I Hate Flag-Burning…

...Almost as much as I hate the Flag-Burning Amendment.

Burning the American flag is offensive, but it does no harm to the nation or the forces that protect it. It’s a symbol of our national spirit, not a physical manifestation of it. Besides, we can always make more flags faster than they can burn ‘em.

For over two hundred years, through periods of war, uncertainty, and economic hardship, the Republic has survived without an amendment banning flag-burning. So why do we suddenly need one now?

Please, leave our Constitution alone.

And that’s the key for me. A perusal of over two centuries of Constitutional Amendments shows that, with two exceptions (one since repealed, Prohibition) they were all intended to limit the power of government, restrict its control over citizens, and thus, insure them certain rights. In fact, the first amendments are known by another name … The Bill of Rights.

This Congress wants to amend the Constitution to restrict your rights … and that’s wrong. That goes against the foundational principles of the document.

But in these most troubled times, this is a priority of our current Congress. They want to undertake the most drastic action they can, a Constitutional Amendment, to stop something that isn’t happening, and is not a threat to our country in any measurable way. It’s just potentially offensive.

We will now waste time and political initiative in the Senate and possibly 50 state legislatures to deal with what is currently a non-imminent and essentially non-existent problem.

Except we will begin to see it, now. Because that is the one thing this Amendment will make certain if it passes the Senate: more flag burning. In front of every one of the 50 state capitols, as each legislature takes up this issue towards a vote. It will be done as an act of free speech against a proposed law … and it will also be done in the manner of a teenager who’s been told not to drink whiskey. Once forbidden, it will become a more common act, as people use it to get attention. It’s a new way to get on TV, a new way to get arrested for your cause, and bring it press coverage.

And, throughout it all, we will have to listen to much hyperbolic diarrhea from “representatives” like Rep. Randy (Duke) Cunningham, R-Calif.: “Ask the men and women who stood on top of the Trade Center. Ask them and they will tell you: pass this amendment.”

As I said about a year ago when discussing Congressional Priorities, “the last time I saw a flag burning, it was flying in front of World Trade Center Building 5 on the morning of 9/11, and that’s the kind of flag burning I want Congress to prioritize and stop.”

If you could ask “the men and women who stood on top of the Trade Center” what they want in the aftermath of their tragic murder, I’m guessing the first thing out of their mouths wouldn’t be “a flag burning amendment, please.”

It might be something more along the lines “justice,” as in “catch that SOB Osama instead of having the CIA Director coyly tell us ‘I have an excellent idea of where he is. What’s the next question?’”

Or maybe it would be something along the lines of “security,” as in “do your sworn duty to uphold and defend the Constitution as is, do what is best for this country, prevent 9/11 from ever happening again, and stop blaspheming our memory as a part of some petty battle in your culture war.”