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The burning issueCenterfields today notes an incident in Ohio, where: Less than 24 hours after a Tri-state soldier was buried, someone pulled up 20 American flags from his father-in-law's front yard and set fire to them under a car in the driveway.Inevitably, this event is going to spur argument over the wisdom of the constitutional amendment empowering Congress to ban the burning of the flag. I haven't had occaision to comment on either its chances or wisdom in this context previously, so I will do so today. I suspect that the amendment will pass Congress, but I don't know whether it will pass muster in the states. The ultimate question that determines its fate - as obvious as this may sound - is whether the opponents will succeed in characterizing it as an issue of free speech, or whether the proponents will succeed in characterizing it as a question of respect for the flag and for America's values. If the latter prevails, and the public perception is that it's a question of protecting the flag, the amendment will pass with flying colors, because which state legislator wants to read a newspaper report that they voted against protecting the American flag? This framing stuff that Lakoff and Dean like so much may sound like a trendy buzzword, but it does actually matter. ;) As regards the advisability of the amendment. I preface these remarks by saying, first, there are obviously some very good, strong reasons why one might oppose the flag burning amendment, most of which are offered in the comments of the Centerfields post previously linked to; and second, I have mixed feelings about the amendment, and I therefore offer three underlying reasons why I find myself more inclined than not to support it. The first is the value of Old Glory. When I read Justice Stevens' dissent in Texas v. Johnson, 491 U.S. 397 (1989), I find myself in the not entirely unfamiliar position of thinking, "But Mr. Justice Stevens, this isn't an argument about whether the law is unconstitutional, it's an argument about whether the law is a terrible idea or not!". I have frequently made the argument that the Court should rule on what the Constitution says, regardless of how much the law is a good idea; if the people really want the law, they should amend the constitution. Unusually, the Court did exactly that; they ruled over Justice Stevens' dissent that burning the flag constitututed protected free speech. Now, over a decade later, my prescription for how the Constitution's meaning should be updated is in motion, and we are occaisioned to consider something that the Supreme Court can never legitimately consider: not whether a law banning the burning of the flag is unconstitutional, but whether it should be unconstitutional. And in that context, I find Justice Stevens' argument an impassioned and convincing exhortation of why this amendment should pass. I take the flag and the pledge very, very seriously. They are omnipresent reminders that everything that Americans take for granted now was paid for by the willingness of America's forefathers to soak that flag in their blood. I fully agree that a ban on burning the flag is unconstitutional. I am not convinced that it shouldn't be - because, in Justice Stevens' words: It is more than a proud symbol of the courage, the determination, and the gifts of nature that transformed 13 fledgling Colonies into a world power. It is a symbol of freedom, of equal opportunity, of religious tolerance, and of good will for other peoples who share our aspirations. The symbol carries its message to dissidents both at home and abroad who may have no interest at all in our national unity or survival. The second point that I would make is that we accept numerous limitations on free speech, and always have. Free speech has never been considered carte blanche to libel, to incitement or "yelling fire in a crowded theater", to fighting words, to obscenity. We have long accepted the principal that there are some forms of speech which can reasonably be restricted, either because they are considered, by virtually unanimous consent, to be valueless, or, as in this case, they are of too little value relative to the damage which they might inflict. For example: "That this amendment was intended to secure to every citizen an absolute right to speak, or write, or print, whatever he might please, without any responsibility, public or private, therefor, is a supposition too wild to be indulged by any rational man.Furthermore, I have tended to view the first amendment as predominantly a guarantee of political speech, and as such, I would personally be far more willing to sustain a challenge to, say, corporate speech (read, advertising standards regulations) than most of my originalist bretheren. But that rationale leads me to the conclusion that "speech" is not monolithic, and that some restrictions or limitations may be permissable. Lastly, I note that this amendment does not prohibit the desecration or burning of the flag, it merely empowers Congress to do so. To put it bluntly, if it were otherwise, I would be far less inclined to support it. I objected to Kelo (q.v. Kelo: May the Farce Be With You, 6/28/05) on the grounds that it took a right that was protected by the Constitution and improperly placed the choice to enforce or abridge that right into the democratic arena, and that there can be no coherent purpose in placing a right in the constitution other than specifically to preclude its presence in the democratic process. Likewise, then, this amendment takes a part of a right underwritten by the Constitution, and makes its upholding or abridgement a part of the normal democratic process in the political arena. However, while this amendment would have substantially the same effect as Kelo, the method by which it is offered - the Article V amendment process - gives this a legitimacy which Kelo lacks. I have never argued that the Constitution is frozen in time for all time, only that the Supreme Court cannot change its meaning. The authority to change, abridge or expand the Constitution always exists, as a function of the sovereignty of the people. Cf. comments discussing rights and sovereignty here. Because I view some restrictions on free speech absolutism as valid, because of the inestimable value of Old Glory, and because the change is offered in the correct manner, I think that there are legitimate arguments to be made that the amendment can and should succeed. Since we may never again see the day I agree with him, I'll give the last word to Justice Stevens: The ideas of liberty and equality have been an irresistible force in motivating leaders like Patrick Henry, Susan B. Anthony, and Abraham Lincoln, schoolteachers like Nathan Hale and Booker T. Washington, the Philippine Scouts who fought at Bataan, and the soldiers who scaled the bluff at Omaha Beach. If those ideas are worth fighting for - and our history demonstrates that they are - it cannot be true that the flag that uniquely symbolizes their power is not itself worthy of protection from unnecessary desecration. Two more comment threadsI have some relatively lengthy comments in two threads: These comments are essentially discussing the same thing, which is further expansion on how I view the U.S. Constitution. My comments at Prawfsblawg - in a thread originally about Justice Roberts and the french fry case - talks about the imperative of the courts ruling on the law as it stands, even if the result is not the best result; it draws comparisons to the Pollock case which effectively presaged the 16th amendment. However, I also give some outlines as to where my current thinking is on the concept of Constitutional rights, and how this plays into the 9th and 10th amendments.Over at ACSblog, I wrote a fairly long comment discussing the absurdity of the Living Constitution in the face of an amendment process, and providing examples (Pollock and the 16th again; the 17th and 18th). However, I also revist a line of thought I discussed previously, listed in discussions here. Roundup 7/20/05I've made a couple of comments today on the Roberts nomination in various places:
Scalia and consistencyNice blog posting here, asking whether it really matters that Nino isn't always a model of sticking to originalist principles. Roundup 7/13/05Various comments I've posted on blogs recently:
CAFTA passes US SenateJust a quick update; the Senate voted
54-45 to pass
CAFTA. Sen. Olympia Snowe joined 12 Republicans in voting "no".
Major kudos - albeit belatedly - to Sens. Burns, Collins, Craig, Crapo, Enzi,
Graham, Shelby, Specter, Snowe, Thomas, Thune and Vitter. If any one of these
folks represent you, your Senator is earning their keep. |
    
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