June 28, 2006

Flag Tag

Hatched by Dafydd

An amendment to allow Congress to bar the desecration of the American flag failed today in the Senate by a single vote -- 66 to 34, where 67 was needed -- and with three Republicans voting against it: Mitch McConnell (KY, 100%), Lincoln Chafee (RI, 40%), and Bob Bennett (UT, 88%)... quite an ideological spread.

Ryan Sager wrote in Real Clear Politics blog opposing the amendment -- but I find, as usual, that my own position doesn't really mesh with any organized group. (Like Robert Anton Wilson, I am "politically non-Euclidean.)

Since everybody else is yammering about this development, I suppose I'd better join the bandwagon. Read on.

Warning ~ pedantry ahead.

Heed my warning.

  1. On the one hand, I completely oppose this amendment.

It's vulgar, among other things. Amendments to the United States Constitution should not be about such little, petty things like banning flag-burning or the sale or possession of alcohol; we should restrict amendments to wide, sweeping questions of liberty, like the "Civil War" amendments, or to fundamental changes to the structure of the Constitution, such as the 12th and 17th amendments (which changed how we elect the president, vice president, and senators).

  1. But on the other hand (imagine this entire section in the droning monotone of today's JFK), I believe it should already be perfectly within the capacity of Congress to ban flag burning.

I have never accepted the absurd extension of the word "speech" to include non-verbal actions, gestures, protests, pantomimes, works of art, strip-shows, or destruction of property. It's a rude malappropriation of everything the Framers fought for in the Revolutionary War.

They were men of reason, not mindless passion. When they wrote the First Amendment --

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

-- speech meant verbal communication, whether oral or written. Had they meant other forms of conveying an idea, they would have written "abridging the freedom to express an idea," the clumsy phrase used by Justice William Brennan in Texas v. Johnson (491 U.S. 397, 1989), the decision, by the slim and unconvincing margin of 5-4, that struck down all laws banning the desecration of the flag.

Of all things you could accuse James Madison of, paucity of rhetorical skill is not among them. If he meant something other than verbal communication, he would have made it clear.

I can see a very good argument for extending, or "incorporating," this amendment to state (and local) legislatures, particularly after the reorganization of the relationship between the federal government and the various states following the 14th Amendment. They were no longer mini-republics in their own right, with D.C. being there just to adjudicate disputes between the states and to handle problems too large for any one state (foreign trade, for example, or interstate commerce).

Post-1870, states were starting to become what they are now -- inferior bodies subdividing the United States. And by the "incorporation period" in the 20th century, the only vestige of the early days of the republic came during the quadrennial presidential nominating conventions, when every delegation declared itself the representatives of "the sovereign state of so-and-so!"

But even then, speech meant speech. I'm not sure when speech came to mean everything from drums to puppets to nude dancing, but it's been folderol since the year dot. Burning a flag -- anybody's flag -- is no more "speech" than is burning down the house; and Congress should be able to ban it anywhere it has jurisdiction, while states should be able to ban it everywhere else.

  1. But on the third hand, how does this definition affect my view of the constitutionality of the BCRA, a.k.a. McCain-Feingold?

(And Fred Barnes is right: of all people, Sen. Russell Feingold, WI, 100%, has some chutzpah attacking this amendment on grounds of freedom of speech!) If I say the First Amendment applies only to actual speech... then how can I say that the BCRA should be unconstitutional, as I do say?

I think I introduced this concept before, but maybe it was just in my dreams. The key is the idea of transactional rights.

I define a transactional right as any condition that is necessary to the enjoyment of a liberty right. For example, freedom of the press clearly applies to printing a newspaper (like, duh). But the First Amendment doesn't say a word to stop the government from banning the sale of paper, ink, and printing presses, does it?

Nevertheless, those items are utterly necessary to produce a newspaper. Thus, the right to purchase what you need to publish a newspaper is a transactional right associated with freedom of the press. (Everybody knows this; my contribution is to tease it out from the general right and give it an evocative name.) Transactional rights are what prevent Congress, too clever by half, from skirting the Second Amendment by banning the sale of ammunition -- which the text itself doesn't mention.

Clearly, arguing in favor of a particular candidate for office is a perfect example of freedom of speech. Since the expenditure to publicize your argument is absolutely necessary to allow it to be heard by those who want to hear it -- as necessary as paper and ink to publishing a newspaper -- therefore, the right to spend money campaigning for a candidate is a transactional right associated with freedom of speech (and also petitioning the government, in the case of "issue ads"). The same reasoning applies to spending money to support someone else campaigning for your candidate -- including a political party or the candidate's own campaign manager.

As a judge, I would have trashed the BCRA immediately: the core protected liberty is a verbal argument to elect one candidate instead of the other. Once again, that is the meaning of speech: verbal communication. A sock on the jaw may be eloquent indeed... but it's nonverbal and should not be protected by the First Amendment (pace, Raymond Chandler).

  1. On the fourth hand -- weren't Cottus, Briareus and Gyges, the "Hecatoncheiros" sons of Uranus, called the Hundred Handed? -- if the Supreme Court steadfastly refuses to restrict freedom of speech to speech, and insists upon confounding it with freedom of dancing and eating and Macy's Thanksgiving Day balloons, does that make it all right to go ahead and enact a dumb constitutional amendment just to clarify matters?

No, not in this case: this amendment is too bloody narrow, singling out just one kind of non-verbal communication for Congress to be allowed to ban. That's ridiculous; are we supposed to go down the list, ratifying amendment after amendment just to fix a stupid Court decision?

So on the last hand, I oppose this amendment; but I'm appalled that Brennan forced Congress to have to argue about enacting it.

Hatched by Dafydd on this day, June 28, 2006, at the time of 5:24 AM

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The following hissed in response by: Harold C. Hutchison

An excellent discussion.

For me, desecration of the flag falls under "fighting words" - and those can be regulated.

The above hissed in response by: Harold C. Hutchison [TypeKey Profile Page] at June 28, 2006 6:07 AM

The following hissed in response by: yetanotherjohn

I would not be upset if the amendment had passed and I am not upset that it failed. We set a high bar on a constitutional amendment as a solution to any perceived issue. While on the one hand (snakes have hands?) I agree that constitutional amendments should not be the preferred solution for every issue (perhaps one establishing the precedence of bike paths on church property might be looked on favorably by some), I do not feel that I should judge how worthy an issue is. Just because I do not feel it worthy of an amendment does not mean others don't see the issue in the opposite light. The very nature of the amendment process will weed out the trivial. 2/3 of both chambers of congress is not a trivial hurdle. 75% of the states approving it is also not a minor leap. Any issue that can jump those barriers is by definition a major issue to a strong majority of the people. And, as in the case of alcohol sales, if the people subsequently feel the issue was wrongly decided, there is a clear path for further amendments.

I would like to see more controversial issues go down this path. It encourages debate. It forces people to take a stand on this. The 34 no votes will have to justify their actions as each of them were the deciding vote that stopped the amendment. Proponents of the flag burn ban should accept that they just barely cleared the hurdle. There is nothing to stop them from starting again. Just as there would be nothing to stop those in favor of allowing flag burning to start immediately working for an amendment to overturn the ban if it had passed.

What does bother me is those who claim to be against the amendment because to ban flag burning would be against the first amendment. This shows such a basic misunderstanding of the constitution that I would contemplate an amendment that would allow for voter testing.

The above hissed in response by: yetanotherjohn [TypeKey Profile Page] at June 28, 2006 10:02 AM

The following hissed in response by: RRRoark

I thought the amendment was actually to restore the rights of the states to regulate flag burning, a right that was usurped by the supreme court.

[We'll assume the typo was an accident. -- the Mgt.]

The above hissed in response by: RRRoark [TypeKey Profile Page] at June 28, 2006 10:19 AM

The following hissed in response by: ira


Once again, I both agree & disagree with your varied "on the other hands". To paraphrase another commenter, I could go either way on this.

I would much prefer, if Congress feels they MUST take action, as we all know how much Congress actually accomplishes when they "take action", a law granting immunity to anyone defending the flag from desecration (within limits, of course).

Someone chooses to express themselves by burning the flag, I can express myself by smacking them upside the head with a 2x4. I get a free pass. Actions have consequences, ya know.

The above hissed in response by: ira [TypeKey Profile Page] at June 28, 2006 7:54 PM

The following hissed in response by: Dick E


(snakes have hands?)

Come, come, sir. This site is not maintained by snakes or any other run-of-the-mill reptiles, but by lizards! (Big ones, at that.)

And of course lizards have hands! Just watch any Geico/gecko commercial for conclusive proof. QED

The above hissed in response by: Dick E [TypeKey Profile Page] at June 28, 2006 8:17 PM

The following hissed in response by: Dafydd ab Hugh

Dick E:

The "b-quote" tag works best for block quotations, rather than the "ul" tag.


The above hissed in response by: Dafydd ab Hugh [TypeKey Profile Page] at June 28, 2006 8:37 PM

The following hissed in response by: Big D

The flag burning amendment is idiotic, and an embarrassment to the country.

So we ban flag burning. Then what? Ban having Bush burned in effigy? Ban burning the constitution? Ban burning a copy of the star spangled banner? Ban burning flags of the 50 states?

So they don't burn it, but they spit on it. Rub it in feces. Wear it as underwear and fart alot. Stupid.

Burning the flag is a childish, senseless act. Let's treat it as such. Give the guy a ticket for setting an illegal fire and move on.

The constitution is just a piece of paper. The flag is just a piece of cloth. What matters is the ideas behind them, not the physical objects themselves. America is not a thing, it is an idea. Things can be destroyed. Ideas can live forever.

As Democrats chuckle, I would remind them of the concept of Hate Crimes. Same dumb idea, different wrapper.

It reminds me of the Roman empire and their lost eagles.

The above hissed in response by: Big D [TypeKey Profile Page] at June 29, 2006 10:25 AM

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