Early Thoughts on the Flag Amendment
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"The Congress shall have power to prohibit the physical desecration of the flag of the United States."
--Proposed Flag Protection Amendment
"[A] government cannot mandate by fiat a feeling of unity in its citizens."
--West Virginia Bd. of Ed. v. Barnette, 319 U.S. 624 (1943)
I'm not very well briefed on the politics of the Flag Protection Amendment. Rumor has it that the Senate is one or two votes shy of the 67 needed to approve. And who knows what chance it has among the states (remember, only 13 states need fail to ratify it for it to be dead, dead, dead).
Having said that, were the amendment to be ratified, here are some initial thoughts:
1. The amendment says that Congress shall be authorized. Which invites the question: what about the states? If the intent is for only federal anti-desecration laws, then so much for conservatives championing "federalism." If not, then it's a horribly crafted proposal — if flag-desecration is so terrible, then why not let the states criminalize it too? (SIDEBAR: Forty-eight states had flag protection laws before the Supreme Court declared flag desecration protected under the First Amendment in Texas v. Johnson, 491 U.S. 397 (1989).)
2. The amendment is only what is called an "enabling amendment" — it doesn't actually outlaw flag desecration but merely authorizes Congress to proceed. (Compare: The Thirteenth Amendment expressly abolished slavery; the Eighteenth Amendment expressly outlawed alcohol.) One wonders whether, amendment in hand, Congress would actually follow through and pass any flag protection laws. Or might a ratified flag desecration amendment quickly go the way of the Third Amendment?
3. The conservatives who are championing this amendment are the same conservatives who decry "judicial activism." Yet this amendment would expressly require judges to be "activist" in applying it. No matter how much implementing legislation Congress were to enact following the ratification of this amendment ("What is a 'flag'?" "What is 'desecration'?" "What is 'physical'?" "Is anyone exempt (e.g., artists)?" "Are any contexts exempt (e.g., movie portrayals)?") These would all require a vast new branch of judicial interpretation. Oh, sorry, I believe the conservative term is "judicial activism." Go figure.
4. Stated differently, amendment notwithstanding, any court ever hearing any flag desecration case could simply argue that the amendment, and any implementation statutes passed under it, are unenforceably vague anyway. The Supreme Court has neglected the Ninth Amendment to the point where it is a nullity (or "inkblot"), and expressly "vetoed" Fourteenth Amendment Privileges & Immunities just five years after that amendment was ratified. The Court could simply do the same for a flag desecration amendment: "Yes, yes, flag desecration, very nice, good for you — but we as judges simply don't know how to adjudicate these issues for you, so, um, we're not even going to try. Have a nice day."
Hopefully the amendment will die quietly in the Senate or among the states and these questions need never be answered.
In any case, a free society is supposed to protect people, not objects. How sad that such a remedial concept is lost among our "enlightened," activist politicians.
Other thoughts at:
Gene Healy
Coyote Blog
Diminishing Returns
Purple America
As I Please
Dispatches from the Culture Wars
Where the Dolphins Play
Suggested Reading:
--Proposed Flag Protection Amendment
"[A] government cannot mandate by fiat a feeling of unity in its citizens."
--West Virginia Bd. of Ed. v. Barnette, 319 U.S. 624 (1943)
I'm not very well briefed on the politics of the Flag Protection Amendment. Rumor has it that the Senate is one or two votes shy of the 67 needed to approve. And who knows what chance it has among the states (remember, only 13 states need fail to ratify it for it to be dead, dead, dead).
Having said that, were the amendment to be ratified, here are some initial thoughts:
1. The amendment says that Congress shall be authorized. Which invites the question: what about the states? If the intent is for only federal anti-desecration laws, then so much for conservatives championing "federalism." If not, then it's a horribly crafted proposal — if flag-desecration is so terrible, then why not let the states criminalize it too? (SIDEBAR: Forty-eight states had flag protection laws before the Supreme Court declared flag desecration protected under the First Amendment in Texas v. Johnson, 491 U.S. 397 (1989).)
2. The amendment is only what is called an "enabling amendment" — it doesn't actually outlaw flag desecration but merely authorizes Congress to proceed. (Compare: The Thirteenth Amendment expressly abolished slavery; the Eighteenth Amendment expressly outlawed alcohol.) One wonders whether, amendment in hand, Congress would actually follow through and pass any flag protection laws. Or might a ratified flag desecration amendment quickly go the way of the Third Amendment?
3. The conservatives who are championing this amendment are the same conservatives who decry "judicial activism." Yet this amendment would expressly require judges to be "activist" in applying it. No matter how much implementing legislation Congress were to enact following the ratification of this amendment ("What is a 'flag'?" "What is 'desecration'?" "What is 'physical'?" "Is anyone exempt (e.g., artists)?" "Are any contexts exempt (e.g., movie portrayals)?") These would all require a vast new branch of judicial interpretation. Oh, sorry, I believe the conservative term is "judicial activism." Go figure.
4. Stated differently, amendment notwithstanding, any court ever hearing any flag desecration case could simply argue that the amendment, and any implementation statutes passed under it, are unenforceably vague anyway. The Supreme Court has neglected the Ninth Amendment to the point where it is a nullity (or "inkblot"), and expressly "vetoed" Fourteenth Amendment Privileges & Immunities just five years after that amendment was ratified. The Court could simply do the same for a flag desecration amendment: "Yes, yes, flag desecration, very nice, good for you — but we as judges simply don't know how to adjudicate these issues for you, so, um, we're not even going to try. Have a nice day."
Hopefully the amendment will die quietly in the Senate or among the states and these questions need never be answered.
In any case, a free society is supposed to protect people, not objects. How sad that such a remedial concept is lost among our "enlightened," activist politicians.
Other thoughts at:
Gene Healy
Coyote Blog
Diminishing Returns
Purple America
As I Please
Dispatches from the Culture Wars
Where the Dolphins Play
Suggested Reading:
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Posted by KipEsquire on
23 June 2005
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