A Stitch in Haste

Here is the exact text of the proposed Flag Desecration Amendment, S.J. Res 12, H.J. Res 10:

The Congress shall have power to prohibit the physical desecration of the flag of the United States.

Let's put aside for the moment any questions of the First Amendment, which the Flag Desecration amendment would partially repeal. If this were a statute, it would be unconstitutional, not only because of the First Amendment (see Texas v. Johnson, 491 U.S. 397 (1989), but also because it would be unjusticiably vague.

--What is "physical desecration"? Is hanging a flag upside-down "desecration"? Is soaking it in mock blood? Dragging it through the mud? Cutting a hole in it?

--What is a "flag"? Is a computer animation of flag-burning a flag? Is a stars-and-stripes hat or pair of socks a "flag"? Is a postcard with a flag on it a "flag"? A picture of a flag?

--What is the "flag of the United States"? Is a Colonial-era flag protected? A pre-Alaska flag with 48 stars? A confederate flag?

--What about the rest of the Constitution besides the First Amendment? Current constitutional jurisprudence holds that later amendments do not necessarily repeal earlier parts of the Constitution (see, e.g., the interstate wine cases). If two consenting adults have cognizable rights in the privacy of their own bedrooms under the Fourth and Fourteenth Amendments (see Lawrence v. Texas, 539 U.S. 558 (2003)), then do they not also have the right to desecrate a flag in the privacy of their own bedroom?

In short, any legislation passed by Congress in the wake of the ratification of this amendment would crash head-on into the Vagueness Doctrine and other constitutional problems. And, in the end, it would not protect the flag (which, some of us still insist, does not need protection from anyone other than the government itself).

The Supreme Court has a nasty habit of declaring portions of the Constitution nullities — see this post. What would stop the Supreme Court from declaring — indeed what choice would they have but to declare — that this amendment and any legislation it were to spawn would be hopelessly unjusticiable and therefore merely a symbolic gesture with no real legal impact?

More thoughts from Below the Beltway, PoliBlog, Donklephant To The People.