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June 23, 2005
Addressing The Symptom And Not The Disease

The House passed a Constitutional amendment that will guarantee Congress the power to regulate how the flag is treated, including the power to outlaw "desecration" of the American flag, on a fairly bipartisan vote. The measure now goes to the Senate, which has killed it in years past on a more partisan basis, but the Washington Post reports that may change this year:

A constitutional amendment that would allow Congress to ban flag burning passed the House yesterday, and congressional leaders said it has a strong chance to clear the Senate for the first time, sending it to the states for ratification.

The House has passed the measure four times before, but it has always fallen short of the two-thirds vote needed in the Senate. But several changes in the Senate shifted several votes to the bill's supporters, and a lobbyist who leads the opposition said the absence of one or two senators could mean that the measure would pass.

"There are too many scenarios where we lose," said Terri Ann Schroeder, senior lobbyist for the American Civil Liberties Union. "We're very concerned." Schroeder counts 65 solid votes in favor of the amendment of the 67 needed for passage. "We still have a number of folks that have never voted, and we still have a potential problem if 100 members do not . . . vote," she said.

The issue has been a favorite of conservatives since a 5 to 4 Supreme Court ruling in 1989 that protected flag desecration as free speech.

Normally, I would favor almost anything the ACLU opposes just as a guidepost to common sense. In this case, however, the proposal has two major flaws, both of which I believe are ultimately fatal to the intent of the amendment, which is to stop people from burning the flag at protests. And while I'll wind up on the side of the ACLU as far as this amendment goes, their approach to the subject comprises at least a major part of one of its flaws.

First, practically speaking, the amendment doesn't necessarily create a ban on flag desecration; it merely gives Congress the opening to do so to counter the Supreme Court's decision determining that desecration is political speech. Congress can then pass laws on a majority basis to enable and enforce a ban. However, questions about what constitutes a flag, what constitutes desecration, and how law enforcement should enforce it will dog Congress. It's easy to posture, but given the ability, I don't see this as a practical or pressing law-enforcement issue, especially when the terrorists are probably the least likely to out themselves by lighting up Old Glory in public -- at least not in the US.

Can it be done? Sure, but all that will wind up happening is that a lot of people will get hauled into court to get their hands slapped, and since it will be a federal crime, the cases will jam the federal courts. Instead of burning "real" flags, people will start burning paper representations. Will that fall under the ban, or does the flag have to be cloth to be desecrated?

Second, and in my mind more important, the push for this amendment comes from Congress' (correct) impulse to push back against an activist court that creates new rights and laws out of thin air. In this case, we have a court decision that made arson equivalent to political speech and untouchable by law, while a subsequent court ruled that actual political speech could be subject to prior restraint when conducted in conjunction with an election, thanks to the BCRA, John McCain, and Russ Feingold. The amendment in this case shouldn't be that narrow -- it should recognize that speech doesn't consist of anything else but the verbal or written publication of actual speech, not arson, nude dancing, or blowing up buildings, which is the logical extension of the 1989 decision. Everything else should be left to the Legislature to regulate.

In fact, the solution here isn't even an amendment. It is to nominate and confirm judges that not only will stop looking for emanations from penumbras that don't exist in the Constitution and will respect the division of powers instead of creating laws themselves. We need justices who understand that the so-called "living document" only means that it can be amended by the people when so desired, but otherwise means what it says. These ideas aren't radical, despite recent partisan mudflinging to the contrary.

The fact that two-thirds of the Senate appears to be ready to vote to approve this amendment shows a bipartisan recognition of the problem. Those who vote to approve this mistake should be held accountable for their inability to approve justices that would correct the actual problem of judicial activism and will reverse the most egregious examples of its implementation when the opportunities arise, starting with that 1989 decision that kicked this entire battle into high gear. Otherwise, what we will have will be hundreds of amendments addressing narrow issues that will create massive confusion and complications for legislatures and law-enforcement efforts. We will have the EU Constitution instead of the compact framework that has served us so well for the last two centuries.

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Posted by Ed Morrissey at June 23, 2005 5:36 AM

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» The death of free speech from Swerdloff Dot Com
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» Not everything bad needs to be illegal... from LyfLines
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Tracked on June 23, 2005 8:49 AM

» Flag Burning Amendment from Secure Liberty
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Tracked on June 23, 2005 11:51 AM

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Tracked on June 23, 2005 12:18 PM

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Tracked on June 23, 2005 12:35 PM

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» The Constitution Has Officially Been Crapped On from Multiple Mentality |
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» Symbol Desecration from's Columnist Team

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