As it happens, I agree with this editorial that a flag-burning amendment is a waste of time and effort -- it's not as if there's a national epidemic. But I don't agree with the newspaper's reasoning that such a measure would somehow dilute the First Amendment:
The writers of the Constitution and the Bill of Rights never envisioned freedom of speech applying only to pleasant words. There is no need to amend the First Amendment.
I see the opposite problem. The First Amendment has been expanded far beyond its original intent, including by proposals such as this one. What the writers of the Bill of Rights envisioned was protecting actual speech, especially the robust political speech so vital to a healthy democracy. I doubt very much if they intended to protect nude dancing or Karen Finley's right to smear herself with chocolate in public, but that's where we've come to.
Over the years, courts have moved beyond actual speech and way beyond political speech. The first layer of protection added was "expressive conduct." Since conduct frequently accompanies speech, it makes sense to extend the First Amendment's protections to include such things as picketing and marching and door-to-door solicitations by those such as religious proseltyzers. Then courts went to the next logical step and added "symbolic conduct." That's where we get into such things as nude dancing and flag burning. Courts have been mixed as the First Amendment has pushed into these new areas. In the '60s, for example, the Supreme Court held that wearing peace-symbol armbands was protected, but burning draft cards, because it involved illegal behavior, was not.
The more vaguely defined the connection to the First Amendment and the closer we move to conduct and away from actual speech, the more it is legitimate to ask whether "free speech" is actually involved. There have always been exceptions to free speech anyway. Obscenity, for example, has never been covered by the First Amendment; justices have disagreed strongly on exactly what it is, but no Supreme Court in history, from the most liberal to the most conservative, has ever granted it protection. Defamation isn't protected or breaches of the peace or "fighting words" or incitements to crime or sedition. None of these exceptions involve prior restraint, mind you, but what can or cannot be punished after the deed is done.
The First Amendment was never intended to cover everything people say and do in all places under all circumstances. And, as much as it has been expanded, it still isn't that all-inclusive. As important as the amendment is, it represents one value that must compete with others.
Comments
I think this is just another example of politics gone awry - and it just happens to be happening close to an important election, ... gee, do you think that has anything to do with it ?
I saw a "Republican Strategist" on GMA this morning.
He said this was part of the plan to give GOP candidates something to differentiate themselves from Democrats in the fall- along with abortion and fight gay marriage.
I do not think anyone should burn a US flag. I think it is unpatriotic and anti-American. It makes me angry that morons in America decide to burn American flags.
That being said, I am against an amendment preventing "flag burning."
I think our legislators have enough major problems that need to be addressed that they should not waste their time and our money on this silly amendment...
This is being done by The Republicans to try to drum up their base... It is election year posturing...
If the morons in Congress need some ideas of real problems to fix lets consider:
Gas costs $3 a gallon.
We have a HUGE trade imbalance that is
growing each and every year.
The Federal Government is spending more
per capita then any time since the
height of World War Two.
The National debt is growing rapidly and
there is no plan to pay it off.
There is at least 40 TRILLION dollars in
unfunded liabilities The Federal govern-
ment has no plan on how to pay for.
FEMA just wasted at least 11% of its post
Katrina relief funds on outright fraud.
We have a massive illegal alien problem
that is being ignored as millions more
invade out country.
According to the Governmental
Accountability Office 28% of all Federal
Programs have no demonstrable positive
effect.
I could go on...
Artistic expression wasn't mentioned explicitly, but that's another interpretation of expressive or symbolic rights with near-blanket protection by the First Amendment. In other words, if one burns the flag in the course of a performance art piece, or an episode of "The West Wing," the act is protected. Frankly, I think it likely is.
Still, many things bother me about this push for an amendment on flag burning. In the first place, most people, including me, no doubt feel that the flag, in general, shouldn't be burned as an act of desecration. But that hardly means we are ready to support the use of the nuclear option of a constitutional amendment to have our way on a matter about which reasonable men differ. (I can't help recalling the state of American youth circa 1968, for example.)
Amending the Constitution and Bill of Rights is, and should remain, an awesome responsibility and fearsome business. After all, when we limit freedom (which we do the majority of the time on stuff like this), we affect not only our own generation but unknown generations of our offspring -- who may find themselves in opposing dire circumstances and may well curse us for fools for criminalizing this or that.
I think it disturbs me most that our government wishes to dust off and assemble the machinery for amending the Constitution on such relatively lightweight business as burning a state symbol in effigy.
I don't need to talk at length of the plentiful other effigies burned in protest which are NOT seen as particularly heinous. Just mentioning the subject will bring memories to your minds no doubt -- effigies of presidents, corporate heads, and the occasional infamous defendant, lawyer, doctor, civil servant or celebrity.
So why assemble and demonstrate the terrible machinery of constitutional amendment over flag burning -- especially now, in such a contentious two-culture political environment as this is?
The dangers of oiling up the instrument of constitutional change and using it on a non-critical matter in an election season should be obvious, but I'll mention a few of my concerns in no particular order.
First, using the amendment process for a less-than-crucial business (like freeing slaves or enabling female humans to vote) will almost certainly lower the perceived threshhold for its use. A law against flag burning may seem reasonable -- a relatively innocuous and benign use of the national amendment process, perhaps even a shoo-in for passage by thirty-five state referenda given the right national mood.
If only that were the end of the matter. So let me not bury my lead too far down the post.
Once we have polished up the hardware and run the shiny ordnance around the neighborhood for all to see, once we've re-familiarized our politicians with the operation of the process and given it a shake-out test run on the smaller business of flag burning -- what next?
Will party politicians and other interests begin, like kids watching the new bike roll by, yelling "my turn, my turn!"..? Will they start scheming to plug their own pet interest into the amendment-maker before it's put back in the tool shed? Will they feel entitled to amend the Bill of Rights also "because the Republicans did?" Which language in the Bill of Rights will THEY choose to meddle with when they grant themselves their "turn?"
I prefer to see the engine of constitutional amendment gathering dust in a corner, looking dimly exotic and unfamiliar, until it's truly needed by the nation to address a national issue of sufficient weight, stature and urgency to require it.
Besides, the ten amendments comprising the Bill of Rights should rarely if ever be themselves amended (if that is what the flag burning amendment proposes to do, a spin which I would argue).
We have the Supreme Court to determine the meaning and intent of Articles I-X. It's not a perfect system, but vastly better than re-legislating the Bill of Rights with the changing winds of trends, political majority, and popular opportunism.
I'd be extremely cautious about assembling the working machinery for constitutional amendment, parading it before the latest crop of two-culture politicians, and handing them all a working demo titled "Flag Burning 1.0."
It would be all too easy for other political hacks and hackers to produce other executables like "Church & State 2006," or "Gun Rights Uninstall" or "Free Press Bug Fix."
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No time to edit now. As usual, please excuse typos, overlength, or other informalities in my postings. -S.
Actually, you could argue that the 14th Amendment pretty much turned the whole Bill of Rights on its head by making the first 10 Amendments restrictions on the state rather than limitations on the federal government, as originally intended.
The first amendment has been stretched way too far. How does burning anything deal with "symbolic" speech with deals with "free" speech?
I agree that the first amendment doesn't cover everything. But it surely prevents a school from insanely expelling a kid for his criticism of them, ehem. That is what it is meant to prevent.
Shouldn't the Senate be spending it's time on issues that really matter?
I'm a veteran. I enlisted to make the world safe for freedom, liberty, and democracy.
everybody censors me. if you dont like what i have to say, dont listen, or read. . sorry i served to protect you people from the soviet threat- of censorship, or sexual repression, or economic slavery, ot totalitarianism
I love my country. Its the least screwed up country in the world.
I've burned crosses to piss off christofacists. I read the quran. It hanst made me run off and join al Qaeda. get yours at http://www.cair.org open your mind to other philosophies. tune in, turn on, drop out.
The world is shades of gray (jack- guess what movie line?)
Yes- I/m such a boy scout.
like larry flynt said in "the people vs. larry flynt"- If the 1st amendment will protect a scumbag like me, it will protect you too. (lots of cash helps, too)
where's my zippo?
sometimes you have to burn a village to save a village.
and my village called. they're missing their idiot. gotta get back. bye!
Leo wrote:
...you could argue that the 14th Amendment pretty much turned the whole Bill of Rights on its head by making the first 10 Amendments restrictions on the state rather than limitations on the federal government, as originally intended.
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No doubt, but to the extent the the subsequent amendment attempted to do that, it would itself be unconstitutional, since that interpretation of the Bill of Rights is proveably incorrect.
I'll give a quick example from the amendment I've looked at the hardest, Article II.
Alexander Hamilton explained the rationale for the Second Amendment in the Federalist quite succinctly, in a paragraph or two.
He said that while the majority of Americans were loathe to maintain the large Continental Army after the revolution, the states were desirous of some smaller organized forces for their own security. He said the people in general did not favor even these smaller state militias.
But, Hamilton said, the people need never fear an organized state militia because the people would always maintain the right to keep and bear arms virtually identical to the arms borne by the state militia.
So the amendment was written to embody that logic and rationale: A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed.
But if Hamilton and the other founders could be sure the people's right to arms would never be diminished, they certainly intended the language in Article II to constitute the federal government's guarantee as well.
In fact, none of the Bill of Rights make sense if one tries to read it to mean that the federal government MAY limit the enumerated freedoms while only the lesser governments are prohibited from passing restrictions.
That would mean, for example, that a witness might only "take the Fifth" in a state court or lower. The right not to incriminate oneself might not be protected at the federal judicial level, since the Bill of Rights supposedly does not apply in federal courts.
I'd say the notion that the Bill of Rights embodies guarantees of individual freedom made by the federal government on behalf of the states only is an easy misinterpretation to disprove beyond reasonable doubt.
In fact, one need only point out how preposterous it would be to imagine the founders signing off on a Bill of Rights which restricted state government but preserved federal power to meddle with the freedoms of the various states' citizens. These men were more citizens of their home states than of the fledgling United States.
Imagine the founders approving freedom of religion -- unless the federal government decided differently. The whole (heavily documented) point of the guarantee was to avoid a repeat of England's establishment of the Church of England.
Rare is the person who would seriously argue that the U.S. government retains the power to decree an official national church. Besides, the founders said the rights enumerated were so basic to Americans that drafting a Bill of Rights to affirm them (not create them) was silly, like guaranteeing that the sun will come up each morning.
Let's just say we're lucky they wrote at least a few of them down after all. Lord know what all we've lost because it wasn't in there, and the ones we do have are constantly being reduced by rationalization and willful misinterpretation.
"Imagine the founders approving freedom of religion -- unless the federal government decided differently. The whole (heavily documented) point of the guarantee was to avoid a repeat of England's establishment of the Church of England."
Ah, but the supreme court ruled that the government may infringe on the free exercise clause where it can show a governmen interest to do so.
In JOHN W. AND FAYTHE A. MILLER v. COMMISSIONER OF INTERNAL REVENUE, 114 T.C. No. 32 Docket No. 12310-98. Filed June 23, 2000 IRS testified:
Still, my point is to highlight the ridiculousness of the notion that the federal government was intended to be exempt from Bill of Rights guarantees altogether. The suggestion makes no practical sense.
Wiggle room for taxes and a blank check are two somewhat different things of course, though Ammericans must never fail to be alert for material infringements.
At least, that's my informed opinion at this time. I have a hard time interpreting the exercise of a religion broadly enough to include a freedom to ignore all federal tax and drug law.
By the way, for interested persons, here is a National Archives URL for ALL of the AMENDMENTS, beginning with the Bill of Rights page. (Make sure no carriage return has been inserted into the address before you copy and paste.)
http://www.archives.gov/national-archives-experience/charters/bill_of_rights_transcript.html
The case of JOHN W. AND FAYTHE A. MILLER v. COMMISSIONER OF INTERNAL REVENUE, 114 T.C. No. 32 Docket No. 12310-98. Filed June 23, 2000 was not about not paying taxes, but about requiring them to use a social security number as their ITIN. They were not trying to get out of paying any form of federal income tax, FICA tax or tax at all. They simply wanted the IRS to issue an ITIN. Their belief was the SSN was the universal identifier identified in revelation.
In 1935 when the SSN was first proposed, many millions of people were outraged over being numbered. This is whey the SSN is voluntary, there is no federal law requiring you to apply for a SSN. Both the SSA web site, publications and written statements have publicly presented this view.
The Smiths asked the IRS to assign ITIN to their children and the Secretary refused.
In 1961 the Congress passed 26 USC 6109, identifying numbers. The intent was to improve accuracy of reporting. How do you identify the income of over 800 different John Smiths in Indiana alone? Section C of this statute required the Secretary of the IRS to assign an identifying number to any person. Section d states that anyone issued a SSN must use that SSN as their Identifying numbers except as otherwise specified under regulations by the secretary. Section D never and does not require the individual have a SSN or apply for one. The Smiths never read the statute, but relied on the regulation written by the IRS.
The IRS now requires colleges to require the students SSN prior to admittance. The National ID act now requires a SSN to get a driver's license. Banks will not open bank accounts without a SSN. You cannot obtain a state photo ID without a SSN (can not vote in Indiana without a SSN). A passport requires a no SSN, but the person making payment must be the person who is applying for the passport and must provide their SSN to the US Treasury.
In simple terms you cannot buy, sell, travel, vote or work without a SSN. What is next? The SSN is the most insecure number there is. Terrorists had SSN