Flag Burning
Base10 hasn't really commented yet on the flag-burning ammendment now before the Senate. If you haven't been following the story, the House passed a Constitutional Ammendment with the required 2/3's vote that would empower Congress to criminalize flag-burning and basically overturning the US Supreme Court case of Texas v. Johnson. The bill goes to the Senate and it may very well get the required 67 votes to pass. It would easily win the 2/3's of the state legislatures required for adoption.

Base10 hates to admit this, but he largely agrees with James Taranto on this issue. Taranto wrote yesterday:

No doubt you are dying to know where this column stands on the flag-desecration amendment. The answer is, we are against it. Our view is that the Supreme Court got it right in 1989: Insofar as desecrating the flag is an act of political expression, it is protected by the First Amendment....Burning the flag is a stupid and ugly act, but there is something lovely and enlightened about a regime that tolerates it in the name of freedom. And of course it has the added benefit of making it easier to spot the idiots.

That said, the amendment would be essentially harmless, and we're awfully embarrassed by the overwrought rhetoric of some of its opponents, such as Newsweek's Jonathan Alter:

"My father, Jim Alter, . . . flew 33 harrowing missions over Nazi Germany during World War II. My father is not just a veteran who by all odds should not have survived. He is a true patriot. His litmus test is the proposal to amend the Constitution to ban flag burning, which will come up for a vote next week in the U.S. Senate. For dad--and me--any member of Congress who supports amending the Bill of Rights for the first time in the history of this country for a nonproblem like flag burning is showing serious disrespect for our Constitution and for the values for which brave Americans gave their lives. . . ."

The last time the Senate considered a flag-desecration amendment, in 2000, the vote was 63-37 in favor, four votes short of the needed 67. Among the senators voting "aye" was Max Cleland of Georgia. Thus Jon Alter not only is questioning the patriotism of a crippled Vietnam War hero; he actually has the effrontery to compare Cleland to Saddam Hussein. Meanwhile, the editorialists at the New York Times, who prove each day that monkeys with typewriters cannot produce the works of Shakespeare, also disapprove:

"With the Fourth of July fast approaching, Senate Republicans are holding a barbecue. Unfortunately, instead of grilling hot dogs and hamburgers, they are trying to torch a hole in the First Amendment's free speech guarantee by passing an amendment to the Constitution that would allow federal and state authorities to punish flag-burning. Some things should be out of bounds even in a competitive election year. Messing with the Constitution is one of them."

But the ability to amend the Constitution is part of the Constitution. "Messing with the Constitution" also ended slavery, gave blacks and women the vote, and repealed Prohibition. (OK, that last one is a wash.)

In fact, if the First Congress had refrained from "messing with the Constitution" by proposing the Bill of Rights, there would be no First Amendment. Forget flag-burning; if the Times were true to its principles, it would be against free speech altogether!

Here, here! While I tend to aggree with Taranto on the substance of the issue, you do have to wonder why people can be so opposed to this ammendment? The Constitution is very difficult to ammend. It requires overwhelming consensus and protects against the "tyranny of the majority." But in this case, there is broad-based bipartisan consensus that Congress should have the power to criminalize this act. This is not a threat to American freedoms. It is two branches of government (the tow most closely accountable to the people) telling the third that we have a say in what the Constitution means, too. It is also unfair of some pundits to pooh-pooh people who find this to be an important issue. Some people feel very deeply that there should be some law to stop desecration of the American flag.
- posted by Base10 @ 2:24 PM