While most Americans oppose burning a flag and I personally find it stupid and annoying, I cannot support the idea of a constitutional amendment to deal with the act. My problem is that doing so would expand government power in the constitution and limit the freedom of citizens, both codified forever in the document. When an amendment is added to the US Constitution, it is forever - it can be overturned by a later amendment, but it remains in the document. For example, the 18th amendment prohibited the sales of liquor in the US. The 21st amendment overturns the 18th. An odd system, but that's how legal and procedural systems work.
Adding a ban on some action by citizens to the US constitution goes in direct opposition to the purpose and philosophy behind the document - to limit federal government power. Further it limits freedom of citizens, again a violation of the concept and purpose of the document.
Burning a flag is idiotic and deliberately offensive, but there's nothing especially sacred or holy about a brightly decorated piece of cloth. I try to respect the way I handle a flag simply because I respect what it represents, but there's nothing about the flag its self that is particularly special or to be revered. This amendment would elevate the piece of cloth, the symbol to being similar or equal to what it represents, which I also reject.
There's another side to this, though. I also reject the concept of flag burning being free speech. The primary purpose of the 1st amendment's protection of free speech was to allow free expression of political content, to prevent interference or punishment of dissent and discussion of government activities. This is one of the most revered rights of Americans, one we take very seriously and defend rigorously. But burning a piece of cloth has little to say one way or another.
Ace of Spades Headquarters had a short report on this vote:
Only garnered 66 votes, rather than required 67.
But that's all a good blogger with a vital commenter community needs for a good discussion to get going. In that discussion, a commenter named Jack M. had some excellent thoughts on the topic:
BrewFan and C.Taylor are essentially getting to the point of the Rehnquist written dissent in the 5-4 case characterizing flag burning as speech.
Rehnquist wrote (and I'm trying to go from memory so it may not be exact) that flag burning was essentially meaningless, i.e. that it was no more than an "inarticulate grunt" while political speech was an "articulate roar".
Personally, I am sympathetic to the dissenters in the case. The problem with classifiying "flag burning" or "cootch grinding" or "cross burning" as protected political speech is that the message is usually left to the recipient of the message to determine. To cop a phrase from Goldstein, while the flag burner may have "intended" to convey one message, the recipient may receive quite another.
As an example: if you see someone walking down the street and they are burning the flag, what message is being sent?
Are they a moonbat protesting the Iraq War?
Are they a neo-nazi protesting American ties to Israel?
Are they protesting the IRS code for taking too much or too little?
Are they protesting the death penalty?
Are they protesting porous borders?
Are they protesting the lack of immigration amnesty?
Are they just casting a blanket "I hate the US" message?
And on and on. You really have no idea what "political speech" they are suggesting. Taken alone, you don't even know from observing their act, that you don't agree with them!
I believe that political speech must convey sharper meaning to the recipient. One must be able to read, or hear the message and process the information being sent. Think of it as "strict interpretaion" methos for analyzing political speech.
The minute you start allowing meanings to be whatever a recipent determines it to be, is the minute that the act loses all meaning whatsoever, except to serve as a base provocation. It devolves from an "articulate roar" to an "inarticulate grunt".
Just my two cents. I would have voted to pass the amendment and allow the states (the majority of which had statutes criminalizing flag burning prior to the USSC's intervention) to take up the issue.
I agree with his problem here - just as he agrees with my previous point on the site. How is this free speech? Nothing is actually being "said" either by word or deed, other than a very generalized act of offense. The founding fathers did not mean this kind of thing with the 1st amendment, and I reject the notion that - for example - burning a cross is not free speech but burning a flag is. Neither is in my opinion, and I finally reject the steady, incremental amendment of the constitution by judges making decisions for the last 50-100 years.
We have a system to amend the constitution, we just saw part of it in action. 4 lawyers in black robes making a decision is not part of that system. There should be no amendment neccessary, this ought to be up to the states to ban or allow as their voters see fit. That's the American way.
Commenters at Ace had a great discussion of the topic, including these thoughts (although many apparently thought the decision went the other way, the minority being opposed to the amendment):
I gotta side with the minority I think.
I get as pissed as anyone seeing the U.S. flag desecrated (to the point of physical confrontation), but hell if I want to see that desecration banned.
It is ultimately free speech in my book.
I wanted it to pass. There is nothing wrong with Americans wanting to protect a national symbol. We don't allow the Washington Monument to be spray painted. This fallacy that protecting the flag somehow erodes our freedom is a bunch of hogwash. You mean to tell me somebody can't make the same point without burning an American flag?
You mean to tell me somebody can't make the same point without burning an American flag?
The mental midgets burning flags can't make their points outside of an act designed to garner the most visceral response.
GOTC mentioned the irony in their act. It is to our credit that we permit them to do what they do, and allow them to be rebutted by the inherent hypocrisy in burning our flag by way of protest.
It is emblematic of the strength of our constitution and our civilization that we can endure such juvenile acts with stoicism and no small amount of ridicule.
The Washington Monument is just that, a monument. Its status as a publicly-owned piece of property (but not as a symbol of the United States) prevents it from wanton spraypainting by vandals. If you own something in this country, there is little if anything you cannot do with it so long as you don't subject others to harm or nuisance. (And do note that "nuisance" is used as a legal term of art, not in its looser plain English sense.)
You mean to tell me somebody can't make the same point without burning an American flag?Most people embroiled in poltical arguments the nation over could probably find a better, more elegant, or less offensive way to make that argument; that doesn't mean we should compel them to do so. The only crime they commit is one of taste. In fact, I agree with James Taranto that flag-burning has the prophylatic effect of allowing us to quickly identify and label the idiots.
-by Jeff B.
Please explain to me how flag-burning is a 'freedom'.The flag is not the country. It is a symbol. And, as such, means a lot of different things to different people.
You don't like those that burn flags. Great. Neither do I. But I also think it says more about them that they want me to know.
And, please, how do you expect to enforce this ruling? Once you forbid it, you only incite the desire of those who want to get noticed, even if it means their spending time in jail.
Or should they be put to death?
Burning the flag, obnoxious as it may be, is nothing more than expression of one's first amendment right to freedom of speech.
Chalk me up for a nay, and can we please turn our attention to more serious matters like preventing a million f*cking illegals from rushing across our border this year?
Anyone, Republicans? Hello? Bueller?
I'm sorry I can't get with you guys who somehow think letting a revered symbol be desecrated is altruisticYou're right. Desecrating the image of Muhammed by portraying him in cartoon form should be illegal.
-by The Warden
F*cking designated hitter is an abomination and a blaspheme against Abner (praise be upon him). We are talking about America's game, something many if not most American's revere. Nothing is more American than baseball, apple pie and Chevrolet.
Still, probably not a good idea to pass a constitutional amendment banning the DH.
Then should we have the right to burn the rainbow flags that the eco-freaks gay rights freaks carry around and we should also have the right to burn the UN flag as well and we should have the right to hang and burn a effegy of all those rotten left-wing senators after all its freee country still
-by Spurwing Plover
Actually, Bubba, the answer to your question is both yes and no.
While you could not be punished for the odious act of burning the flag (per se, although you conceivably could be punished for lesser offenses, such as demonstrating without a permit) you COULD in many jurisdictions be prosecuted for committing a hate crime with regard the similarly despicable act of cross burning.
So burning the cross: prohibited speech, even if arguably it may or may not be a political statement, and not a constitutionally protected right. Burning the flag: allowable speech, even though it arguably may or may not be political speech, and constitutionally protected.
The lesson...to avoid run-ins with the law, burn flags, not crosses.
-by Jack M.
I have to go with the no ammendment folks as well. Speech is speech and should be protected. I can hate the burners, I can write or speak out against them and their ideas, but ban their speech? No.Address my question; how does a law against flag burning erode individual liberty? If you're going to argue 'free speech' you'll have to tell me why you should be allowed to yell 'Fire' in a crowded movie theatre
Not directed at me, but well, who cares.
Anyway, first, arguing that flag burning is speech does not equate to shouting fire in the theater. One is obviously a public danger and a lesson in the need for discretion and the second is well, speech.
As to why such a law or ammendment would erode liberty, I just can't believe it's not apparent. I am a patriot, therefore I support no ammendment. I support the free expression of ideas, even ones -especially ones- I disagree with. Any attempt by the government to limit the free expression and exchange of ideas unless public safety/health or national security are at issue is too much. What comes after the flag? What's the next thing we're not allowed to say or talk about? What form of expression will be made illegal next?
It's like the the definition of marriage amendment: most people agree with the sentiment and yet it's never going to pass the senate and get ratified by enough states.. It's just the repub senators posturing and saying, "See how conservative we are? Never mind how we've f*cked up since the last election, this shows we are truly conservatives!"
I would have preferred they show us by less spending and permanent tax reductions, but hey, that takes real discipline.
On the plus side, it drives the liberals crazy to called on their anti-americanism, so I guess it's worth it to bring it to a vote.
-by Log Cabin
I just believe that the crime (and I do believe it to be a crime) of burning our flag should not be solved by adding an amendment to the Constitution.
You cannot change people by passing laws that require them to be decent, no, just not a good way to go about it. The nation is still suffering from knee-jerk civil rights laws that, while offering an instant looking solution to a problem, in reality have done much to make the overall situation less tenable.
If you want statutes against flag burning, it should be addressed at the state and local level, that's my take on it.
In the meantime, if I ever seeing someone attempting to burn the flag that some of my friends fought, were wounded and died for, that miscreant will have to deal with me.
I think they'd much rather have dealt with John Law at that point, don't you?
-by The Machine
For more information on US flag burning around the world, the Flags of all Countries website has a map of countries old glory has been burned in, as well as a massive flag-burning picture archive.Legal Matters