The Flag-Burning Amendment
The Senate is debating a constitutional amendment to empower Congress to criminalize the physical desecration of the American flag. Some loosely related thoughts on the matter:
1. Fifteen years ago, a Yale Law School student named Jeff Rosen (the same guy, I think, who now writes regularly for The Atlantic and The New Republic) wrote a fascinating student note arguing that a constitutional amendment banning flag desecration would itself be unconstitutional. In short, Rosen argues that free expression is a natural right retained by the people in the Ninth Amendment; thus, even an amendment to the Constitution could not compel courts to enforce a law criminalizing the exercise of that natural right. See Note, Was the Flag-Burning Amendment Unconstitutional?, 100 Yale L.J. 1073 (1991). The argument is interesting, but I doubt the current state of Ninth Amendment jurisprudence supports it. I'm also skeptical that the Supreme Court would ever take a case challenging the constitutionality of a constitutional amendment, though a kooky appellate judge could force the Court's hand by trying to strike it down.
2. Is flag burning really happening? I really tend to agree with Democratic Senators who argue that conservatives are using debate on this issue to rouse their base into action in November.
3. But let's assume the proposal is not disingenuous; suppose its supporters really are concerned about stopping desecration of such an important national symbol. I wonder whether the amendment might backfire. Would flag-burning become more attractive to political protesters if it were illegal?
4. I think a flag-burning amendment is ridiculously dumb, and I would never vote for it, but I disagree with liberals who think such an amendment would be the end of the world. Their arguments sound an awful lot like slippery-slope fallacies: if we allow the government to tell us that we can't say X, what's to stop them from censoring us from saying Y? Well, the very limited scope of the amendment, for one thing. The proposed constitutional language is: "The Congress shall have the power to prohibit the physical desecration of the flag of the United States."
Too, to what extent are the goals of the First Amendment undermined by the proposed amendment? The conventional view of the First Amendment is that by permitting all ideas to compete in an open public forum, good ideas will succeed and bad ones will be rejected. But is the idea conveyed through flag desecration one that cannot be expressed in any other way?
5. I find this issue fascinating because of the splits it causes among people who usually vote the same way (and unions it creates among people who usually hate one another). Scalia probably has very mixed feelings about the amendment. Communitarians probably have to accept it. Liberal political theorists hate it.
Thoughts?
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[GC] Update: Check out Hendrik Hertzberg's article in The New Yorker on the proposed amendment.
1. Fifteen years ago, a Yale Law School student named Jeff Rosen (the same guy, I think, who now writes regularly for The Atlantic and The New Republic) wrote a fascinating student note arguing that a constitutional amendment banning flag desecration would itself be unconstitutional. In short, Rosen argues that free expression is a natural right retained by the people in the Ninth Amendment; thus, even an amendment to the Constitution could not compel courts to enforce a law criminalizing the exercise of that natural right. See Note, Was the Flag-Burning Amendment Unconstitutional?, 100 Yale L.J. 1073 (1991). The argument is interesting, but I doubt the current state of Ninth Amendment jurisprudence supports it. I'm also skeptical that the Supreme Court would ever take a case challenging the constitutionality of a constitutional amendment, though a kooky appellate judge could force the Court's hand by trying to strike it down.
2. Is flag burning really happening? I really tend to agree with Democratic Senators who argue that conservatives are using debate on this issue to rouse their base into action in November.
3. But let's assume the proposal is not disingenuous; suppose its supporters really are concerned about stopping desecration of such an important national symbol. I wonder whether the amendment might backfire. Would flag-burning become more attractive to political protesters if it were illegal?
4. I think a flag-burning amendment is ridiculously dumb, and I would never vote for it, but I disagree with liberals who think such an amendment would be the end of the world. Their arguments sound an awful lot like slippery-slope fallacies: if we allow the government to tell us that we can't say X, what's to stop them from censoring us from saying Y? Well, the very limited scope of the amendment, for one thing. The proposed constitutional language is: "The Congress shall have the power to prohibit the physical desecration of the flag of the United States."
Too, to what extent are the goals of the First Amendment undermined by the proposed amendment? The conventional view of the First Amendment is that by permitting all ideas to compete in an open public forum, good ideas will succeed and bad ones will be rejected. But is the idea conveyed through flag desecration one that cannot be expressed in any other way?
5. I find this issue fascinating because of the splits it causes among people who usually vote the same way (and unions it creates among people who usually hate one another). Scalia probably has very mixed feelings about the amendment. Communitarians probably have to accept it. Liberal political theorists hate it.
Thoughts?
---------------------------------------
[GC] Update: Check out Hendrik Hertzberg's article in The New Yorker on the proposed amendment.
posted by Garrett at 4:36 PM
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