By Mark Rhoads
Since the post below was published, on Tuesday night the US Senate failed by just one vote to pass an Amendment to the US Constituion that would allow Congress to enact legislation to protect the American flag from desecration. Illinois Senators Dick Durbin and Barack Obama both voted against the amendment. The measure received 66 affirmative votes, one short of the two-thirds affirmative vote required by Article V of the Constituion for Congress to propose an amendment, already passed by the House, that would then be sent to the fifty state legislatures for debate and votes on ratification.
I don't know if the amendment could have resulted in successful prosecutions that were nullified by a 1989 Supreme Court case called Texas v. Johnson. As a practical matter, maybe its true that the amendment would be difficult to enforce through legislation to implement it. But that is why it only empowered Congress to pass laws on this topic. It would not by itself reverse Texas v. Johnson, but would give Congress the opportunity to fashion a new law that would not be overly broad and might meet the court's objections.
The amendments themselves are never self-enforcing, they always require evalutation by prosecutors, defendants, judges, and juries. But Durbin and Obama do not trust the state legislatures to have a thoughtful debate on ratification. If adopted by 3/4ths of the states, Duribin and Obama do not trust their colleagues in Congress itself to write a sensible law with sensible penalties with safeguards and exceptions. They do not trust the prosecutors to use mature discretion in applying whatever law might come from their colleagues in Congress.
What exactly is so terrible about this amendment that Senators Durbin and Obama would feel honor bound to prevent its consideration by the state legislatures including the Illinois General Assembly? After the boilerplate resolved clause, there is only one article and one sentence to the amendment with seventeen words. What are Denators Durbin and Obama so scared of in the text below?
Here is the text.
Resolved by the Senate and House of Representatives of the United States of America in Congress assembled (two-thirds of each House concurring therein), That the following article is proposed as an amendment to the Constitution of the United States, which shall be valid to all intents and purposes as part of the Constitution when ratified by the legislatures of three-fourths of the several States within seven years after the date of its submission for ratification:
“The Congress shall have power to prohibit the physical desecration of the flag of the United States.”
That's is all there is to the amendment. But Durbin and Obama could not bring themselves to even take a chance that their colleagues could be trusted with this subject matter at all. They apparently agree with the 1989 Supreme Court decision that burning a flag is an expression of free speech under the First Amendment and they do not want to allow Americans to ever visit this issue again.
Was the US Supreme Court right in 1989? Many scholars to not agree that they were because lighting the national symbol on fire is an act of implied violence against the deepest held loyalties of millions of people. The "speech" does not advocate anything or advance any idea. The "speech" simply implies that the person setting the flag on fire hates something about the country that flag represents. I thought liberals were not in favor of hate speech and even have voted to outlaw hate speech. But I guess that if the hate speech is directed against the American flag that symbolizes this great republic, then that must be OK with America's most extreme left-wing senators and judges.
As for the Court, it has previously ruled that yelling fire in a crowded theater is not protected speech because it is designed to cause a panic. The principle was first set forth by Justice Oliver Wendell Holmes in 1919 in Schenk v. United States. In fact there have been many cases where the Court has recognized limitations on free speech for good reasons. Yet setting the national symbol on fire is protected protest because it is not designed to cause a violent reaction? Of course it is. Here is where the Court abandoned its own precedents and threw out common sense. Finally, Senators Durbin and Obama even short-circuited their own future ability to write a sensible law that could accomodate free speech and still not inflame millions of Americans who have fought and died for the nation the flag symbolizes. Again, they do not trust their colleagues to write a sensible law with reasonable penalties that fit the crime. Likely it would be a misdemeanor. Burning the American flag to protest something is not part of any long tradition in America. It mostly started in the late 1960s along with burning draft cards. The Court was wrong because their own prior rulings say that acts designed to incite violence are not protected speech. Durbin and Obama were wrong because the flag is due a higher threshold of respect as the national symbol. Federal laws prevent attacks on federal officials. Why not at least afford the possibility of Congressional legislation to protect the most revered national symbol of the country?
To most Americans, the flag is not just a piece of cloth as left-wing extremists argue. Flags are every bit as important a national symbol as the statues and buildings that the Department of Homeland Security is spending so much money to protect. Saying the flag is just a piece of cloth is like saying the Lincoln Memorial is just a hunk of bronze and marble. Free speech is very important in our country and must be protected. But the right is much too important to allow left-wing judges to trivialize this issue by inventing new speech protections for inflammatory acts that are not expressions of speech at all.
