Justus For All

Here’s an interesting column, written by Nat Hentoff,at The First Amendment Center’s website.

http://www.firstamendmentcenter.org/commentary.aspx?id=16944

An interesting quote:

“The only countries I know that punish the desecration of their flags are China, Iran and Cuba.”

That’s not exactly the type of company I think most Americans would want to be part of.

To me, the problem with the flag-burning amendment is that it is designed to play on emotions, not reason. And the majority of Congress knows all too well that the best way to play to voters is to play to their emotions, hence why they tout things such as how much money they got for their voters (read: pork projects) and how voting on this issue or that issue shows they play to the party line.

I personally feel more people should hear the words of James Warner and his description of his time being held in solitary confinement in Vietnam (Hentoff refers to this in his column linked above). That wasn’t about emotions, that was about reason.

Thanks for posting that Bob. I have to say though, that while I am in agreement with the position that article takes, I am not in agreement on the tactics used to advance that position.

You rightly point out the dangers of playing on emotions, rather than reason, and the article you link to is based on using that method. While I think the ammendment would be wrong and foolish, it is a gross exageration to say it would ‘burn the constitution’, constitute a ‘desecration of the First Amendment’ or ’set fire to the Bill of Rights.’ If the flag burning ammendment passes and is ratified, I think it will be a mistake but it will not be the end of all our freedoms or signal the immanent ascendancy of totalitarianism.

On a similar not, the comparison to China, Iran and Cuba leaves a lot to be desired. First off, the ‘he knows of’ qualification seems to leave a lot of wiggle room. Has he researched this at all and couldn’t find any others or did he just happen to know of those three and called it good. Even more signifigant, is that even if this factoid is true, it doesn’t present a very accurate picture of freedom of speech in the rest of the world. Even many nations that we consider quite free have prohibitions on speech that exceed our own, European prohibitions on Nazi symbols for exampale. While I disagree with those as well, it seems clear that limiting speech in this way won’t make us into Iran.

It may be that emotional arguements against this ammendment are the best means of assuring that it does not pass. I have my doubts about that however. The emotional playing field seems to favor the anti-flag burning side and keeping the contest there does not seem wise to me as a result.

In addition, this sort of arguement makes those who favor this ammendment not just wrong, but ‘evil.’ It is my expirience that calling someone ‘evil’ for their beliefs does not tend to make them amenable to reason or willing to change their beliefs. Sometimes evil is just that, and people deserve to be placed in that category, but I find it hard to make that judgement of someone who believes that burning the flag is so offensive that it cannot be allowed. Most of them are, I believe, good people who haven’t thought it through.

Even if this tactic is the most effective at combating this ammendment, I don’t approve of it. Emotionalism and painting everything black and white is a short term game. It may create a desirable outcome in the near term, but it poisons the well in the long term and is far more costly than and benefit that is gained from it.

Dave, you are correct about the freedom of speech issues throughout the world and that they vary greatly, many which are more restrictive than the United States.

I do think debating which nations have laws prohibiting desecration of the flag is worthy of discussion. I did a brief search of Wikipedia to see what I could learn and didn’t learn that much. Wikipedia makes no mentions of China or Cuba, but does mention, for example, Denmark, a nation that prohibits burning the flags of foreign countries but not its own flag.

For me, personally, the biggest problem with the amendment as it is written is it ambiguous. To some people, taking a flag design and printing it up on a pair of bicycle shorts is wrong. How does the amendment address that? As it is written, it would be up to Congress, or possibly the states, to decide that.

What about somebody who isn’t familiar with flag etiquette such as, for example, the proper way to fold a flag? I learned that in Boy Scouts, but I don’t recall ever being taught that in school. Would we have to start doing teaching it in school? And if somebody not familar with flag etiquette does not fold the flag properly, are they in violation of the law if the amendment passes?

While I would imagine the practice of burning a flag that is tattered and torn would be listed as exempt in any legislature passed, it should be noted that such practice has nothing to do with taking a political stance.

They may seem like insignificant questions, but if they aren’t answered, it could lead to “picking and choosing” what is and isn’t considered a “flag” or “flag desecration.”

Plus, I’d imagine the courts would again be having a field day with interpretations of the amendment should it pass, much as they do with the amendments that are already in the Constitution.

While the ammendment is ambiguous, that I think is a point in its favor rather than against it.

The ammendment would not make flag burning illegal, it would simply allow Congress to pass legislation that would make it illegal. Presumably, Congress would have a fair amount of latitude to determine what was ‘desecration’ and could define it, and provide whatever exceptions it wanted.

I also think that the ammendment is fairly clear, and wouldn’t result in a whole lot of court cases or be subject to much wild interpretation.

That is not to say that I support this, but if it is going to be done, this is a better ammendment than some I could imagine.

A couple of fairly disjoint things.

First, on the issue of flag etiquette. I’m all for teaching it in school; hell, I learned it in public school myself (granted, this was a JROTC program, not a normal civics class). I don’t think breaches of flag etiquette should be crimes, but they certainly ought to be looked down on. That would be easier if we all had a common base of knowledge on this; there could be no excuse-making to the effect of “I didn’t know which side the union hangs on.”

Second, I think Bob’s inadvertently touching on something important here:

Plus, I’d imagine the courts would again be having a field day with interpretations of the amendment should it pass, much as they do with the amendments that are already in the Constitution.

This is undoubtedly true. More than that, though, I think this point underscores the real driving force behind the flag amendment as well as the marriage amendment. The basic fact is that American judges have gotten way, way out of line. Every day lawyers in black robes usurp the sovereignty of the American people to enact their personal policy preferences. In the face of such abuse, many people want to reassert some control. The actual subject of the various proposed amendments isn’t that important; what is important is the process by which the people say to the judges “it’s our Constitution, not yours.”

Brian, while I agree that some judges are going over the line with interpreting laws, the problem comes when somebody questions whether something is allowed under the Constitution or not and neither the President nor Congress is willing to act.

The Supreme Court is the one with the final say in the judicial process and I’m not opposed to them deciding such cases. It might be better to streamline the process so that all cases in which somebody raises a constitutionality issue needs to go directly to the Supreme Court. That way, you get just one court’s interpretation and other judges can stick to the primary duties of determining guilt or innocence in criminal cases, or liabity in civil cases.

We must remember, while it’s not good for the courts to be legislating, that public opinion on whether or not it should happen should have more to do than with whether or not they agree with a court ruling. For example, the Supreme Court has previously ruled pornography is not protected by the First Amendment, and there are those who would say that was OK while saying it was not OK for the Supreme Court to say flag burning was protected. Those people can’t have it both ways… either the Supreme Court can rule on such matters or it can’t.

And we also must remember that this process of courts deciding constitutionality of laws dates all the way back to Chief Justice Marshall, so that process, in itself, is nothing new.

And your quote “it’s our Constitution, not yours” could be said as well to members of Congress who toss various amendment proposals simply as a political ploy. The flag burning and gay marriage amendments are coming up during times in which some of the public is losing faith in Congress to get things done when it comes to more pressing issues, such as the immigration debate, economic policies, how things will be resolved in Iraq and social security (the last one seems to have been shoved to the backburner, unfortunately). Consequently, these “emotional” issues are brought up in an attempt to win back voters.

This claim

the problem comes when somebody questions whether something is allowed under the Constitution or not and neither the President nor Congress is willing to act.

is extremely problematic. The government of the United States is not charged with determining whether each and every possible act by any person or legal entity is “allowed”. (There’s a word for governments who are charged to do so. That word is “totalitarian.”) If the President and Congress choose not to act to explicitly adress a situation, that doesn’t mean that the Court needs to step in. It just means that the government has no interest in the situation. If you don’t like it, take it up with your Congressman. Citizens in this position shouldn’t ask sympathetic courts to fold, spindle, and mutilate the law to adress their concerns, and the courts most certainly should not oblige them. To do so is, again, to usurp the sovereign authority of the people of the United States. (Or did it not occur to you that sometimes Congress doesn’t act because Congress thinks that not acting is precisely the right thing to do?)

Also…your last paragraph is way, way off. The role of the courts and Congress are in no way similar. Congress and the people are specifically empowered by the Constitution to amend it if need be. So, when Congress takes up an Amendment it is doing one of the jobs set out for it in the Constitution. By contrast, when the Court alters the meaning of the Constitution by judicial fiat, it is usurping this authority that is properly Congress’s. Congress can’t, by definition, usurp authority that rightfully belongs to Congress. This is true regardless of what you think Congress’s motives are in considering any particular amendment.

Despite your insinuation to the contrary, this is not about results to me. It’s about process. It’s about sovereignty, and who holds it. Are the people sovereign, or is the government? Are we to be a nation of laws, or of men? We have always said that we are a nation of laws. But here’s the thing: laws only have value when the average person can determine what is and is not “allowed” by reading them. That means that the law should be written in plain English, and that the plain English meaning of the law should be enforced. When the Constiution says “Congress shall make no law”, then, damn it, it means that Congress shall make no fucking law. It doesn’t mean that “Congress shall make no law unless it feels like it needs to in order to mitigate the importance of money in elections.” To choose the latter is, like it or not, to choose a nation of men and not laws. Because when the law can mean anything, then the men who decide what it actually does mean rule with something like absolute power.

The problem with your argument comes with the fact that there has always been the argument of “what exactly does the Constitution say.” There has been debate on what various articles and amendments of the Constitution truly mean/define (the 14th Amendment is the perfect example).

And that’s where the problem lies with writing the courts entirely out of the equation, especially when the process has to start in the courts, as was the case of Marbury v. Madison. The courts had to take the process up of whether or not Marbury was entitled to the commission Madison refused to deliver, and Marshall concluded that enforcing the law in question would conflict with the Constitution and the Constitution must be what the courts follow (although it has been debated as to what factors led him to his argument).

The questions Marshall asked were, as quoted from Wikipedia: http://en.wikipedia.org/wiki/Marbury_v._Madison

“Did Marbury have a right to the petition?
Do the laws of the country give Marbury a legal remedy?
Is asking the Supreme Court for a writ of mandamus the correct legal remedy?”

In answer to the first two, Marshall said “yes.”

It’s the third question where “interpretation of the Constitution” comes into play. Again, quoting from Wikipedia:

“In analyzing the third question, Marshall first examines the Judiciary Act of 1789 and determines that the Act purports to give the Supreme Court original jurisdiction over writs of mandamus. Marshall then looks to Article III of the Constitution, which defines the Supreme Court’s original and appellate jurisdictions (see Relevant Law above). Marbury had argued that the Constitution was only intended to set a floor for original jurisdiction that Congress could add to. Marshall disagrees and holds that Congress does not have the power to modify the Supreme Court’s original jurisdiction. Consequently, Marshall finds that the Constitution and the Judiciary Act conflict.”

And that brings us back to the question: Is judicial review an acceptable practice?

If your answer is “no,” then in Marbury v. Madison, the only conclusion that you can reach is Marshall did not have the authority to declare the Judiciary Act in question unconstitutional. Whether you agree that the act was unconstitutional or not is irrelevant when debating whether judicial review is acceptable.

If your answer is “yes,” then you can only reach the conclusion that, sometimes, the courts have to decide on constitutionality of laws in order to properly function. Again, whether you agree that the act was unconstitutional or not is irrelevant when debating whether judicial review is acceptable.

More about Marshall’s arguments are detailed on the Wikipedia entry and people are certainly free to agree or disagree with the arguments.

But when it came to Marbury v. Madison, it was not a case of the Constitution saying “Congress shall make no law” as you state. It was a case of Marbury arguing “This is what was written in the Constitution, and this is acceptable under what is written” whereas Marshall argues “no, it is not acceptable” and both are based on interpretations of the Constitution.

It is true that Article III doesn’t explicitly state that the courts can declare a law unconstitutional… but again, Marbury was offering, in his argument, his own interpretation of what the article says with regards to whether or not Congress has the power to modify the Supreme Court, and because his answer was the article did not say that, then the article in the Constitution takes precedence over laws Congress passes.

That, in a nutshell, is what led the Supreme Court in its original decision on flag burning. The majority of the justices believed a law prohibiting descreation of the flag was in conflict with the Constitution, based on the court’s majority interpretation of what the Constitution says/means.

And I will stand by my argument that the courts over-using judicial review and Congress over-using its ability to propose amendments are the same, regardless of the fact that one is clearly spelled out in the Constitution and the other is not clearly spelled, in that both can lead to problems if not carefully used.

With regards to the Constitution, the flag burning and gay marriage amendments are not the only amendments that have been proposed in recent years. Here is a partial list of amendments propsed in recent years:

http://www.usconstitution.net/constamprop.html

Now, while I grant that every proposal went through the proper process, the fact there have been so many amendments tossed out leads to me to the conclusion that it is important to exercise care in considering such amendments, for the simple fact that the Constitution is the supreme law of the land.

It is worth noting that some of the amendments proposed have a connection, whether direct or indirect, to Supreme Court decisions.

Which brings me to this: Those who wish to pass these amendments to tell the courts that they disagree with the practice of judicial review are going the wrong way. If all you do is pass an amendment every time the Supreme Court rules something is unconstitutional, you end up with a Constitution that becomes cluttered, yet the Court could still have issues brought to it that it would rule on.

A simpler method for bringing the practice of judicial review to an end is to amend the Constitution to state something to the effect that the courts cannot decide whether or not a law passed conflicts with the Constitution. Whether that is something that should be added to the Constitution is a matter of debate.

But regardless, it’s much easier for Congress to play to voter emotions by proposing amendments that have to do with certain beliefs voters hold, rather than how the political process should play out. The process for amendments may be spelled out in the Constitution, but that doesn’t mean it’s impossible for Congress not to play to voter emotions when going through the process. The list of proposed amendments includes topics that I believe would be silly to include, but clearly do play to an emotion.

OK, I’m finished.

“but again, Marbury was offering, in his argument, his own interpretation of what the article says with regards to whether or not Congress has the power to modify the Supreme Court, and because his answer was the article did not say that, then the article in the Constitution takes precedence over laws Congress passes.”

Correction… that should read _Marshall_ and not Marbury. My apologies.

To an extent, I think you two are speaking past one another. Bob’s statement, which Brian quoted, is

the problem comes when somebody questions whether something is allowed under the Constitution or not and neither the President nor Congress is willing to act.

What I think Bob actually meant was whether legislation is allowed under the Constitution. That difference, I think renders the bulk of Brian’s objections moot, and therefore Bob’s defense moot as well.

I think it fairly obvious that Courts can, and must, rule of the constitutionality of various laws. What gets trickier, is when the courts mandate specific legislative remedies to the denial of constitutional rights. While this is at times appropriate, it takes the Courts perilously close to a legislative, rather than a judicial function.

I certainly don’t want the Courts controlling all levers of power, but at the same time I don’t want the legislative and executive branches to not be limited to what the constitution allows.

I think that Brian has a good point about the laws needing to be clear and plain and thus subject to as little interpretation as possible, and I think Congress often does a poor job of doing this. When they do so, this requires signifigant ‘legislating from the bench’ by the Courts to determine precise meaning. At the same time, Bob is correct in that even the most clear phrases are subject to some interpretation and there will always be some disagreement.

For example, most people are ok with the idea that congress shall make no law doesn’t include them not being able to make child pornography illegal, even though it could be considered a form of ’speech’.

I do think one point on my original statement should be clarified.

Dave is correct about what I was getting at, but I should not have added the President because the President can’t pass legislation, he can only sign or veto what Congress passes (although the President can suggest legislation, it’s up to Congress to actually form it).

Well, Dave’s right about us talking past each other, so let’s back up.

First: I don’t support this amendment, or the earlier gay marriage amandment. I’m not trying to advance a justification for these amendments. But neither do I think that either amendment is the product of bigotry or philitinism, as many would have us believe. Rather, I think that judicial abuse of the constiution plays a significant factor in encouraging these amendments. As Dave says, there are many more pressing problems than flag burning. So why bring this amendment up at all? Bob thinks it’s a cynical play for votes among Mencken’s “boob-oisie”. I think that’s in play here, but that there’s also a serious issue of the people, through their representatives, trying to regain a hold on the Constitution. Put succintly: I wouldn’t vote for this amendment, but I recognize that people can disagree with me without being venal or stupid. I commented on this post because I found it very irritating that neither Dave’s original post nor Bob’s comments seem to recognize the possibility that those who disagree on the merits of the amendment are anything other than “short sighted, selfish and stupid”.

Second: I understand that this a tangent, but you should know that I’m not seeking to undo the power of judicial review. I recognize that courts have a purpose and a constructuve role. What I am saying is that, in practice, courts strke down laws as “unconstitutional” despite the fact that the Constitution clearly has nothing to say on the subject. (See: gay marriage). I’m equally pissed off when the courts fails to act when a law is very clearly inviolation of the plain text of the Constitution. (See: “campaign finance reform”.) In short, my problem isn’t with the fact that judges hold the power of judicial review; my problem is with the fact that they use this power that they legitimately have to steal policy-making power that doesn’t belong to them.

Third: I think Bob reaches exactly the wrong conclusion from that link he sites. To wit, he says that “the fact there have been so many amendments tossed out” causes him to conclude “that it is important to exercise care in considering such amendments”. To me, however, the “fact there have been so many amendments tossed out” tells me that the amendment process is so burdensome as to be essentially idiot-proof. Since there is virtually no chance of any single proposed amendment passing, then why shouldn’t we consider lots of them? You’ve got ideas? Drag ‘em on up here, we’ll spend a few hours kicking ‘em around then throw ‘em in the trash. What’s the harm in that? (Especially in light of the fact that Congress fucks up almost everything it touches, I don’t really mind them “wasting” time on this sort of thing when they could be, well, fucking up something else.)

Fourth: This business about “voters’ emotions” is just plain weird. What the Hell else is Congress supposed to do? Bob says that the “list of proposed amendments includes topics that I believe would be silly to include.” That’s fair enough, and Bob and I would probably agree on the merits of many of them. But who made us the arbiters of what is “silly” and what is a pressing need? Nobody did, of course. That’s exactly why there’s an amendment process, and why amendments are so hard to pass. If a significant portion of the populace wants an amendment, then we should consider it. If two-thirds of Congress and three-fourths of the states agree that the amendment adresses a pressing need, then, who is Bob or I to decree that the amendment is “silly” and should never have been considered? And if the proposed amendment fails to garner these neccessary votes, then what was the harm in talking it out?

I’ll stick with the issue of judicial review, Brian, since I believe this is what is the root of what brought up your initial post (that judicial review is leading to courts playing “legislators” and some people don’t think that should happen).

If that is the crux of these issues, it is probably better to solve them by proposing an amendment to clarify or better define the court’s role in interpreting laws and the Constitution, or something along those lines. That way, you address the root concern (courts playing “legislators”), rather than the idea of “if the court makes a ruling we don’t agree with, pass an amendment.” The latter doesn’t stop the court from continuing the role it is already playing.

Obviously, there are issues that would have to be addressed regarding how such an amendment pertaining to the court’s role would be written and how it would impact decisions the courts, particularly the Supreme Court, have already handed down. But I think it would at least be a better direction than simply responding with an amendment to each and every court ruling, as it might (although I would admit, not necessarily) curb the tendency of courts to play “legislators.”

I don’t think that citizens that support a flag burning ammendment are selfish or stupid. I do think that they are somewhat shortsighted. However, the focus of my post was on the politicians that pushed this forward, rather than ordinary citizens.

From what I have seen, this isn’t motivated by grass roots concerns of the citizens. Certainly a majority of people think flag burning should be illegal, but very very few of them have it as a high priority concern. It is politicians that have pushed this to the forefront, rather than people. I also think that most people who think flag burning should be illegal have not spent a huge ammount of time thinking about it (nothing wrong with that, it isn’t an important issue) and if they were to think more, many would conclude that even though it is offensive, it must be permitted. The politicians pushing this issue seem to be doing it in such a way as to keep people from thinking about it deeply.

The reason for this is simple. It makes a great soundbite to say either ‘I voted to keep the flag from being burned’ or ‘My opponant voted to keep flag burning legal.’ While this may be effective, it is, in my opinion, short sighted, selfish and stupid.

As for the idea that Congress fucks up so much that wasting time with this is a benefit, rather than a negative, I have a certain amount of sympathy for that. Conversely though, encouraging irresponsible behavior by congress and accepting that ‘fucked up’ is the best we can hope for will eventually erode completely all faith in government. At some point, that will have disasterous results. I rather prefer congress always fucks up so we better pay a whole lot of attention to what they do and scream bloody murder whenever they are stupid. That makes for a lot of screaming I suppose, but they don’t seem to hear all that well.

I do think though that appealing to emotionalism will lead to poor decisions. That certainly doesn’t mean that anything people are passionate about or feel strongly isn’t worthy of being considered, but if we focus all our arguments, both for and against, into an emotional spectrum I believe we will make pretty bad decisions. I dislike it when advocates and pundits do this, and I dislike it even more when those people who are supposed to be leaders, do so.