Strengthening Constitutional Self-Government

No Left Turns

Flag Amendment

Flag Desecration Amendment failed yesterday by one vote. That’s fine by me. I like this paragraph from Jonah Goldberg:

"Since readers keep asking me whether I agree with the editors and/or the GOP on the flag-burning amendment, I figured I’d tell you: No, I don’t. NR’s editorial is well-taken and I agree with much of its analysis. I think it should be perfectly legal to ban flag burning on the state and local level and I see nothing inherently scary in the desire to amend the Constitution to bar it. Indeed, I find liberal horror at the deeply democratic amendment process but love for deeply undemocratic judicial whims to be maddening. But as a political matter, I think the effort is proof of its own futility. Any respect for the flag that requires a constitutional amendment or congressional statute is respect in name only. Also, I think the editors’ arguments are too suffused with exasperation with the role of the Supreme Court rather than the actual merits of the amendment. I share their exasperation, but I think there are better avenues to act on it."

Discussions - 22 Comments

This part was the best:

"I find liberal horror at the deeply democratic amendment process but love for deeply undemocratic judicial whims to be maddening."

The “conservative” standard response to unconstitutional Supreme Court decisions is to amend the Constitution to override them. This is feckless. In the first place, this amendment has been around for the 15 years or so since the Justices’ flag-burning decisions, yet it still isn’t passed. Meanwhile the Court has done immense damage to constitutional principles in case after case. In the second place, if we believe the flag-burning decisions wrongly interpreted the Constitution, we should not amend the Constitution. That would mean that the Court’s interpretation was correct.

If Congressional conservatives were serious about this issue, all they need to do is enact another ordinary law (with a simple majority) making flag-burning a federal crime. The Court struck down an earlier ban in 1991, but so what? Congress needs to persuade the Court that they are wrong. If the new, more conservative Roberts Court overturns the second ban – and it might, considering that Scalia wrote the earlier decisions – Congress can go back to the boards and write yet a third with some variations. Sometimes the Justices need coaxing. Moreover it is good to remind the Court and the country that Congress has a co-equal authority to interpret the Constitution and no obligation to defer to the Justices. On the contrary, as the Court has always acknowledged, the judiciary itself is obligated to defer to Congress as far as possible without violating the clear meaning of the Constitution.

It’s essential to the separation of powers that every branch is authorized to interpret the Constitution, not just the judiciary. This is why President Bush has the power to issue his clarifying statements when he signs legislation by which he interprets the law he is signing. Now if he would learn to take analogous actions regarding mistaken decisions of the judiciary, he would be close to restoring the original constitutional balance of powers and ending the imperial reign of the black robes.

If our flag stands for anything, its for the freedom to criticize our own government. What is Freedom of Speech but that? It’s our best right, and the one that makes American democracy the finest of all. If we ever restrict the right to burn flags, we will be desecrating it more than burning one ever could.

Although I don’t think anyone has a "right" to burn a flag (is that the same as the "right" to express yourself?), I do think an amendment is unnecessary and not prudent. I have been swayed on this matter by Dr. Schramm, and I think we should let the idiots burn flags on courthouse steps, we get their message loud and clear and will know not to pay any heed to them.


Daniel, our flag stands for far more than "the freedom to criticize our own government." There are also all the other freedoms. There is also our heritage as a people. There is also our status as a defender of our civilization and as the greatest fruit of that civilization. There is our way of life, in the best sense. The flag is a symbol of all of these, which is why some of our enemies burn it. Society has every right to punish such aggressive and insulting behavior. Free speech is in no way compromised by this, though a case for absolute free speech is hard to make if you really think about it.

Andrew, while it is easy to say that all kinds of things are "not prudent," it may also be "not prudent" to let extremists act so violently against this fundamental symbol of our society.
What is not punished is gradually accepted, and I think this should not be. Better if the Court had never issued its absurd ruling, but now that it has, I am very sympathetic to those who would reverse it. I do not like the idea of waiting years or decades for a SCOTUS reversal that may or may not happen.

I have always sympathized with those of an older generation that recoil in horror and want to punish those who would burn Old Glory. I, too, am repulsed by such people. But I agree with Jonah and Peter that an amendment to override the stupidity of the Court on this matter is silly. It makes us look like we have no sense of priority. It’s kinda like this: if I have a sixteen year old daughter and she comes home one night with dyed black hair, sixteen tounge rings, studs in her nose and her eyebrows, tatoos up and down her arms and stoned out of her mind, do you think my REAL problem is the fact that she is stoned or, even more trivially, her wardrobe? No. Obviously there’s something more substantial and horrifying at the root of this problem. If we have citizens who are so disturbed that they choose to burn the flag and we have a Supreme Court that thinks they have a right to do it, our real problem is not the flag burning as such. Our reaction to such matters should be one that addresses the real problem. Our reaction should be to charge ahead full throttle with educational efforts like those of the Ashbrook Center and other sensible lovers of America.

I do not really dabble with philosophy anymore, but it seems the Schramm-Ponzi argument neglects Aristotle’s argument that habits (doing stuff) molds character and the "soul" (whatever that is). If Aristotle’s argument is right then it would seem that some modes of expression degrade people more than others, and perhaps seeing some forms of expression degrade groups more than others.

If Aristotle is right then allowing people to engage in some conduct could change them in a meaningful way, which is why seemingly arbitrary lines are drawn. Someone who has not burned a flag is probably very different than someone who has burned one, even if they share the same sentiments that lead to the flag burning act because the act is so violent, it unleashes much rage. Furthermore, groups experiencing such rage, or seeing such rage, left unchecked, probably experience intense emotions that would otherwise not exist, also changing them. I think flag burning allows an extremism to enter into politics, and this should be a concern independent of the underlying emotional and political problems that lead to such an act.

People do have a moral right to critize the government, but the use of this right should be moderate, and not extreme. I can disagree with someone but this does not mean I can do whatever I want to him, I have to use moderate means to express my disagreement, I’m not allow to beat him, etc. Furthermore, flag burning seems to critize more than the government, it seems insulting to people who serve in the armed services. If one wishes to critize the government then burn the US Code or Code of Federal Regulations, flag burning critizes more than government policy, and is too extreme to really have any morally valid claim.

This really pisses me off. One vote away. Is flag burning of immeadiate importance? NO. Is stopping it good? Yes.

There is no reason not to pass this amendment. A super-majority of Americans support it, its a win-win situation. It would be a strong statement and warning to the activist judges that the people and the people’s branch (Congress) is ready and willing to snatch back their rightful power. While I am not one to back down from what is right because of prudence, it is clearly a "prudent" move. The Constitution was made to be amended. Showing the Court that their activism will not be tolerated could have great benefits to our politics for years to come.

A big thanks to those conservatives (citizens and politicians) who backed down. Join the Chaffee crowd. (McConnell, Bennett)

To follow Steve’s point; I see little or no philisophical room for "prudence," at least as practiced here (ie as a thinly veiled means for power)...

Failures in prudence here have really cost the GOP. They won’t do anything for fear of prudence.

King Saul was prudent

Machiavelli was prudent

Stephen Douglas was prudent

Bill Clinton was prudent

Just another club for the moderate/squeamish wing of the GOP to join

Steve and John (comments 7 and 8) -- Right on, gentlemen. I heartily endorse your remarks.

Steve -



Are you making an argument for why the amendment should be passed or just why flag burning is bad? What if I painted I really big picture of an American soldier (with the words "United States" written in huge letters on his uniform) in some sort of obscure and offensive sexual act with Osama bin Laden and some offensive words written underneath the disgraceful scene. Should that be made illegal as well? That’s probably MORE extreme than flag burning and would incite (in my opinion) a lot more angry/hurt feelings . . .



If you’re just arguing that flag burning is immoral, that’s one thing. To say that we should make it illegal simply because it is too "extreme" leads me to ask just where do we draw the line and who decides?

"I find liberal horror at the deeply democratic amendment process but love for deeply undemocratic judicial whims to be maddening."

I think it actually depends on WHAT exactly is at issue. However "deeply democratic" the amendment process is, I don’t think the idea was to come up with a new one every few months during election years. Regardless of one’s position on the issue, why is this something that needs to be addressed right NOW? Has there been a huge increase in flag burnings (in the United States) lately? How many have been burned? Everyone should also make a note of Goldberg’s phrase "deeply undemocratic judicial whims" for the next time he cheers a particular court decision that strikes his fancy as being profoundly correct, serious, and well-considered.

Matt- Might not an easier solution to the problem be a revision of the 14th Amendment? That is, change it in such a way so as to remove the interpretation that allowed for the destruction of federalism in the United States. I think you understand what I mean here.

Julie- I’m curious about your remarks in comment number 6. Would you apply this same philosophy to drug abuse? Before dain pops up and accuses me of "sniping" or whatever, I’m really not- I’d like to know if you are interested in getting at the root of the problem with people who abuse drugs as well as people who burn flags.

Phil: if it were my daughter with the drug problem then I’d be interested in getting to the root of the problem. As a matter of public policy, no I’m not. That’s too difficult and not the role of government--unless we have a huge number of citizens who are stoned out of their minds most of the time. But a government had better be interested in getting to the root of the problem if there are sufficient number of citizens that think burning her flag is an important thing to do. It may be that these folks are just idiots acting out and in a "phase" like a tatoo or a tounge ring can be in a teenager. But it requires some thought, it seems to me.

Steve Sparks raises an excellent and thoughtful point re: Aristotle. It is not one I haven’t considered, however. Habits do shape mores and vice versa. I agree with you on that. So my disinterest in the flag burning amendment stems not from any principled opposition to it--as I stated--but rather from my estimation of the prudence in pushing for it at this time. I also think that a larger problem (in addition to the withering patriotism of our citizens) is an out of control judiciary. The solution to both of these things is better constitutional and historical education and smarter politics--directed, when possible, by those who get this.

As for John . . . alas, you do not seem to understand "prudence" in the manner of Aristotle, which pre-supposes the upholding of virtue in the action. Therefore, Lincoln was prudent. Douglas was not. Neither were any of the others you mention--though they may have been "clever" or "calculating." You have bought into the Machiavellian definition of prudence which is nothing more than devising schemes to get what you want for whatever reason you want it. Republicans, unfortunately, have rarely demonstrated a capacity for either Aristotlian prudence or Machiavellian calculation. The first requires courage and the latter requires chutzpah. That’s what the GOP has lacked in recent years. And that’s what makes you angry. About that, you are correct.

"if it were my daughter with the drug problem then I’d be interested in getting to the root of the problem. As a matter of public policy, no I’m not. That’s too difficult and not the role of government--unless we have a huge number of citizens who are stoned out of their minds most of the time. But a government had better be interested in getting to the root of the problem if there are sufficient number of citizens that think burning her flag is an important thing to do."

Well, Julie, compared to the number of US flag burnings that happen (in the US) every year, I think that, yeah, it’s safe to say that we do have "a huge number of citizens who are stoned out of their minds most of the time." Did you intend to weaken your own position with that comment?

Really? So you think getting to the root of the flag burning "problem" is more important than getting to the root of the drug abuse problem?

Thanks Julie for setting me straight on prudence. Unfortunately we wholly disagree--not in words but in beliefs. While you certainly have chutzpah (as evidenced in your blogging) and often political cleverness, I generally doubt your Lincolnian prudence. I agree that Lincoln was good, David was good, Locke was better than Machiavelli, and Bush is better than Clinton; so whatever prudence they practiced may indeed be a virtue (particularly David’s and Lincoln’s). However, I judge that your "prudence" is more about political power and picking your battles. Defining it as I believe you/Andrew’s argument does, I offered up a few cynical people who practiced what I believe you are practicing--"prudence."

You espouse the good guys, but act more along the tricky lines of the bad. David (when acting wisely) never backed down on account of prudence. Perfect idealism and perfect pragmatism are one in the same, and perfect prudence is perfect faith and action for justice. So prudence is not truly a stand alone virtue, but we may call a man who unflinchingly follows justice prudent. However, I expect it is a somewhat unecessary term. If "prudence" ever changes ones action, then it is not truly prudence. Those who in the name of "prudence" have decided not to support the flag burning amendment when they--prudence aside--would have supported it, are guilty of Machiavellian prudence at best.

John: What you describe is simple Platonism. You allow the perfect to be the enemy of the good. You seek heaven on earth. You will ever be frustrated and achieve very little goodness--except in your own mind--with that outlook. It is not prudence; it is impudence. It is the beginning of seriousness in politics--but it is immature. Why does Aristotle ultimately reject Plato? That is what you need to ask yourself. As for your general criticism of me and my blogging . . . it is difficult to answer because it offers no evidence or specifics. I can only tell you that from the bottom of my heart I have no interest in power for powers sake--for myself or for my party. But if you believe, as I suspect you do, that the our party is closer to the truth than the other one--why would you argue for doing things that hurt its chances of prevailing in the end. I suspect the difference between us is really just one of patience.

Craig: Did I intend to weaken my position because there are more people who are stoned than there are burning the flag? Uh . . . no. The numbers of people burning flags and/or getting stoned are both suffiently low justify my lack of deep concern about either thing as such. And as you may recall, I did not support (though I would not have been the one to vote against) the amendment. Although--as I have stated--the problems at the root of both drug abuse and flag burning are serious --the former are serious for the the health of the nation and the latter are only serious to the individual, friends, and families of those involved (unless, as I said, we’re talking serious numbers). I fail to see an argument right now that should cause me to feel compelled to address the root causes of drug abuse. It is sufficient, as a matter of public policy, to deal with it as a crime (though we could and probably would debate the specifics of how we do that). The "do-something" disease that leads people to put so much trust in government to address problems of a highly personal nature usually makes problems worse than they are. I’m not even sure government ought to address the problems at the root of the lack of patriotism that causes flag-burning. I think government’s involvement in the educational system is probably what caused it in the first place.

I was going to give it my humble best as the discussion turned towards Aristotle and prudence, but as I scrolled down I saw Mrs. Ponzi had it under control. Well said!

Concerning Lincoln, prudence, and abolition: the Garrisons and Browns wanted to stand up for what was right, no compromises. To hell with the Southern slaverholders. No Union with Slavery! Maybe the abolitionists would be able to sleep better with themselves at night, but Lincoln was more concerned with the millions of slaves who would be left in bondage than the egos of the self-righteous abolitionists.

I bring that up because it seems that more and more Republicans are inclined to shoot for all-or-nothing measures these days. Don’t worry, John and Co., I do agree with you on the issues, but not on the means. For instance, Mississippi and South Dakota [?] have both passed laws banning pretty much any form of abortion. While you all might praise their bravery, I cringe at the possible prospect of seeing the principled and learned Roberts court have to rule against these laws because they’re far too much far too soon. To combine Mrs. Ponzi and Mr. Lincoln, patience + moral suassion = success. And I hope this post is coherent- I’m very into the thread but have been working OT all week and my brain is behaving oddly.

Julie, my criticisms of your blogging is because I perceive that you tread the power line no matter what...it is simply my opinion and may well be wrong.

I think David said it correctly early on. Why is Aristotle the final authority? Besides I think that you rightly said that Aristotle presupposes virtue. Is flag burning a virtue? No, so how do you claim prudence while defending it?

Lastly, I’ll let you people explain to God that you were prudently waiting to do the right thing. Life, religion, and right is in the moment...is it not??? Are we guaranteed tomorrow?

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