As a foreigner, I have a lot of questions of a practical nature regarding this. I imagine some protesters would try to demonstrate the silliness of the law by seeing how close to the edge they could go. Would a forty-nine star flag be protected? What if the red/white stripes were reversed to white/red? Exactly what CMYK values would you need the blue background to have without being liable to prosecution for burning it?
What if you pissed on it? Would legislation cover any desecration? It seemed odd to me the way many people seemed to so shabbily treat their flags during the most heightened hysteria post-11 Sept. Would this be regarded as desecration? Should it? What if it were used as a prop in a porn movie as I’m sure it has been. Would a CGI representation of a burning be an offense?
Also, would similar protection be given to state flags? Those of the armed services? Foreign countries?
I understand the major issue here is the moral one of whether such a law should exist at all but I’m astounded at the complete lack of interest here, so far, in the mechanics of the amendment and resulting legislation. This in itself is interesting as I’ve always thought of Americans as being people who get awfully wound up by details such as the exact wording and effect of the constitution.
As mentioned, it has always failed in the Senate, and it may do so again this year, but with the new crop of Senators, its fate is uncertain.
As to the states, it will overwhelmingly pass there if Congress passes it. I believe most states have already passed resolutions calling on Congress to enact this amendment, so its passage in the states is pretty much a given.
Ah, for the days when “freedom of speech” meant something . . .
By what criteria does an income tax reduce the freedom of the people? Also it seems to me that you are making an unwarranted assumption by counterposing governmental power with individual freedom. The 11th Amendment, for instance, restricts both ( or it would if it were enforced depending on your view ). The judicial authority of the federal government is limited but now people aren’t free to sue a state they don’t reside in. I think it is important to remember that without government power the only thing we would be free to do is live in hunter/gatherer societies. You can’t have anything more complex without a government. Governments don’t just restrict freedom, they create it.
**Gest **,
We are discussing a constitutional amendment not a specific law. If passed and ratified then Congress would be authorized to outlaw desecration of the flag, which right now they are prevented from doing by the current constitutional interpretation by the courts. Once the amendment passes then Congress can make a law which would deal with the practicalities you are asking about. I haven’t seen the latest proposal but the earlier ones dealt strictly with the US flag. If nothing has changed then outlawing the desecration of flags would still remain beyond the power of any federal, state, or local government.
IOW, we aren’t much concerned about specifics because they haven’t come up yet. Only when a specific law is proposed are they pertinent.
The Constitution was designed to strictly proscribe the authority of the federal gov’t. THe Bill of Rights, later, was added to explicitly enumerate the rights of the people and the states.
The Constitution was designed to strictly proscribe the authority of the federal gov’t. Yes, we would have anarchy w/o some gov’t, but the framers wisely recognized that a gov’t should be limmited to that power explicitly given up to it by the people.
The Bill of Rights, later, was added to explicitly enumerate the more important rights of the people and the states. With very few exceptions, the later amendments stuck to this idea. An amendment specifically designed to limmit personal freedom (such as the flag burning amendment) would be so counter to the spirit of the BoR and the further amendments that it would tarnish this great document.
The 18th amendment* isn’t anywhere near the intrusion on liberty as the flag burning amendment would be, but it does stand out as an authority given the to gov’t rather than a right of the people. Some of the further amendments are more procedural (like term limmits on the presidency) and are more or less nuetral in that respect.
Besides being simply wrong, I think the flaf buring amendment would set a very bad precident for future liberty restricting amendments. Laws can be fairly easily changed. The constitution is very difficult to change (and rightly so).
*and in case you are unaware, the feds tried to enact an income tax law in the late 19th century, but it was struck down as uncostitutional by the SCotUS. Hence the amendment later.
I don’t see how it could really be enforcable if it was passed. SAs Gest points out, defining what constitutes a “flag” is going to be difficult, and however the definition is worded, protesters can always find a way to fall just short of the definition.
Is a flag with 49 stars protected? How about paper plates with flags on them? How about a piece of cardboard with a flaf crudely drawn in magic marker?
Also, isn’t burning the officially sanctioned way to dispose of old or damaged flags? How do we distinguish between disposing of a flag and burning it as speech? And isn’t that the really scary part. If we say that flag burning is only a crime when does a protest, then aren’t we in effect punsihing the thought and not the action?
What I make a flag from a non-flammable substance, then squirt lighter fluid on it and spark it up. The flag would appear to “burn” for a while, but then the flames would go out and the flag would be undamaged?
I’m sure I could think of lots of other ways to skirt the prohibition, and if this amendment is allowed to taint the Constitution I will make it my mission to do so.
Oh, and I also liked Mr. Blue Sky’s point about burning the Constitution. There’s lots of other stuff we could burn as well. They can’t pass amendments for all of them.
Man, I’m glad this NON-ISSUE keeps coming up in the legislature. Sheesh. Let me spell it out for those who are still on the fence:
I fully understand the reasons many have for treating the US flag with respect. I understand the symbolism involved, the history, and so forth. However, it is ridiculous to claim that people should be subject to prosecution for “desecrating” the flag – this would be a far greater assault on American ideals than burning the flag.
Period. I can’t honestly see us going any other way. Do people realize how ridiculous it would be to have an amendment – IN THE U.S. CONSTITUTION, UNDER “WE THE PEOPLE” – saying, “Your rights do not include the right to burn the flag. This is an exception to the first amendment.”. Obviously, this ain’t happening – so why is this even an issue?
Indeed, and to take it one step farther, what constitutes “desecration”? Obviously burning the flag would be desecration (well, OK, as you point out maybe it’s not so obvious), and I suppose pissing on the flag would be, but…
What if I “fart in its general direction”?
What if I shoot it the bird?
What if I stick my tongue out at it?
What if I dance around it singing “Nanny-nanny-boo-boo”?
What if I wipe off the kitchen sink with it?
What if I wipe the sweat from my underarms with it?
What if I wear it as a headband when jogging?
What if I see my wearing an American flag headband as honoring the flag while you see it as desecrating it?
What if I diaper my baby with it?
What if I print up toilet paper with little flags on each square?
What if…
Believe me, I can keep going with this all day long.
From what I’ve read, 49 states have passed resolutions calling for a constitutional amendment to ban flag burning, and 47 states still have anti-flag burning laws on the books, which would presumably have the force of law once the Constitutional amendment passes.
It is hard to find an excercise in blatant political cynicism more appalling that the “flag desecration” crapola. Note the weasel room: rather than try to define the undefinable (as noted above, what constitutes a “flag”, what precise modes of behavior are to be forbidden, etc.) The Amendment will simply allow such, but without actually doing anything.
Every time this sorry sack of shit has been trotted out, it has failed over practicality: its impossible to define, and therefore impossible to enforce.
They know this already. It is nothing more than a ploy to present A Certain Party, who will remain unnamed, as being the Party of Patriotism, of the real Americans, the kind of people who hear Springsteen’s Born in the USA and hear nothing more complicated than another maudlin anthem.
Of course its frothy crappucino, and they know it. It is impossible to desecrate the flag because the flag is not a sacred object. You can desecrate an alter, you can desecrate a Torah, you cannot desecrate the secular symbol of a political entity.
Can anybody who supports this amendment give a stronger argument than “it hurts my feelings, therefore people who do it must be arrested and thrown in jail?”
I don’t know what is worse: those who actually believe that the flag should not be “desecrated” and needs to be protected by an amendment, or those who know this amendment is a sham but are too chicken to stand up and oppose it.
Actually, the they is us. We elect them, and the Constitution is the ultimate embodiement of the will of the people. I agree with everyone here though, terrible idea to pass amendments like this. I don’t think it will go through, for many of the reasons allready stated.
You know what? Maybe we should just let them have their goddamn amendment? The next time they come storming up with their next flag burning amendment, maybe we should just step aside and let them have it.
Fine. You’ve got your friggin’ amendment, now what are you going to do with it? Throw Guin and me and hundreds of thousands of otherwise law abiding citizens in jail for burning a cheap 3"X5" American flag made in China, or doing any of a million other things just to offend you that we would never have considered doing prior to the amendment?
When the Constitution was created the United States had a weak government under the Articles of Confederation and Perpetual Union. Lots of folks ( you know, the kind with money and power ) thought we needed something better and that’s why the constitutional convention was called. Now most of the men that wrote it did favor limited government, if not quite as limited as the one they had. But not all. Alexander Hamilton’s plan called for a national legislature “with power to pass all laws whatsoever” as well as declaring “All laws of the particular States contrary to the Constitution or laws of the United States to be utterly void”. Hamilton was definitely in the minority though. His plan wasn’t even debated. Nonetheless he took what he could get from the convention and bided his time.
The Constitution was written and submitted to the states for ratification. There was plenty of resistance on many different points but the main bone of contention seems to have been the lack of a bill of rights. Originally the proponents of the Constitution declared that a listing of rights to limit the power of the new government was unnecessary. But when they could achieve ratification no other way they compromised and promised to enact some constitutional amendments in the first Congress under the Constitution. Opponents of the Constitution used the lack of a bill of rights to try to call another convention to write one and at the same time rewrite the Constitution itself. The proponents of the Constitution weren’t about to let that happen.
So that’s why Madison, despite originally opposing a bill of rights, was the person to write the first draft for one. And that’s why he and the other proponents of the new government supported it and the very people who called for a listing of rights opposed the Bill of Rights. It was passed by Congress in 1789. The following year Hamilton made his move. Despite all the claims that the government didn’t need any more limitations because it only had the powers specifically delegated and despite passing a constitutional amendent ( which became the 10th Amendment ) stating just that, the Federalists adopted a loose interpretation and insisted that the new government was authorized to create a national bank. Some in the new government, including Madison, rejected this reasoning and broke from the Federalists to form the first national Republican Party.
OK, that’s it. Now what did we learn?
The Constitution was written to strengthen the central government.
The Bill of Rights was written not to further limit the new government but rather to prevent just that from happening.
It isn’t correct to say that “The Framers believed in limited government” because not all of them did. I encourage people to be very careful with generalizations about the beliefs of the Framers because there wasn’t a whole lot of consensus at the constitutional convention. A lot of the clauses in the document aren’t examples of any one principle but rather a compromise between 2 or more principles.
The 19th century isn’t my area of expertise but I was aware that an income tax had been ruled unconstitutional. In fact, court decisions have often been a spur to passing an amendment. The 11th was provoked by Chisolm v Georgia ( 1793 ), the 14th by Dred Scott ( 1857 ). The 16th by Pollack v Farmers’ Loan and Trust Co. ( 1895 ), and the 26th by Oregon v Mitchell ( 1970 ). In addition a child labor amendment was passed by Congress in response to a court decision but was never ratified by enough states. School prayer, busing, and abortion amendments have also been pushed but not passed in response to actions of the judiciary. If the flag burning amendment passes it can be added to the list.
Lastly John Mace, I am still wondering why and how you think allowing an income tax restricts a freedom of the people. To me it seems that the presidential term limit clearly restricts the freedom of the people. We are not allowed to elect who we want to elect so we are less free. How are we less free by being asked to pay income taxes?
I thought I explained my point of view above, but perhaps it wasn’t clear. Read thru the list of amendments and what is the common theme of the majority of those amendments? Clearly stating rights that the people possess and that the gov’t cannot infringe upon. Granted, the later amendments tend to be a bit more procedural in terms of how the gov’t is to work. Those I would consider more or less neutral.
The term limits amemedment could be considered a limit on freedom, and this was explored extensively in a recent thread in GD. I also think that a strong case can be made that that this is no more restrictive than the req’t in the constution itself that the president be at least 35 yrs old, and that its’ really just a procedural adjustment. I could easily have seen this written into the original constitution.
As for the income tax amendment, it’s a matter of perspective. We’re all so used to having an income tax that it’s hard to conceive how fiercely this was fought against in the 19th century. Whenever you garner someone wages, you are restricting what that person can do with their property. I see this as more than just a “procedural” adjusttment to the constitution and a further limitation on the rights of citizens (ie, to dispose of his or her property as he or she sees fit).
And let me once again emphasize that on a reltative scale, I’d say that the flag buring amendment is much more of a restriction on freedom than the income tax amendment is. In fact, the former would appear to contradict the 1st amendment. I can’t think of any similar clause or article or amendment in the entier constitution-- something to specifically limits a rather trivial (and virtually impossible to define in any legal sense) action by the citizens of the country.
It would pass the Congress because it is so much easier to wrap oneself up in the flag and ignore the real problems facing the nation. It would definitely pass some states, whether we get 38 is questionable. It would indeed be a restriction on freedom of speech, but Americans are notriously hypocritical when it comes to this freedom, just ask the Dixie Chicks.