America has once again narrowly avoided a serious embarrassment; the vote was close, but the flag-burning amendment has again been defeated in the Senate. The Flag-Burning Amendment has become an annual American tradition. Each year just before the Fourth of July it's reintroduced so that congresscreatures can go home to their constituents and brag about how they've once again voted to protect the flag, mom, and apple pie from the desecration of those godless communist hippies. Fortunately for proponents of the Amendment, they've never quite mustered enough votes to actually pass it. If they did, they'd lose one of their favorite bloody shirts to wave in their various opponents' faces.
It should be pointed out that it failed this time by the narrowest of narrow margins: 66 votes for to 34 against. It's already passed the House, and would almost certainly get through the 3/4 of state legislatures required to be added to the Constitution (since, gladhandling though our national representatives are, state and local representatives are even more tied to their localities, and are thus more susceptible to quick and easy patriotic drivel like this). Particular brickbats are due to Senator Mark Dayton of Minnesota, who is retiring from politics this year and thus voted for this amendment without any compelling reason, and Dianne Feinstein of California, who voted for the amendment despite representing a state that will never, ever replace her and probably doesn't even support the thing. Kudos to Senator Bennet, Republican from Utah, for bucking his party and voting against the amendment, though.
This whole nonsense goes back to the Supreme Court case of Texas v. Johnson, in which a man was prosecuted under a Texas statute that banned flag-burning. The court ruled, 5-4, that content-based restrictions on free expression, including restrictions on what you may do with a flag, are unconstitutional. The dissenters were Chief Justice Rhenquist, Byron White, Sandra Day O'Connor, and John Paul Stevens (somewhat surprisingly). Rhenquist, White, and O'Connor were principally interested in the history and prevalence of flag desecration laws, so if we've been doing it all along, why not keep doing it now? Stevens has an odd separate dissent where he claims that he's opposed to all content-based restrictions on expression, except in this case. He then gets very misty-eyed about the flag and says that Congress can never ban speech based on content unless it's to protect Old Glory.
You'll note, in this, that Justice Scalia was among the majority who ruled that flag desecration laws were unconstitutional. My general rule of Supreme Court jurisprudence is that when Justice Scalia says you've gone too far to the right, you've gone too far to the right. I believe subsequent cases have been more lop-sided against flag desecration laws, on the grounds that it's already a decided matter.
The anti-Judiciary twist is a new one to this round of the Flag Burning Amendment debates:
In the debate, proponents sought to make a case of high principle: recapturing for Congress a power taken away by the Supreme Court in a 1989 decision.
That decision, in a Texas case, said flag burning was an expression of free speech and invalidated the flag desecration laws in 48 states.
Senator Hatch said the amendment would "restore the constitution to what it was before unelected jurists changed it five to four." He went on to say, "Five lawyers decided 48 states were wrong."
He conveniently glosses over exactly which five lawyers decided the 48 states were wrong. Also, the fact that the five lawyers happened to be a majority of the special officials appointed by the Constitution with the explicit task of deciding when the states/congress are, in fact, wrong and acting beyond the scope of their powers.
This whole arglebargle is actually somewhat nostalgic for me. The flag burning amendment was actually the first big political issue that I ever cared about. It makes me pine for the happy days when the biggest threat to the country was a lot of morons deciding that 250 years of democracy couldn't withstand certain forms of symbolic protest.
I'll wrap up by pointing to one of the better practical arguments against the flag burning amendment, made by John Scalzi during last year's debate. Scalzi, incidentally, wrote the Hugo-nominated Old Man's War, which I just finished and which is a delightful read that I will review here just as soon as I collect my thoughts on it.
