Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.
– 1st Amendment of the US Constitution
As I prefer to argue matters from first principles rather than on the basis of falsely self-legitimising artefacts of state such as legal documents, I rarely discuss, much less quote, the much vaunted US Constitution. Yet I think any reasonable reading of those lines above would say that the objective at hand when it was written was to safeguard the freedom to express views, particularly political views, in any manner, so long as it was done peaceably.
So I can only assume that Democratic Party Presidential wannabe Wes Clark1 takes the view that speech and press mean literally spoken word and mechanical press, and thus the Amendment does not actually refer to expression, and thus does not cover anything not literally speech or printed media produced with a honking great press, such as the Internet or anything else not literally speech or press. How else does one explain his support for prosecuting people who engage in political expression by desecrating US flags?
Of course the argument often used is that burning a US flag pisses off some people in the USA so much that it is likely to cause violence. Funny how the same people who make that argument usually also oppose the same argument when it is applied to so-called ‘hate speech’… but being a left winger, I guess Wes Clark is at least being consistent in wanting political control over unpopular forms of expression unlike the more inconsistent conservative ‘hand on heart’ supporters who want to turn the US flag into an inviolate icon whilst insisting on the right to call a fag a fag and a spick a spick.
1 = British readers will be fascinated to know this is the same clown who wanted to start a shooting war between Russia and NATO in June, 1998. This is the guy who will save us from ‘that madman and threat to world peace, George Bush’. Aiyiyi… 
I would certainly consider desecrating a flag as a political statement, but not as political speech. I’m pretty certain those who bomb embassies are making political statements too. I know a flag is only a symbol but so are embassies in that context.
Well said Bernie!
I believe that it is constitutional in the United States to burn a flag as a form of expression, just not appropriate to claim some special protection against other laws. In essence, an act that is otherwise illegal can not be made legal by political content, nor can an act otherwise legal be made illegal because of political content. I give the pillow case standard – if you can legally burn a pillowcase, you can legally burn a flag.
Bernie, within the context of the 1st Amendment (which is why I really do dislike arid arguments based on the frigging constitution of this or that nation-state), it is clear that it is peaceable expression being protected, so remarks about the bombing embassies being a political expression are really not germane to anything… that said, I do see your point and pretty much agree with the generality.
In any case, the First Amendment does not talk about a constitutionally protected right to bomb things… that would be the Second Amendment (yes, I am joking now… sort of)
Perry I have to agree that this Wesley Clark character, and the proposed ammendment, should be criticised for their silliness. I’m just not sure that the 1st Ammendment is the thing to use. I can see how flag desecration, of any nation, can be offensive and making it illegal would violate a freedom and would be the wrong thing to do, I’m just not entirely convinced it violates the 1st Ammendment.
Viewed objectively (which is a far far far better standard for discussion that ‘viewed constitutionally’) it must indeed be true that flag desecration is a legitimate form of political expression. It is only a coloured bit of cloth after all, so it is hardly the same as assaulting someone to, say, tar and feather them to express political displeasure.
However unless you take the view that desecrating a flag is not peaceable expression… and if it is not, then presumably any unpopular, offensive or highly controversial acts (such as holding up a placard saying ‘MURDERERS’ outside an abortion clinic or, say, Congress) which are likely to inflame passions must also fail the same ‘peaceable’ test… otherwise it is hard to see how it is not protected by the First Amendment.
The proposed flag-burning legislation is an embarassing bit of silliness, but I suspect the FF’s would’ve seen it as a property issue. Practical men, under those powdered wigs. You bought it, you can burn it.
The Supremes recently upheld laws forbidding cross-burning when used as an agent of intimidation, but allowed that it might be considered protected speech if the intent wasn’t proved. It was, however, one of those 5-4 things.
Personally, I think people get too overwrought about the significance of burning stuff.
I am not a fan of Gen. Clark, but I do agree that burning the flag is treacherous. However, I would not support an Amendment making such activity illegal.
That being said … er, written … and without putting too fine a point on it, the entire argument of whether or not such an Amendment would violate the Constitution is a non sequitur — Amendments change the Constitution, become part of it, and therefore cannot be “unconstitutional.” An Amendment banning the burning of the flag would simply be a carved-out exception to the 1st Amend. as ratified by the States. It’s not the same thing as a statute or Executive Order which could be reviewed by the Supreme Court as the ultimate arbiter of what the law is. An Amendment to the Constitution is reviewable in this manner.
that should be: “An Amendment to the Constitution is not reviewable in this manner.”
D. Citizen is quite right that by definition a constitutional amendment cannot be unconstitutional… which is why I care so little for constitutions and snicker snidely when people hold them up as sacred texts. Rights do not come from constitutions, they are derived from morality, and morality springs from reason… state just make laws for that is all a constitution is. However what the state maketh it may unmaketh.
I’m surprised that noone has made the basic point, which is that, in his support of prosecuting people for burning the flag, General Clark is quite simply pandering to a particular voter bloc. He knows full-well that any law banning flag-burning in-and-of itself will never pass Constitutional muster, as indeed it should not. What he is doing is setting himself up with the ‘right’ opinion to attract a certain voter bloc, even though he knows for certain in his own mind that his opinion will never become reality.
Amusing side point, which UK readers may not be aware of. The US Flag Code describes how the US flag should be displayed, used and honoured – it has the force of sentiment if not the force of law. It’s very distinct on one point – the only acceptable way to dispose of a flag which is worn, damaged, or otherwise unsuitable for further use – is to burn it. Drafting that law that General Clark wants is going to have to be awfully carefully done to get around that point.
llater,
llamas
Constitution or no, the earlier writers fail to realize the basic principle of negative rights. That is that “your right to swing your fist ends where my nose begins.”
I myself find the act of burning the American Flag abominable. But only insomuch as that all that it stands for is embodied in the right to do so. Were an anti-dessecration amendment to pass, I would be among the first on the Capital steps with flags, accelerant, and matches.
In the end, however, this is all just wrap-yourself-in-the-flag politicing. Come the first Wednesday after the first Monday next November, it will all be forgotten.
It is very important to remember that the Bill of Rights (the first ten ammendments to the Constitution) does NOT grant the rights to the People. It recognizes rights that all people are born with, often called “God given rights,” and places limits on the government in regards to these rights.
The ninth ammendment recognizes this fact, “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”
Actually the whole “it’s a free speech thing” is utter nonsense.
Anyone who has to resort to burning the American flag to make a point has already lost that debate. Besides there is already on the books a number of laws that govern how the American flag is treated. Primarily on how the flag is disposed, i.e. worn out flags cannot be summarily tossed into the garbage, they must be burned.
Frankly I’d be very supportive of a constitutional amendment to require jail time for anyone burning the American flag. No offense to those that disagree (well maybe some offense, but not much) I consider it a insult to every person who died defending this country.
And if someone were to add a provision for a public spanking, well that’s a bonus.
ed
ed; Actually the whole “it’s a free speech thing” is utter nonsense
And your argument for this statement is…???
Rights do not come from constitutions, they are derived from morality, and morality springs from reason… state just make laws for that is all a constitution is. However what the state maketh it may unmaketh.
To a point, I suppose, but the Constitution of the US has proved to be an impediment to the exercise of state power, and so I regard written constitutions as a very important part of the libertarian toolkit. If nothing else, they make explicit the basic terms of the government’s portfolio.
I note that on a number of issues, including free speech and gun rights, laws that have passed in England, which lacks a written constitution, would likely not have survived constitutional scrutiny in the US. A surrender of sovereignty, such as that now being plotted under England’s unwritten constitution, would be a complete non-starter in the US, in no small part because of the US Constitution.
The only thing worse than a written constitution is an unwritten one, I suppose, because an unwritten constitution may be rewritten at whim. Just ask Tony Blair.
Ed wrote:
‘Frankly I’d be very supportive of a constitutional amendment to require jail time for anyone burning the American flag. No offense to those that disagree (well maybe some offense, but not much) I consider it a insult to every person who died defending this country.’
What other insults do you propose to criminalize?
Regarding the Flag Code, which prescribes burning as the only method to dispose of a worn-out flag – while it is part of the US Code, it has no force of law. That is left to the states. Since the flag-burning decisions of the USSC in the late 1980’s, any state law prohibiting flag-burning, or any other mistreatment which you might find insulting, is void.
llater,
llamas
R. C. Dean wrote:
“To a point, I suppose, but the Constitution of the US has proved to be an impediment to the exercise of state power, and so I regard written constitutions as a very important part of the libertarian toolkit. If nothing else, they make explicit the basic terms of the government’s portfolio.”
As such, if well taught, it would also be very apparent to all when it was being violated. The US doesn’t seem to teach much about the it’s own constitution any more.
Be careful with the Ninth Amendment, Rossz: while it might express a nice-sounding philosophical premise, if taken to its logical conclusion it can also be the basis for judicial tyranny. There is a danger in a document of positive law talking about unenumerated rights that are nonetheless enforceable: who gets to decide what those rights are? If the Ninth Amendment actually means anything, it potentially means everything.
“As such, if well taught, it would also be very apparent to all when it was being violated.”
Yes and no, Bernie: some of the language of the US Constitution is deliberately broad or vague. Such was the nature of compromise at the Constitutional Convention, and in the amendatory process since. I’m the last person to start spouting nonsense about the “living Constitution,” but it’s hardly a new practice for legislators to leave things loosely-worded in order to pass the buck to the courts, and that does mean that there can be legitimate disagreement as to interpretation. Just as one relatively straightforward example, what significance do you make of the difference in the vesting clauses of Article I on the one hand and Articles II and III on the other?
Perry: states just make laws for that is all a constitution is. However what the state maketh it may unmaketh.
which is why it is important to win the arguments about the sort of society we want to live in and not just trust to a constitution to preserve your freedom. That said, it can be useful to have a good constitution but you need judges in place to uphold it against the politicians who would pass unconstitutional laws and you need politicians to appoint the judges …
At the end of the day a constitution is only good as a measure to slow down the advance of the state.
If politicans are not convinced by the arguments that upholding the constitution is more important that whatever it is they want to do, they will pack the judiciary.
There is a danger in a document of positive law talking about unenumerated rights that are nonetheless enforceable: who gets to decide what those rights are?
If the unenumerated rights are positive rights/entitlements, then you have a point. I have always understood the 9th Amendment to be a limit on government power, not a grant of entitlements. The rights enumerated in the Bill of Rights (free speech, keep and bear arms, etc.) are all phrased as rights that the government may not infringe, that is, as negative rights. I do not see why the reference in the 9th Amendment should be read any differently. It is simply a warning to sharp government lawyers that the list of rights that government may not infringe is not exhaustive.
The default rule, in short, was intended to be liberty, and it was supposed to be up to government to show that it had an enumerated power. Sadly, these presumptions have been reversed.
If we are going to treat the enumerated rights as entitlements, then I demand my government-supplied M-16, plenty of ammo, and sidearm. Not to mention my printing press.
R.C. Dean — Dave J. does not seem to have the first idea of what legal positivism is. His attempt to ascribe the Bill of Rights to a positivist theory is ludicrous.
Natural rights is the moral theory behind the Bill of Rights, Perry; though there is some natural law theory involved as well.
Jefferson once said that “The natural progress of things is for government to gain ground and for liberty to yield.” Kind of an early Public Choice analysis.
He felt that without some kind of institutional constraints the majoritarian instinct in a democracy would naturally lead to the hand of the state reaching into every corner of civil society.
The Constitution has served our country well through much peril, and is the Supreme Court who will eventially use it to expectorate socialism from our midst.
So snicker snidely at the Constitution if you will, Perry. Someday you may wish to avail yourself of its protections.
So snicker snidely at the Constitution if you will, Perry. Someday you may wish to avail yourself of its protections.
I think constitutions have some utilitarian value but that does not mean they have much philosphical value. To win the culture war you need more than constitutions… those are just useful to win court battles.
Flag burning is similar to calling people nigger, or fag or vermin. It is a deliberate and extremely sharp and rude insult.
They might be all protected by free speech rules but they should not be socially acceptable. We don’t need a constitutional ammendment, but I don’t know why people who are extremely opposed to the last three insults, are much more tolerant of the first.
“To win the culture war you need more than constitutions… those are just useful to win court battles.”
In America, court battles are *all that matters*, Perry. We will never convince the masses that they have no claim to anyone’s property but their own, or that they must stop telling each other what to do.
The author of our Constitution, James Madison, said that the courts were to be the “bulwark of our liberties” against the inevitable majoritarian onslaught from the two political branches of the federal government.
The system isn’t perfect, not by a long shot, but its the best thing on offer these days — and the Court’s decisions are steadily moving toward liberty. (Gay marriage and medical marijuana are next).
Did I ascribe a positivist basis to the Bill of Rights, Abby? Most certainly not, as that would indeed be ludicrous. Saying something is positive law does not mean it was premised on positivist legal theory: it just means it’s not case law, i.e., a written constitution, a statute, a treaty or an administrative rule are all examples of positive law. The US Constitution is positive law; conversely, the British Constitution, ethereal intangible thing that it is, is not, although some of its components are (Magna Carta, the English Bill of Rights, the Act of Settlement, etc.).
My warning about the Ninth Amendment is a practical one: that its natural-rights language is nevertheless an open-ended potential invitation to judges of all stripes to do with it whatever they will, theoretical underpinnings and all other intent be damned. As someone who interacts with the Florida Supreme Court on a regular basis, I have to say I hardly think that it’s unreasonable to worry about things like that. Your optimism about the resuscitation of Lochner notwithstanding, courts are still organs of the state, and still populated by real people, most of whom are not libertarians and many of whom are far from brilliant or even terribly thoughtful.
“…its natural-rights language is nevertheless an open-ended potential invitation to judges of all stripes to do with it whatever they will…”
The only thing that judges could do with it is begin to recognize all the negative rights we are born with then denied. The could not creat positive rights because of the way the Ninth Amendment is written. I’ll take whatever liberties they care to give me.
As for the last, I would take a closer look at Justice Janice Rogers Brown, who was just appointed to the DC Circuit. She’s a black, libertarian woman who will be poised for nomination to the supreme Court — perhaps as a compromise candidate.
RC Dean writes: “A surrender of sovereignty, such as that now being plotted under England’s unwritten constitution, would be a complete non-starter in the US, in no small part because of the US Constitution.”
I’m sure that “would be a complete non-starter” is correct, but it’s not simply because the US has a written constitution, but the veneration of that constitution in America, and the instutional constraints built into it. Ireland has a written constitution, but adopting the EU one (even though a popular vote will be required) is far from a non-starter there.
Ah, an opportunity to dust off a self-quote from some article I wrote long before Samizdata:
“A flag you can’t burn isn’t worth fighting for.”
Abby: In America, court battles are *all that matters*
I could not disagree more. If the only thing you have left to defend liberty is the courts, you might as well kiss it all goodbye. I care little what the majority thinks, just so long as a sizable minority will simply not countenance the abridgement of essential liberties. Liberty can survive under no system, not even the US system, unless there is an underpinning culture of liberty to defend it. All the US system does (and this is where it score heavily) is slow down the speed of erosion in some areas (compared to, say, the astonishing speed with which liberty has eroded in Britain), thus allowing opposition to form to the anti-liberty forces. Granted, this is not a minor point, but still shows that without a widely shared culture from which the opposition to the state’s encroachment must spring, you are just delaying the inevitable.
Ultimately any constitution is just so much toilet paper unless there is a lasting cultural core of values shared by enough people which insist on liberty. Without that even the most perfect constitution in the world is just so much empty pious blather.
Obviously burning a flag as a public statement is an insult – that is the whole point. The question is whether insults should be criminal offences, and also whether the insult is justified. Generally most libertarians do not view insults as criminal aggression. And, like most nations, the US government and a large number of Americans have at various times behaved in a manner that many people would view as despicable, and therefore the insult of flag-burning would appear to be justified if directed at these actions. Indeed, most flag-burning is protest directed at state actions viewed as immoral by the flag-burner.
Perry wrote – “Rights do not come from constitutions, they are derived from morality, and morality springs from reason”
As pointed out above, that is the basis upon which the US constitution was written – as a statement of already-existing inherent rights, and as a utilitarian device to protect those rights from democratic tyranny. It is simply a 2nd line of defence, beyond that provided by Congress – and a 2nd line of defence is better than just 1. As for courts, they control the police power, so winning court battles is rather important.
Purely pragmatically, a constitution is more useful than no constitution. Winning the culture war is easier with a libertarian constitution than without one.
However, the fatal flaws with the US constitution are the political (rather than popular) appointment of the judiciary, and the ability to ratify amendments with only a 2/3 majority. I would rather have amendments only on a 100% vote in both the house and sentate.
I pretty much agree with all of that Cobden, but the trouble is that so many people simply wave the US Constitution as if that was the be all and end all… it is not… and what Wesley Clark is talking about just underlines that. Once expressing your political views by burning a flag becomes unconstitutional expression, the Constitution becomes an impediment to liberty rather than a defence of it.
And regarding an earlier comments saying burning the US flag was ‘treacherous’… well no, it is just burning a symbol.
And to the chap who said “I consider it a insult to every person who died defending this country”… I would reply, so what? Why should insulting you or anyone else be a crime? What if to the person burning the flag, it represented opposition to the genocidal actions of the US Army in the various Indian Wars? Or perhaps it means their rejection of the US state using the RICO statutes or maybe it indicates their resistance to state confiscation of private property under ’eminent domain’ or ‘civil forfeiture’? Why should the fact YOU think it is an insult to the people who died defending the country be the only valid interpretation of what burning a piece of coloured cloth means?
Cobden, I have a rather different list of Constitutional flaws.
As for election of judges – hmm, it seems to me that our problems in the US have more to do with too much democracy than too little, but I don’t know that it makes much difference for liberty whether judges are elected or appointed.
Lately, I’ve been thinking that popular election of Senators is a big mistake. Originally, each state government sent two Senators to DC as its representatives. The Senate thus was a bulwark of federalism, providing very real restraints on the national government in order to protect the interests of the several states, and incidentally reaping the benefits of multiple competing jurisdictions.
Now, the Senate serves no such function, and the Constitutional scheme of limited, enumerated powers for the national government is in tatters. I don’t think that is entirely a coincidence.
If you want to be seen as a bona fide crank, start prosing on about how popular election of the Senate is a bad idea! You might as well start quoting William Jennings Bryan’s “cross of gold” speech.
Perry: “I care little what the majority thinks, just so long as a sizable minority will simply not countenance the abridgement of essential liberties.”
I unequivically agree. But in my country, the courts are the most powerful, and indeed only, weapon available to the libertarian minority. It is the only branch of government which is largely shielded from majoritarianism; it is pledged to protect individual liberty from government violence.
And you are right that: “Liberty can survive under no system, not even the US system, unless there is an underpinning culture of liberty to defend it.”
Hence the importance of “constitution waving”: that document is the linchpin of our culture. Its prominence in the national dialogue is a constant reminder of the values to which our Founders committed us and the liberties which are our birthright.
In fact, “holding it up as a sacred text” is absolutely essenital, in my view. The American people must never be allowed to forget that their government is meant to be a mere servant — that they are born to be masters of themselves.
Abby: that is actually one of the better arguments I have heard on the subject of the practicle issue at hand in quite a while
I don’t know about you guys, but I’m strongly opposed to flag burning legislation. The day that flag burning is criminalized, I will burn a flag.