29/06: Rallying Around the Flag
Category: Politics
Posted by: A Waco Farmer
I recommend Peggy Noonan's column in the Opinion Journal today in its entirety: "Stop Spinning: Contrarian thoughts on Hillary, flag-burning, the Times and 'The View.'" It is brilliant and a must-read from start to finish.
I am posting and associating myself with her remarks on the flag amendment. She says what I have been thinking. I have held my fire on this issue over the last few weeks (a more apt analogy, perhaps, is that I "could not get a shot off"), but, nevertheless, Peggy Noonan gets it exactly right with her comments.
Noonan:
"The flag burning amendment is a bad idea, and will not prove, in the end, politically wise or fruitful to any significant degree. Three reasons. One is that the American people can sense, whether they support a constitutional ban or not, that they're being manipulated. They know supporters are playing with their essential patriotism for political profit. They know opponents are, by and large, taking their stand for equally political reasons. They can sense when everyone's posturing. It's not good, in the long term, when people sense you're playing with their deepest emotions, such as their love of country.
"Second, nobody thinks America is overrun with people burning flags, so the amendment does not seem even to be an exotic response to a real problem. There are a lot of pressing issues before the Congress, and no one thinks this is one of them. Voters know it's hard to do a risky thing like define marriage as a legal entity that can take place only between an adult human male and an adult human female. That actually would take some guts. It's easy--almost embarrassingly so--to make speeches about how much you love the flag.
"Third, Americans don't always say this or even notice it, but they love their Constitution. They revere it. They don't want it used as a plaything. They want the Constitution treated as a hallowed document that is amended rarely, and only for deep reasons of societal or governmental need. A flag burning amendment is too small bore for such a big thing. I don't think it will come up as a big issue every even numbered year. I think it's going to go away. There's too much else that's really needed."
On the other hand, I was also impressed (but not swayed) by the arguments of one of my favorite public servants, Orrin Hatch, who did very well in explaining the legislative and judicial history of this issue, as well as the principle at stake:
Hatch :
"[U]nelected judges have mistakenly concluded that it is the courts that have exclusive dominion over the Constitution. This was certainly the case in 1989, when a severely divided Court reversed 200 years of jurisprudence and overturned the considered judgment of the American people in almost every state.
"For generations, the American people provided protections for their flag. On June 20, 1989, forty-eight states and the District of Columbia had statutes that protected the flag from physical desecration. On June 21, 1989 all of those statutes were unconstitutional.
"How did this come to pass?
"One vote on the Supreme Court switched. That’s it. One vote, and the will of the people was overturned in nearly every state. For many years the Court well understood the obvious and compelling interest of political communities in protecting the American flag from desecration."
More of Hatch's compelling narrative:
"The flag is a unique symbol of our nationhood that demands protection.
"The American people do not share a common religion or common political beliefs. We do not share an ethnic heritage. But there are a few public symbols that we do share as a people. The American flag is a unique representation of our remarkable union. Its 13 stripes represent our origins as a nation, and its 50 stars—separate but unified on a field of blue— represent what we have become. From a small outpost of colonies, fighting for their freedom, we have become a beacon of liberty to the world.
"For years, the interest in protecting this symbol was deemed strong and real enough to rebut serious constitutional challenges.
"What changed?
"Why do the American people no longer have the right to protect the flag from physical desecration?
The Supreme Court changed its mind. I am not making this up.
"On June 20, 1989, nearly every state had laws protecting the flag from physical desecration. One day later all of those laws were unconstitutional. All that changed is that the Supreme Court determined that it would disregard the beliefs of the American people and their representatives in Congress and in the states.
"When the Supreme Court had the opportunity to execute its balancing test in Texas v. Johnson—balancing the interests of the people in prohibiting certain conduct with the individual’s interest in expressing himself in a particular manner—the justices put their finger on the scale.
"They rejected as insufficient the state’s interest, one supported by the people, in protecting the flag. They did not do so through a unanimous opinion. The justices were severely divided, issuing a five to four decision.
"Justice John Paul Stevens’ dissent was compelling. He spoke for the opinion that the Court had arbitrarily abandoned.
"He said, “The Court is…quite wrong in blandly asserting that respondent ‘was prosecuted for his expression of dissatisfaction with the policies of this country, expression situated at the core of our First Amendment values.’ Respondent was prosecuted because of the method he chose to express his dissatisfaction with those policies. Had he chosen to spray-paint—or perhaps convey with a motion picture projector—his message of dissatisfaction on the façade of the Lincoln Memorial, there would be no question about the power of the Government to prohibit his means of expression. The prohibition would be supported by the legitimate interest in preserving the quality of an important national asset. Though the asset at stake in this case is intangible, given its unique value, the same interest supports a prohibition on the desecration of the American flag.”
"The American people agreed.
"The Court got this one wrong.
"It got it very wrong.
"And so Congress acted immediately.
"We believed that Congress did have the power to protect the flag. For nearly a hundred years the courts had upheld state and federal flag protection measures.
"On July 18, 1989 two separate measures were introduced in the Senate. Former Senators Robert Dole, Alan Dixon, Strom Thurmond, and Howell Heflin introduced S.J. Res. 180, a constitutional amendment that would restore the power to protect the flag to the states and affirm the existing power of Congress to do so.
"On the same day, Senators Joseph Biden, William Roth, and William Cohen introduced the Flag Protection Act. While the amendment would have merely restored and confirmed the power of the people’s representatives to protect the flag, this bill would have actually codified that legal protection.
"Ultimately, the Senate acted on the bill authored by my colleague from Delaware, Senator Biden. As the Chairman of the Judiciary Committee, he was committed to resolving this issue. He held four hearings, with 20 hours of testimony and 26 witnesses. After consulting with many experts, he was convinced that his bill would pass constitutional muster.
"It was a great bill.
"Consistent with the desires of the American people, it provided extremely broad protection for the American flag. This is what became law. “[W]hoever knowingly mutilates, defaces, physically defiles, burns, maintains on the floor or ground or tramples upon any flag of the United States shall be fined under this Title or imprisoned for not more than one year, or both.”
"This bill passed by an overwhelming bipartisan vote. There are not many things that go through the Senate on a vote of 91 to 9, but the determination to pass a constitutional statute to protect the flag from physical desecration was one of them.
"Going back and looking at that roll call vote, we should remain proud of our actions. Current Senators, including my colleagues on the Judiciary Committee, Senators Joseph Biden and Herb Kohl, supported the bill. So, too, did my colleague from Kentucky, Senator McConnell, who has since been elected Majority Whip.
"A number of other senators who are no longer here supported this as well, including former Democratic Leader Tom Daschle.
"It was a good bill.
"But the Supreme Court had other ideas.
On June 11, 1990, the Supreme Court struck down this overwhelmingly approved statute in United States v. Eichman. Again the Court was severely divided along familiar lines.
"So what now?
"What course of action is available to Congress?
"The Court had given us its opinion. It said that statutory protection of the American flag was not content-neutral and therefore violated core constitutional rights to expressive conduct.
"So Congress began to focus its attention on a constitutional amendment that would restore the power of the people to protect the flag from physical desecration."
I am posting and associating myself with her remarks on the flag amendment. She says what I have been thinking. I have held my fire on this issue over the last few weeks (a more apt analogy, perhaps, is that I "could not get a shot off"), but, nevertheless, Peggy Noonan gets it exactly right with her comments.
Noonan:
"The flag burning amendment is a bad idea, and will not prove, in the end, politically wise or fruitful to any significant degree. Three reasons. One is that the American people can sense, whether they support a constitutional ban or not, that they're being manipulated. They know supporters are playing with their essential patriotism for political profit. They know opponents are, by and large, taking their stand for equally political reasons. They can sense when everyone's posturing. It's not good, in the long term, when people sense you're playing with their deepest emotions, such as their love of country.
"Second, nobody thinks America is overrun with people burning flags, so the amendment does not seem even to be an exotic response to a real problem. There are a lot of pressing issues before the Congress, and no one thinks this is one of them. Voters know it's hard to do a risky thing like define marriage as a legal entity that can take place only between an adult human male and an adult human female. That actually would take some guts. It's easy--almost embarrassingly so--to make speeches about how much you love the flag.
"Third, Americans don't always say this or even notice it, but they love their Constitution. They revere it. They don't want it used as a plaything. They want the Constitution treated as a hallowed document that is amended rarely, and only for deep reasons of societal or governmental need. A flag burning amendment is too small bore for such a big thing. I don't think it will come up as a big issue every even numbered year. I think it's going to go away. There's too much else that's really needed."
On the other hand, I was also impressed (but not swayed) by the arguments of one of my favorite public servants, Orrin Hatch, who did very well in explaining the legislative and judicial history of this issue, as well as the principle at stake:
Hatch :
"[U]nelected judges have mistakenly concluded that it is the courts that have exclusive dominion over the Constitution. This was certainly the case in 1989, when a severely divided Court reversed 200 years of jurisprudence and overturned the considered judgment of the American people in almost every state.
"For generations, the American people provided protections for their flag. On June 20, 1989, forty-eight states and the District of Columbia had statutes that protected the flag from physical desecration. On June 21, 1989 all of those statutes were unconstitutional.
"How did this come to pass?
"One vote on the Supreme Court switched. That’s it. One vote, and the will of the people was overturned in nearly every state. For many years the Court well understood the obvious and compelling interest of political communities in protecting the American flag from desecration."
More of Hatch's compelling narrative:
"The flag is a unique symbol of our nationhood that demands protection.
"The American people do not share a common religion or common political beliefs. We do not share an ethnic heritage. But there are a few public symbols that we do share as a people. The American flag is a unique representation of our remarkable union. Its 13 stripes represent our origins as a nation, and its 50 stars—separate but unified on a field of blue— represent what we have become. From a small outpost of colonies, fighting for their freedom, we have become a beacon of liberty to the world.
"For years, the interest in protecting this symbol was deemed strong and real enough to rebut serious constitutional challenges.
"What changed?
"Why do the American people no longer have the right to protect the flag from physical desecration?
The Supreme Court changed its mind. I am not making this up.
"On June 20, 1989, nearly every state had laws protecting the flag from physical desecration. One day later all of those laws were unconstitutional. All that changed is that the Supreme Court determined that it would disregard the beliefs of the American people and their representatives in Congress and in the states.
"When the Supreme Court had the opportunity to execute its balancing test in Texas v. Johnson—balancing the interests of the people in prohibiting certain conduct with the individual’s interest in expressing himself in a particular manner—the justices put their finger on the scale.
"They rejected as insufficient the state’s interest, one supported by the people, in protecting the flag. They did not do so through a unanimous opinion. The justices were severely divided, issuing a five to four decision.
"Justice John Paul Stevens’ dissent was compelling. He spoke for the opinion that the Court had arbitrarily abandoned.
"He said, “The Court is…quite wrong in blandly asserting that respondent ‘was prosecuted for his expression of dissatisfaction with the policies of this country, expression situated at the core of our First Amendment values.’ Respondent was prosecuted because of the method he chose to express his dissatisfaction with those policies. Had he chosen to spray-paint—or perhaps convey with a motion picture projector—his message of dissatisfaction on the façade of the Lincoln Memorial, there would be no question about the power of the Government to prohibit his means of expression. The prohibition would be supported by the legitimate interest in preserving the quality of an important national asset. Though the asset at stake in this case is intangible, given its unique value, the same interest supports a prohibition on the desecration of the American flag.”
"The American people agreed.
"The Court got this one wrong.
"It got it very wrong.
"And so Congress acted immediately.
"We believed that Congress did have the power to protect the flag. For nearly a hundred years the courts had upheld state and federal flag protection measures.
"On July 18, 1989 two separate measures were introduced in the Senate. Former Senators Robert Dole, Alan Dixon, Strom Thurmond, and Howell Heflin introduced S.J. Res. 180, a constitutional amendment that would restore the power to protect the flag to the states and affirm the existing power of Congress to do so.
"On the same day, Senators Joseph Biden, William Roth, and William Cohen introduced the Flag Protection Act. While the amendment would have merely restored and confirmed the power of the people’s representatives to protect the flag, this bill would have actually codified that legal protection.
"Ultimately, the Senate acted on the bill authored by my colleague from Delaware, Senator Biden. As the Chairman of the Judiciary Committee, he was committed to resolving this issue. He held four hearings, with 20 hours of testimony and 26 witnesses. After consulting with many experts, he was convinced that his bill would pass constitutional muster.
"It was a great bill.
"Consistent with the desires of the American people, it provided extremely broad protection for the American flag. This is what became law. “[W]hoever knowingly mutilates, defaces, physically defiles, burns, maintains on the floor or ground or tramples upon any flag of the United States shall be fined under this Title or imprisoned for not more than one year, or both.”
"This bill passed by an overwhelming bipartisan vote. There are not many things that go through the Senate on a vote of 91 to 9, but the determination to pass a constitutional statute to protect the flag from physical desecration was one of them.
"Going back and looking at that roll call vote, we should remain proud of our actions. Current Senators, including my colleagues on the Judiciary Committee, Senators Joseph Biden and Herb Kohl, supported the bill. So, too, did my colleague from Kentucky, Senator McConnell, who has since been elected Majority Whip.
"A number of other senators who are no longer here supported this as well, including former Democratic Leader Tom Daschle.
"It was a good bill.
"But the Supreme Court had other ideas.
On June 11, 1990, the Supreme Court struck down this overwhelmingly approved statute in United States v. Eichman. Again the Court was severely divided along familiar lines.
"So what now?
"What course of action is available to Congress?
"The Court had given us its opinion. It said that statutory protection of the American flag was not content-neutral and therefore violated core constitutional rights to expressive conduct.
"So Congress began to focus its attention on a constitutional amendment that would restore the power of the people to protect the flag from physical desecration."
