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Burning the Constitution

The flag burning controversy has made it back to the front pages with the passage by the House of a Constitutional Amendment prohibiting desecration of our most important national symbol. This is an issue worthy of comment because it strikes to the heart of what is so terribly wrong with both political parties in 1990s America.

In essence, Republicans are trying to correct a terrible idea by imposing an even worse idea on top of it. In order to understand what is wrong all the way 'round, we need to start by revisiting the original issues.

The Supreme Court, in a classic example of wrongheaded fuzzy-wuzzy judicial liberalism, declared that laws prohibiting the desecration of the flag were in violation of the 1st Amendment. The truth in this proposition can be gauged by asking yourself one simple question: Would the people who wrote the Constitution agree that the 1st Amendment was designed to prevent the government from stopping flag burnings? My own opinion is that Washington would have tossed a flag burner in the pokey, and Adams would have thrown away the key. Answering "yes" to the question above only makes sense if you believe that the Founders also meant to protect nude dancing and swearing in public. The fundamental purpose of the 1st Amendment's protection of "speech" is to ensure that government is not able to suppress political dissent. That is literally the only purpose it serves. The line between suppressing political dissent and prohibiting obnoxious behavior is not always clear, but in this case it is clear enough to make a nice, clean, sensible cut.

Let us start with some parallels. Suppose I feel the urge to vent my anger at Australia's economic policies. Would I be Constitutionally protected if I were to burn a cute and fuzzy Koala Bear in protest? Or what if I protested the current administration's lack of moral compass by painting the flag aaalllllll over my body and walking naked down main street at noon? I don't think that even the most wild-eyed ACLU-er would say that these things are protected 1st Amendment Freedoms.

Well, why not? It can only be because a) the behavior is obnoxious, and b) there is nothing so unique about what I am trying to say that it cannot be said equally well in a less obnoxious way. At bottom, free speech is the ability to get out political ideas, not the freedom to behave badly. If I wish to vent my hatred of the good ol' US of A there are many means by which I can do so, and which do not involve torching cute animals or symbols of national pride: I can hold a protest, write letters to the editor, call my Congressman, run for Congress, start a magazine, etc. There is no message so dependent upon burning the flag that the act, by itself, deserves protection. If my goal as a protestor is not to transmit ideas but simply to shock, then clearly the Constitution gives me no more protection than it does a flasher.

This analysis validates the instinctive reactions of most Americans and of Congress. Unfortunately, many of those who understand the problem insist on curing the patient with poison. I am not inherently opposed to amending the Constitution, as long as we are doing it for proper reasons. We are not doing it for proper reasons here. In fact, the flag desecration amendment might just be the worst idea since Prohibition.

In other musings I have postulated some tests to determine if an proposed amendment is a bad idea. Let's see how this one stacks up.

Does the amendment primarily deal with Policy? Clearly, in this case it does, so we have an obligation to throw the amendment out. The Constitution should not deal with policy. It should address the organization, limits, and processes of government. The entire problem with judicial activism is precisely that judges are injecting policy into the Constitution via judicial review. We need to stop them from going in the back door, but we also must send away anyone knocking on the front door. This proposed amendment is essentially writing a statute into the Constitution that proscribes certain individual behavior on the part of citizens. This is a very bad and dangerous idea and a lousy precedent.

Is the amendment overly complicated or overly vague? This is another very bad sign. The sort of principles that are appropriate for inclusion in the Constitution are by their very nature simple, and the most striking things about the U.S. Constitution are its clarity, simplicity and brevity. There appears to be an direct relationship between the length and simplicity of a national constitution and its staying power. Ours has lasted 200+ years because it addresses fundamental principles in a clear and simple manner.

Because this amendment deals not only with the fairly straightforward notion of "burning" a flag, but rather bans the "desecration" of the flag, it will leave it up to the courts to decide what that means. Is wearing a flag on one's sleeve desecration? If we leave it to the courts to tell us, one of two things will happen. Either the courts will declare anything short of using a flag for toilet paper not to be desecration, or we will end up with a confusing series of contradictory rulings that will serve primarily to keep lawyers employed.

Does the amendment strengthen a weak plank in the bulwark of democracy? If the machinery of government ain't broke, don't fix it. Flag burning is annoying, offensive and scandalous behavior, but in no way, shape or form does it threaten the ability of the United States to survive as a republican democracy.

If this Amendment is such a bad idea, why are so many otherwise sensible politicians supporting it? First, they are frustrated. They are tired of seeing arrogant and stupid court decisions invalidate the will of the American people. Second, they are politicians. They know this is a popular stand, and that 95% of the voters will never pause to think about whether it is a good idea to amend the Constitution.

In politics as in sports, the player who acts aggressively is much less likely to get injured or penalized than is the player who reacts. History will show that the Supreme Court has engaged in half a century of breathtakingly radical social aggression, showing utter contempt for the actual nature and meaning of the Constitution in pursuit of policy goals. Those who oppose this activity (mainly conservatives and libertarians) are slow to react, and when they do they do stupid things that only serve to penalize the team and may well cost them the game.

So, what can we do? Two things come to mind. First, we can get serious about the philosophy of judicial nominees. When a clearly activist nominee comes before the Senate, that activism, whether liberal or conservative, ought to disqualify him. Any judge who views the Constitution as an elastic document just waiting for his social insight is a danger to the republic and should be so treated.

Second, Congress already has the Constitutional authority to limit the jurisdictional scope of the Supreme Court. This is a seldom used and seldom tested area of the Constitution, but it exists for exactly the issue at hand. When the courts get out of control, it is up to the representatives of the people to rein them back in.

In any case, taking direct positive action to revivify the balance of powers can only serve to "turn the momentum" of the game in our favor.