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Flag Desecration Amendment

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Qwertz

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The 'Flag Desecration Amendment' failed to pass the Senate today by only one vote. It passed the house by the required 2/3 last year and all 50 states have sent formal requests to Congress to submit a flag-burning amendment to them for ratification.

Phew. That was close.

-Q

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Amazing that 66 people in the Senate missed Texas v. Johnson day in law school.

But seriously, I half wish this would have gone through. Think of the implications. It passes and the Court upholds it, we have one big nail in the coffin that we all can see being built before our eyes. The Bill of Rights can be amended out of the Constitution. The Constitution authorizes its own destruction. It's a nullity. If that's the case, then the Court upholding such an amendment allows us to get on with it and get to the revolution.

It passes and the Court strikes it down? That's one great step in the direction of reaffirming liberty. Congress' power is in fact limited in a very important way. And the statement came from a "conservative" court. All the better.

To the Senators who supported this: You are thieves and/or liars who do nothing but pay lip service to ideals you don't believe in to retain an office allowing you to rule over people you don't like or respect. Either that, or you pay lip service to plain, naked evil. Whichever it is, you are all pathetic and can go rot in hell. You may sit in a nice chair, and have a nice home, and whatever else. But I am better than you. I am way better than you. And I have no such luxuries. You are garbage of the lowest order. I won't kill you, but I hope you die.

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A flag desecration banning amendment seems to be almost unnecessary if we assume for the moment that we are a forum of jingoistic republicans.

Anyone who steals a flag and burns it can be charged with theft and destruction of property. Anyone who burns a flag in a crowded public venue can be charged with reckless endangerment and disturbing the peace.

Of course, the law currently cannot prosecute any individual who obtains a permit (I am not even sure if these are necessary at all) and ignites a legally acquired flag in a reasonably orderly public demonstration. For all I know, these are the exact circumstances that just boil the blood of the arch-conservatives in Congress.

Another interesting tidbit worthy of note is that Hillary Clinton proposed an alternative to the flag burning amendment, which would ban flag burning by law as opposed to a constitutional amendment. I consider this relatively better but still undeniably bad from a philosophical viewpoint. I suspect that Senator Clinton is not actually that passionate about flag burning but instead this is just some campaign to package herself as being aggressive with foreign policy and unabashedly patriotic so that she can attain a greater share of what has been flippantly titled the "nascar dad" vote.

If there is any doubt, I am against any law to ban flag desecration as I see it as an unnecessary infringement on free speech.

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But seriously, I half wish this would have gone through. Think of the implications. It passes and the Court upholds it, we have one big nail in the coffin that we all can see being built before our eyes. The Bill of Rights can be amended out of the Constitution. The Constitution authorizes its own destruction. It's a nullity. If that's the case, then the Court upholding such an amendment allows us to get on with it and get to the revolution.

The implications probably would not be so dire, considering how the 21st Constitutional Amendment repealed the 18th Amendment. Surely the amendment will be phrased in such a way so as to avoid a blatant contradiction and would instead "repeal" the part of the First Amendment that protects desecrating the United States flag. Nevertheless, I still regard this as a dangerous precedent.

Excellent research on discovering Texas v. Johnson by the way!

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In germany there is up to 3 years of jail if you disparage the german flag in public.

Some people argue that the flag stands for democracy / constitutional state / freedom, thus burning a flag is a direct assault on that freedom / the constitution. :dough:

http://www.iuscomp.org/gla/statutes/StGB.htm#90a

But I know of no case in the last few years where someone was punished for burning a flag (but I think flag burning doesn't happen that often over here...).

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I'm trying to find the rational basis for optimism, and it's a real stretch here. The main question is what the wording of the resulting statute would be. Even if the failed amendment does give congress the power to pass such a law, that law still has to be constitutional, meaning that it can't violate the First Amendment. The last law cleverly elevated the flag to a holier status than the Torah, since it can neither be buried nor burnt. An equal protection problem would arise if the statute prohibits burning (the only proper method of disposing of a flag) but were enforced only for political burnings, and making it illegal to ever dispose of a flag would impose an undue burden on citizens. Without a direct repeal of the First Amendment (as they did in the 21st to get rid of the 18th), any law would still have to be consistent with the 1st, even if the 28th seems to sanction the new law. Don't ask me how you could craft such a law -- that's not my problem. Of course, my line of reasoning here is sheer sophistry, which the Supreme Court surely would never succumb to. Oh, wait....

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Louisiana (and I assume many other states) still have the old, unenforceable flag desecration laws on their books:

§116. Flag desecration

Flag desecration is the act of any person who shall intentionally, in any manner, for exhibition or display:

(1) Place or cause to be placed any word, mark, design or advertisement of any nature upon any flag; or

(2) Expose to public view any flag, upon which has been printed or otherwise produced, or to which shall have been attached any such word, mark, design, or advertisement; or

(3) Expose to public view, or have in possession for sale or any other purpose, any article of merchandise, or thing for holding or carrying merchandise, upon or to which shall have been produced or attached any flag, in order to advertise, call attention to or decorate such article; or

(4) Publicly mutilate, defile, or by word or act cast contempt upon any flag.

The word "flag" as used herein shall mean any duly authorized flag, shield, standard, color or ensign of the United States, the State of Louisiana, or the Confederate States of America, or any copy thereof.

Whoever commits the crime of flag desecration shall be fined not more than one hundred dollars, or imprisoned for not more than ninety days, or both.

But it also includes this caveat, one section down:

§117. Flag desecration; exceptions

The flag desecration section shall not apply to any act permitted by the statutes of the United States or of Louisiana, or by the United States army and navy regulations; nor shall it apply to the depicting of a flag upon any document, stationery, ornament, picture, or jewelry, with no design or words thereon and disconnected with any advertisement.

The latter section would make exeption for proper methods of disposal, which I believe are part of military law.

Louisiana's statute seems pretty restrictive - one could almost construe it to forbid artwork depicting the flag in an altered state. How far will it go? Will it be legal to make a cartoon of someone burning a flag, but illegal to make a live-action film depicting the same? What about photographs of people disrespecting the flag? Are they no longer considered 'art,' but rather 'evidence of a crime?' Will it be criminal to display these things, or just to make them? At what point to does something resemble the flag closely enough to be considered a mutilation of it? If the flag touches the floor while it's still in the sewing machine, will I get fined?

-Q

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Does SCOTUS have the authority to nullify a ratified amendment? How would that work?

My guess? Like it worked in Marbury. Marshall said that SCOTUS' original jurisdiction can't be enlarged or trimmed. It is fixed. Untouchable. Of course, SCOTUS jurisdiction is in the original Constitution, not an Amendment, so that's a pretty big difference. But if there's one Amendment the Court would put on the level of being unrepealable (and I could see a few), I think it would be the First.

What's their authority? To decide cases and controversies. If in doing that they had to nix a properly formatted Amendment, I think they would. Just take it out to an unrealistic extreme. Congress passes an Amendment saying it can kill people for any reason at any time. Where is SCOTUS going to get its authority to strike that? Another Amendment, like the Due Process Clause? But if you say the Court can't use an Amendment to nullify another Amendment, you have to find some other justification to strike it down, and I don't know where you would.

I know it seems outrageous to suggest that the Court could strike down a Constitutional Amendment. But think about what this Amendment would be doing. The Court has said that flag burning is protected speech. Thus, the Amendment would be banning protected speech. In general terms, therefore, the Amendment would be destroying a crucial part of the Bill of Rights. Amending the Constitution to destroy itself? I would hope the Court would do what it had to to keep that from happening.

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The implications probably would not be so dire, considering how the 21st Constitutional Amendment repealed the 18th Amendment. Surely the amendment will be phrased in such a way so as to avoid a blatant contradiction and would instead "repeal" the part of the First Amendment that protects desecrating the United States flag. Nevertheless, I still regard this as a dangerous precedent.

What would be so dire about it is that if the Court upheld it they would be saying that the Bill of Rights are subject to amendment. We've got three types of Constitutional provisions in play here: original provisions (e.g. Art. III); Bill of Rights; the other amendments. I think anything saying the Bill of Rights are subject to repeal would be bad. For example, that would conceivably allow Congress, if it felt so inclined, to eliminate the just compensation requirement from the Takings Clause. Maybe that's not a big concern now, but what if the politics flip someday? Ruh-roh.

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I'm shocked by the lack of rationality approaching Constitutional interpretation here. First off, the Court cannot, Constitutionally speaking, rule an amendment unconstitutional. There are no classes of constitutionality and an amendment is as much a part of the Constitution as the one written in 1787. To grant the Supreme Court the authority to overturn the Constitution is far scarier to me than allowing a bad amendment to pass; a bad amendment could be repealed, but giving ultimate power of governance to 9 individuals who can make law based on personal and abritrary whim is so far from true Constitutional republican government. Let's not ignored that term: constitutional government. How can we claim to be a Constitutionally-limited government if our constitution is not supreme, our laws are flexible based on the decision of 9 individuals and unchangeable by any other means?

Imagine, the Congress and States finally decided to pass an amendment repealing the 16th amendment and removing the government's power to tax; would you then stand up a praise a rogue Supreme Court for restoring the original provisions granting such authority? I would think not, and surely you can see the dangerous precedents for granting the court such authoirty.

I am deeply relieved that this did not pass and thankful for the 3 Republicans who prevented it from doing so.

What would be so dire about it is that if the Court upheld it they would be saying that the Bill of Rights are subject to amendment. We've got three types of Constitutional provisions in play here: original provisions (e.g. Art. III); Bill of Rights; the other amendments. I think anything saying the Bill of Rights are subject to repeal would be bad. For example, that would conceivably allow Congress, if it felt so inclined, to eliminate the just compensation requirement from the Takings Clause. Maybe that's not a big concern now, but what if the politics flip someday? Ruh-roh.

But what if the Congress wanted to repeal the authority of government to take property, period? What if they wanted to clarify the meaning of the Second Amendment to expand gun ownership rights in the United States? What happens if the court interprets one of the first 10 amendments unfavorably; is there then no recourse to amend the Constitution so as to correct it? If you hold the first 10 amendments as sacrosanct, then no, the Supreme Courts decision, whether it expands liberty or contracts it, is ultimately final and unapproachable.

What makes the 3rd amendment more important than the 13th, just by virtue of being passed among the first ten? What about the 27th amendment, which was part of the original 12 amendments submitted to the states (the dubbed "bill of rights"), is that so fundamental to our liberty that it cannot be repealed either? Now, I'm not attempting to diminish the value and importance of the first ten amendments, but this approach to Constitutional interpretation is troubling to me.

Edited by Captain Nate
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For our reference, a link to the Constitution.

How can we claim to be a Constitutionally-limited government if our constitution is not supreme, our laws are flexible based on the decision of 9 individuals and unchangeable by any other means?

Sure, they're changeable. The Supreme Court is the last word, yes. But what if Congress decides not to follow that word? Congress could reinstate the law until the cows come home. It's quite simple. SCOTUS: Law X is unconstitutional. Congress repasses law X. Would that be bad? Hell yes. Why? Because it would be an intragovernment civil war of sorts. Could it happen? Hell yes, if Congress wanted it to. Just ignore the Court. Don't think it's possible? I'd bet money it's happened to some degree.

Remember the Schiavo thing (the emergency grant of federal jurisdiction)? Congress is happy to get fuzzy with the courts when it suits it politically.

Imagine, the Congress and States finally decided to pass an amendment repealing the 16th amendment and removing the government's power to tax; would you then stand up a praise a rogue Supreme Court for restoring the original provisions granting such authority? I would think not, and surely you can see the dangerous precedents for granting the court such authoirty.
Would I stand up and praise the Court? There's a good reason you think I wouldn't, and it's because the contexts are totally different. We have three basic scenarios: laws that are clearly wrong; laws that are not clearly right or wrong; and laws that are clearly right. Laws banning possession of drugs by adults are clearly wrong. I think any legal means available should be used to overturn them. If, to get drug laws overturned, I have to tell a court that God and his magic elf think they should be overturned, then that's what I'll do. In that instance, we are living with a visible, major injustice.

How much of a travesty do you need before you would resort to tactics you wouldn't ordinarily use? Personally, I'd advocate philosophically questionable or downright wrong legal theories if that was needed to prevent injustice. I do not uphold form over substance at any cost.

Say the economy took a big downturn, and Congress convinced the public that the just compensation requirement needed to be taken out of the Fifth Amendment so the government didn't have that expense. It proposes an Amendment, and 3/5s of the State ratify it, and you have your Amendment. No more just compensation. What are you going to do get rid of it? Claim that it violates Due Process? Can't do that under your suggestion, because the Due Process Clause is itself part of an Amendment. Find something in the original Constitution? I looked and didn't see any basis. Are you going to let it stand, then, in the name of a proper method of Constitutional interpretation?

Can I see the dangerous precedent? Of course. And if we had a pretty philosophically sound government, or were talking about a law that was morally ambiguous, I'd be inclined to exercise more caution. But in certain areas, such as with drug laws, eminent domain, or a ban on flag burning (if it passed), we are without dispute in the middle of a war zone.

But what if the Congress wanted to repeal the authority of government to take property, period? What if they wanted to clarify the meaning of the Second Amendment to expand gun ownership rights in the United States?

I'll call you up and we'll have a party. :)

What happens if the court interprets one of the first 10 amendments unfavorably; is there then no recourse to amend the Constitution so as to correct it? If you hold the first 10 amendments as sacrosanct, then no, the Supreme Courts decision, whether it expands liberty or contracts it, is ultimately final and unapproachable.
No Supreme Court decision is ultimately final. If something is bad enough, Congress could flagrantly ignore the Court's authority. See above.

What makes the 3rd amendment more important than the 13th, just by virtue of being passed among the first ten?

Philosophically? Nothing by virtue of being passed at a certain point. There is the fact that the Bill of Rights happens to contain some of the most important provisions, but that's only coincidence, not causation. Legally? I think the Court would treat an Amendment to the Bill of Rights more harshly than a change to any other Amendment.

Now, I'm not attempting to diminish the value and importance of the first ten amendments, but this approach to Constitutional interpretation is troubling to me.
I'm sure you're not, and I'd also find it troubling if we were talking about laws that were clearly right or arguably right. But when we're talking about laws that are clearly unjust, I'm not going to stick to a principled approach for its own sake.

I'm shocked by the lack of rationality approaching Constitutional interpretation here.

On the whole I find your comments to be insightful. In particular, I find your comments on this subject insightful. This, however, I can do without. You might disagree with me, but what I suggest is far from irrational. Let's remember that we are people who agree on a lot of fundamental things. Knowing what I know of you on this board, I am very glad you are in the world, defending reason from its many enemies. I imagine you would say the same of me. A comment with such strong language as this one, therefore, doesn't really help.

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Sure, they're changeable. The Supreme Court is the last word, yes.

They have the last word on the interpretation of the Constitution, not the discretion to eliminate parts of it not to their liking. The court gets their authority from the Constitution, they have an obligation to uphold it, by holding that they can strike the passages they dislike is a philosophical contradiction because their destroying their own legitimacy (from the perspective of philosophy of law).

But what if Congress decides not to follow that word? Congress could reinstate the law until the cows come home. It's quite simple. SCOTUS: Law X is unconstitutional. Congress repasses law X. Would that be bad? Hell yes. Why? Because it would be an intragovernment civil war of sorts. Could it happen? Hell yes, if Congress wanted it to. Just ignore the Court. Don't think it's possible? I'd bet money it's happened to some degree.
If both branches decide not to carry out their roles as dilineated in the Constitution then we truly have lost the rule of law and objective government. But it's no worse if Congress does it, than if the Court does it, which is what you're advocating.

How much of a travesty do you need before you would resort to tactics you wouldn't ordinarily use? Personally, I'd advocate philosophically questionable or downright wrong legal theories if that was needed to prevent injustice. I do not uphold form over substance at any cost.

It's not merely form over substance. The United States represents a turning point in the history of governance, when man decided he would be ruled by laws, not by other men, and when laws would be objectively defined. This principle, which is at the heart of Objectivist philosophy on law and governance, is enshrined in the Constitution, which objectively defines the powers of the government as the supreme law of the land. Advocating judicial supremacy is a regression away from these ideals of objectively-prescribed government towards common law.

No Supreme Court decision is ultimately final. If something is bad enough, Congress could flagrantly ignore the Court's authority. See above.
That's not a solution, and such laws would be legally unenforceable without the Supreme Courts approval. If such a scenario happens (and it has happened in the past, where legislatures and executives defied the courts, and it hasn't always been pretty), it truly is the loss of liberty and the establishment of tyrannical rule based on personal whims of those in charge.

The Court's decision in Dread Scott, declaring that Americans of African descent could not be citizens and therefore not afforded equal protection of the laws, was never overturned by the court until the 14th amendment following the civil war. And it took over 50 years for the Court to rectify its decision in Plessy vs. Furgeson which legalized segregation laws. Surely, the potential of the Congress to change the Constitution to overturn supreme court decisions has a clear value in correcting such wrongs. But in your scenario, what would stop a court, angry about having their decision overturned by an amendment even if such an act was morally just, from "throwing out" the amendment in question? Nothing.

On the whole I find your comments to be insightful. In particular, I find your comments on this subject insightful. This, however, I can do without.

You're right and I sincerely apologize.

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You're right and I sincerely apologize.
I appreciate that. Now, as Dre would say, back to the lecture at hand.

The United States represents a turning point in the history of governance, when man decided he would be ruled by laws, not by other men, and when laws would be objectively defined. This principle, which is at the heart of Objectivist philosophy on law and governance, is enshrined in the Constitution, which objectively defines the powers of the government as the supreme law of the land.

I wholeheartedly agree with everything quoted here. Where I think we differ is in what we're calling "objectively defined" laws. I think there is something to be said for proper procedure. For example, I think that a law passed by Congress but not signed by the President could not fairly be enforced until it was signed by the President. (I can not imagine a scenario in which I would think otherwise, but if you have one in mind, I'll certainly consider it.)

But I think the definition of "objective law" includes both form and substance. If a proper law (e.g. prohibiting murder) is passed with the proper formalities, marvelous. If a proper law is not passed with the proper formalities, I imagine I would probably say that it ought be passed with proper formalities. If an improper law is not passed with the proper formalities, marvelous. Let it rot.

If an improper law is passed with the proper formalities, however, I do not think that law is therefore legitimate, i.e. objective. The antitrust laws, for example, can not accurately be called "objective."

I can boil down my position to a very short statement. Formalism be damned if that is needed to correct an obvious injustice. The extent of the damning depends on the context. In this case, if the amendment had passed, I would be willing to throw just about any formalism out the window. An improper Constitutional Amendment is a serious travesty. I think that mandates responding with minimal concern for formalism.

You say that "it's not merely form over substance." What I am having trouble understanding, however, is under what circumstances, if any, you would condone committing a procedural flaw, even a drastic one, to prevent some sort of injustice. I have given you two standards. How much injustice? "Obvious injustice." How much ignoring of procedure? "Depends on context" is all I have for now.

What are your standards here? Let's start with the easiest question. Would you ever condone ignoring some procedural defect, constitutional mandate, etc. to prevent injustice? I've given you the Takings Clause example. Another one you might want to consider is where someone would be wrongfully executed but didn't, say, comply with some procedural requirement. Btw, I'm not equating minor procedural defects with the constitutional problem I created earlier. I just lay it all out there so we might further understand our principles.

This, I think, is essential for the constructive progression of this discussion. If you say there are laws you would not uphold under all circumstances, as I have, we should venture to understand why so we can fully understand the nature of our disagreement.

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I think that mandates responding with minimal concern for formalism.

I like this. But here's a further question: A violent response is the response with the least concern for formalism. At what point would a violent response be justified? What degree of injustice is required of a properly formalized statute or amendment before a violent response is justified? Or becomes necessary?

-Q

Disclaimer: This post is not intended to "advocate, abet, advise, or teach the duty, necessity, desirability, or propriety of overthrowing or destroying the government of the United States or the government of any State, Territory, District or Possession thereof, or the government of any political subdivision therein, by force or violence, or by the assassination of any officer of any such government."

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.. improper law ..., I do not think that law is ...legitimate, i.e. objective. The antitrust laws, for example, can not accurately be called "objective."
Not central to the topic, but... when I use the term "objective law", I mean "objectively-specified" law. This refers to the specificity and "knowability" of the law (i.e., the extent to which it does not need someone's subjective interpretation). I'm not referring to borderline cases, but to knowing about a violation in general. So, a law that says "Remain under 60MPH" is objectively specified, while a law that says "Do not go too fast" is less objectively specified.

What you're referring to as "objective" laws could better be termed "objectively-derived" laws. I think it's useful to use two different terms.

As for antitrust laws, they're non-objective in derivation and in specification.

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