(This post from Chris
first appeared on HE's Right Angle.)
The New York Times, in its quest to remain America's most anti-American newspaper, has an editorial today titled “
Burning the Bill of Rights.” It’s as though the paper is trying to be wrong. (The Washington Post also got it wrong
last week.)
I realize this is something about which reasonable people can disagree, but that doesn’t make everyone right on this issue of protecting the flag. I’ve written on this rather extensively before (
here and
here) and wish to reiterate a few points in response to today’s Times editorial.
The editorial begins:
With the Fourth of July fast approaching, Senate Republicans are holding a barbecue. Unfortunately, instead of grilling hot dogs and hamburgers, they are trying to torch a hole in the First Amendment's free speech guarantee by passing an amendment to the Constitution that would allow federal and state authorities to punish flag-burning.
Well, would you look at that, the paper that loves to reveal classified information to our enemies who are determined to kill as many of us as possible is accusing Republicans of wanting to hurt the nation by burning the Constitution.
This amendment, every time it has been considered, has been a bipartisan effort. At least 49 state legislatures, both Republican and Democrat, have passed resolutions calling for Congress to submit an amendment to them for ratification. Congress has been the last to act. The Senate stands alone against the wishes of the American people.
The next paragraph of the editorial reads:
Some things should be out of bounds even in a competitive election year. Messing with the Constitution is one of them.
My question to the Times: Why should anything be “out of bounds” in a “competitive election year”? Or any election year, for that matter? If it’s something the American people consider important, it indeed should be a part of the election equation.
Liberals who love to trash those of us who believe in upholding some sort of moral code in the country and support doing so by amending the Constitution (since the Supreme Court has seen fit to strike down laws intended to do the same thing) are claiming that the Right is some how destroying the Constitution.
How is it that passing a Constitutional amendment in the very fashion the Constitution calls for when dealing with its own amending is somehow unconstitutional?
Leftists like those at the Times don’t really understand why protecting the flag is important. As I’ve written before, our flag uniquely represents the common bond shared by the people of this nation. No matter our differences -- party, politics, race, religion, economic status, or whatever -- we are united as Americans. It is a unity symbolized by a single emblem, the American flag. As the visible embodiment of our nation and its ideals, the flag has come to symbolize hope, opportunity, justice, and freedom to the people of this nation and to people all over the world. As Chief Justice Rehnquist put it, "Millions and millions of Americans regard it with an almost mystical reverence regardless of what sort of social, political, or philosophical beliefs they may have."
Take veterans for example. Those who put their lives on the line to defend the flag have a deep appreciation for everything it symbolizes. When an American flag has been in danger of capture, soldiers have risked, and lost, their lives to prevent it from falling. Many liberals probably consider such heroics foolish, but most Americans understand that soldiers who die to defend the flag die nobly in defense of principles they hold more precious than life itself. Most Americans strongly share that attachment to the flag.
The civil society our flag symbolizes has strong protections for individual rights. In throwing off tyranny, our Founding Fathers were careful to make sure that the republic they established would not simply substitute a tyranny of the majority. In securing those rights, perhaps the most important right that was guaranteed was the right to free speech, because a democracy could not function if dissent were suppressed. At the same time, our Founding Fathers established the right to free speech as a right, not a license. The Constitution was not intended or understood to grant a free speech license to say or do anything one pleases to express opinion. A right confers responsibilities as well as privileges in a civil society. Individuals are provided freedoms to act as protections from tyranny from the majority, but they are not free themselves to become little tyrants against the majority.
Parameters on free speech have never been limited to procedural parameters such as the time, place, and volume of speech. Content limits have also always existed. For instance, speech that threatens to cause imminent physical harm, like shouting "fire" in a crowded theater, or inciting a crowd to riot, is not protected. Speech that causes intangible harm, like obscenity (which the Supreme Court has called pollution of the moral environment) or the disclosure of confidential personal information also is not protected (though the New York Times has no problem disclosing vital classified information pertaining to national security).
When you don’t fully understand what it means to be an American, you can’t fully understand why the flag need to be protected. That, of course, doesn’t mean that all opponents of a flag-protection amendment lack understanding -- obviously, Senators McConnell (R.-Ky.) and Bennett (R.-Utah) know what it means. But when we hear or read the comments of liberals whose first instincts are to support the side of a cause most Americans are not on, we can realize where they’re coming from.
(Side note: Interestingly, the Times
lead editorial, which immediately precedes this anti-flag-protection screed, touts the importance of anti-free speech campaign finance reform.)
More from the Times editorial:
In reality, of course, the Stars and Stripes are in no urgent need of protection from scruffy match-wielding protesters. The Senate has been debating the flag issue on and off for years — ever since the Supreme Court's 1989 decision holding, quite properly, that flag-burning, however offensive it may seem, is constitutionally protected free speech.
The Times is not telling the whole story here about the SCOTUS decision(s).
The Supreme Court narrowly decided in 1989 (Texas v. Johnson) and again in 1990 (United States v. Eichman) that burning a flag is expressive conduct that is protected by the 1st Amendment. Both cases were decided 5-4. What is perhaps most important to note about these cases is that they overturned a federal law and laws in 48 states against desecrating the flag. Some of those laws had been on the books and enforced for over 100 years.
For 200 years, it was understood to be constitutionally legal to protect the American flag from desecration to express one's views, but the Supreme Court suddenly found otherwise. It declared that the 200-year understanding and practice of barring desecration as a means of expression was unconstitutional, because it thought that the interest of a state or the federal government in preserving the flag as a "symbol of nationhood and national unity" was not important enough to outweigh the infringement on anyone's free expression rights who wished to burn it. The majority simply asserted in Texas v. Johnson that the respondent "was prosecuted for his expression of dissatisfaction with the policies of this country."
Wrong. He was prosecuted, as Justice Stevens correctly stated in his dissension, because of the method he chose to express his dissatisfaction. He would not have been prosecuted if his words had not been accompanied by his burning of the flag. But it's important to note that he could have been prosecuted if he had instead chosen to accompany his words by using a motion picture projector to plaster slogans on the side of the Lincoln Memorial. (The legitimate, tangible interest protected would have been the preservation of the quality of an important national asset.)
The editorial, reflecting the Times’ view that a majority of Americans are morons who believe the flag warrants protection, continues:
The House has already approved the amendment, and its ratification by the states is virtually certain should the Senate go along.
How horrible! The American people, governed by the ever-changing Constitution (thanks to the Left who have demanded the Supreme Court, and, by judicial fiat, the rest of the nation, should see the Constitution as a living document), would be willing to amend the document -- the way they are supposed to.
The Constitution has not been amended by the people very often because the difficulty of doing so makes it impossible unless it is a matter that is of such paramount importance to them that they are able to overcome the procedural obstacles. Arguing that protection for this symbol will result in more amendments protecting other symbols is utter nonsense: The only way any other amendment to protect a symbol will pass will be if it rises to the monumental level of importance that only the flag has so far reached. If any other symbol becomes that important to the American people, it will deserve protection.
The argument that protecting this symbol with an amendment will lead the Supreme Court to uphold laws protecting less important symbols is also fallacious. The Supreme Court refused to protect the flag because it noted that the Constitution did not explicitly grant it any special exemption. Granting it that explicit special exemption will not convince the Court that implicit exemptions will apply to lesser symbols.
What I really don’t understand is why the Times says burning of flag is -- and should be -- constitutionally protected, but then goes on to say:
As an alternative to the amendment, two of its opponents, Senators Hillary Rodham Clinton, Democrat of New York, and Robert Bennett, Republican of Utah, have proposed a statute against flag-burning instead. Unquestionably, passing a law to address this nonproblem is preferable to rewriting the Constitution. But in crafting a bill with a comparatively narrow reach, its sponsors have not cured the affront to free speech. For that reason, it deserves to be defeated. [emphasis added]
Granted, they believe the statute should also be defeated, but the Supreme Court has already shot down such a federal law and the laws in 48 states against desecrating the flag.
Isn’t it interesting to note that most Senators, including Hillary, want some sort of legislation to deny the right to destroy the flag? The problem arises from the fact that most of those who claim they do not want to curb 1st Amendment rights are more than willing to support a statute that would aim to do the same thing. They either are speaking out of both sides of their mouths or they don't actually support legislation that would actually protect the flag: they know the Supreme Court will strike down any protection statute without a constitutional amendment.
The Times editorial concludes:
As debate on the amendment proceeds, past supporters like Harry Reid, the Democratic minority leader, owe a duty to search their consciences. Each senator must cast a vote as if it is the deciding one. Given the political math, it well could be.
The elitist Senate could well stand in the way once again. Many like to tout the idea that the Senate is to be a brake against legislation fueled by transient, popular passions. Fine. But the Senate should not be a brick wall against measures that reflect the deeply held, unwavering beliefs of the American people. Though the Senate is intended to be a "cooling saucer," it is not given license to ignore the will of the people by whom its members are elected, especially on issues of great importance. This constitutional amendment is vitally important because it goes to the very essence of "government by the people" -- it reflects the people's decision to give back to Congress a power that the Supreme Court has taken away.
The Supreme Court erred in its narrow 1989 and 1990 decisions. It failed to understand the importance of the flag to the American people, and the damage that its desecration causes to the social fabric of this Nation. The American people support the 1st Amendment right of anyone to say anything about their flag, but they know that the 1st Amendment was never intended to give an individual the right to burn their flag.
Many opponents of this amendment are focusing so strongly on individual rights that they are totally blinded to the rights of society as a whole. Congress' passing this amendment and sending it to the States for ratification could create the greatest debate on values and Americanism and the continued need for national unity this country has seen in some time.
Justice Fortas once opined: "A person may 'own' a flag, but ownership is subject to special burdens and responsibilities. A flag may be property, in a sense; but it is property burdened with peculiar obligations and restrictions."
