On burning the flag and trashing the Constitution

An anti-Flag-burning Constitutional amendment would be an abomination. But a statue seems much less offensive, and I’m all for Hillary Clinton’s move to give her colleagues shelter from the storm.

The notion of writing a restriction on freedom of expression into the text of the Constitution ought to offend every patriot. To pledge allegiance to the Flag instead of “the Republic for which it stands” is the political equivalent of the sin of idolatry: confusing a symbol with its referent, to the extreme of elevating the symbol above the referent.

The Bill of Rights is as central to that Republic as anything could be: surely more central than the Flag. So to deface the Bill of Rights in order to defend the Flag is political idolatry at its worst.

That said, it’s not obvious to me that the Supreme Court decisions extending First Amendment protection to Flag-burning were necessarily right. And I have considerable sympathy for those who recall the flag draped over a parent’s or spouse’s or sibling’s or child’s military coffin and who react badly to reports of its being burned or otherwise deliberately desecrated. So if it were in fact possible to pass a Constitutionally valid statute forbidding certain disrespectful acts directed at the Flag, I would find such a law inoffensive.

Your mileage may vary, of course. But is it really worth while giving offense to a large portion of the electorate over such a trivial issue? After all, it’s not as if there’s some idea out there whose expression an anti-Flag-burning law would make impossible.

So, despite my strong desire that Hillary Clinton not be the Democratic nominee for President in 2008, I can’t join Arianna Huffington in criticizing Clinton for offering a statute in lieu of the Republican Constitutional amendment. Voting for the statute gave Senate Democrats a way to vote against Flag-burning without voting to draw a moustache on James Madison’s supreme work of art.

I’m even willing to give a pass to those swing-state Democrats who voted for the Amendment itself. I admire the courage and taste of those who voted the other way, and I’m especially grateful to Sen. Bennett of Utah for parting company with his party and providing the decisive vote that denied the proposed amendment the 2/3 vote it needed to move on. But if holding a Democratic Senate seat from Florida or Nebraska or West Virginia or Colorado or Nevada requires voting for the Republicans’ repugnant gesture, that seems to me a price well worth paying.

Of course, that doesn’t excuse those who brought the issue to the floor, for crassly political purposes, or chickenhawks like George Allen who used to to question the integrity of their political opponents.

Footnote The predominant form of religious idolatry in the United States is Bible-worship. Too bad so many of our religious fanatics prefer building monuments to the Ten Commandments to understanding them or obeying them.

Author: Mark Kleiman

Professor of Public Policy at the NYU Marron Institute for Urban Management and editor of the Journal of Drug Policy Analysis. Teaches about the methods of policy analysis about drug abuse control and crime control policy, working out the implications of two principles: that swift and certain sanctions don't have to be severe to be effective, and that well-designed threats usually don't have to be carried out. Books: Drugs and Drug Policy: What Everyone Needs to Know (with Jonathan Caulkins and Angela Hawken) When Brute Force Fails: How to Have Less Crime and Less Punishment (Princeton, 2009; named one of the "books of the year" by The Economist Against Excess: Drug Policy for Results (Basic, 1993) Marijuana: Costs of Abuse, Costs of Control (Greenwood, 1989) UCLA Homepage Curriculum Vitae Contact: Markarkleiman-at-gmail.com

39 thoughts on “On burning the flag and trashing the Constitution”

  1. Talking of idolatry, can anyone explain to this Brit how otherwise normal people can "pledge allegiance to" a flag? The phrase has a precise meaning going back to feudal homage: it is to accept the political authority over oneself of some authority, and to promise to obey in good faith the authority's laws and lawful executive decisions of, in exchange for rights of protection and citizenship. See Marc Bloch, Feudal Society. You can pledge allegiance to "the Republic", but not a symbol of it. It you mean "respect and honour", whu not say so, and avoid an education in doublethink?
    The amendment reads: "The Congress shall have power to prohibit the physical desecration of the flag of the United States." This raises a problem that would be faced by any legislation on the subject including Senator Clinton's clever alternative: what is the flag of the United States? Could I freely burn this? http://www.sos.state.ga.us/museum/html/flag_1795-… . On TV no-one would count the stars.

  2. I personally find even misguided amendments far less offensive than "living" constitutionalism. It is, after all, a guesture of respect towards a constitution to actually attempt to amend it when you want to change the meaning. At least you're not treating it as meaningless. And you're allowing the states the opportunity to reject the amendment.
    You want real contempt towards a constitution, it's to be found among the people who treat the words as empty vessels into which a judge is entitled to pour any meaning they see fit, without securing the permission of the states for the changes. That isn't just contempt towards a particular instance of a constitution, it's contempt towards the very concept of constitutions.

  3. "So if it were in fact possible to pass a Constitutionally valid statute forbidding certain disrespectful acts directed at the Flag, I would find such a law inoffensive."
    I doubt you could find such a statute, because it would be very hard to word what to prohibit without specifically tying it to a political statement.
    Even if you could, why would you want to do so? What's the point in such a law? Who's burning flags? Where's the epidemic of flag burning? And, the important point: Just who would be stopped by a statute against flag burning? If anything, flag burning would increase dramatically, because you'd finally be able to get some attention for doing it — get arrested, etc.
    And the notion of passing a stupid law that's counter-productive, just to curry votes? That I find offensive.

  4. As long as the rules (albeit not now legally binding) for respectful treatment of the US flag prescribe burial and burning as proper methods for disposing of flags that can no longer be flown, you're going to have an awfully difficult time distinguishing between desecration and respectful destruction except by going directly to the expressive intent of the act. Ditto as long as people ask the president or other leaders to autograph their flags — the difference between that and writing obscenities on one is purely a matter of the content of the message.
    Perhaps there is a class of flag-desecration acts that can be distinguished from flag-respecting acts by something other than the precise communicative intentions of the actor, but I can't imagine a law written narrowly enough to forbid only those acts being satisfying to anyone, or even passing Supreme Court review on an "as applied" basis.

  5. An anti-flag burning amendment is a stupid thing. I agree that it is the secular equivalent of idolatry. However I completely agree with Brett that offering a really stupid amendment at least respects the Constitution enough to realize that important changes have to come through the amendment process. Modern liberal psuedo-jurisprudence is far more disrespectful of Madison's work than an ill considered Constitutional amendment.

  6. Bellmore: "You want real contempt towards a constitution, it's to be found among the people who treat the words as empty vessels into which a judge is entitled to pour any meaning they see fit, without securing the permission of the states for the changes."
    There are no such people and judges, except in the minds of those citizens who despise our checks and balances system because it interferes with their desire to impose a vast network of viewpoint-based limitations on fundamental individual rights through the power of the majority, the exact thing the Founders intended to prevent by opining that neither the state nor the federal government (each an agent of the majority) is the granter of fundamental individual rights.

  7. "There are no such people and judges…"
    Really? I offer you former Supreme Court Justices Brennan and Marshall who believed that the Constitution outlawed capital punishment despite the fact that the actual document provides procedural safeguards for capital trials. Perhaps they believed it was for CAPITALIZED trials? While I'm one who believes that interpretational leeway or confusion exists in some cases, an alleged jurisprudence which allows you to reach conclusions which are the opposite of those found in the text are rather dubious.

  8. Sebastian,
    Brennan and Marshall's opinions are rooted in the Eighth amendment, which bans imposition of excessive bail and forbids cruel and unusual punishment.
    The only mention of a death penalty in in the Fifth amendment, and it is mentioned more en passant than directly: "No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, …, nor be deprived of life, liberty, or property, without due process …"
    The framers clearly consider capital punishment a possibility, but don't consider it mandatory. The death penalty is not prescribed even for treason, the only crime actually mentioned in the document. The penalties for treason are left to statute.
    At best you can say that there is conflict within the Constitution regarding capital punishment. If you consider our well-documented inability to administer it impartially and fairly, with adequate protection against executing people who are factually innocent, it appears to me that Justices Marshall and Brennan are correct. The death penalty is unconstitutional on Eighth Amendment grounds.
    BC

  9. Sebastian,
    As far as the Fifth Amendment providing "procedural protection" of the accused in a capital case, a requirement for a Grand Jury indictment isn't much of a protection. Some wag once pointed out that a competent prosecutor could obtain a Grand Jury indictment of a ham sandwich for the murder of a pig.
    Worse yet, it's not simply required for capital cases, it's required for any 'infamous crime.' That is to say, capital cases aren't somehow special.
    BC

  10. "The framers clearly consider capital punishment a possibility, but don't consider it mandatory."
    Correct. Who ever said anything about mandatory death penalties? If it is a legal possibility directly expressed in the Constitution it is not unconstitutional. That is completely normal interpretation of a text–legal or otherwise.
    "If you consider our well-documented inability to administer it impartially and fairly, with adequate protection against executing people who are factually innocent, it appears to me that Justices Marshall and Brennan are correct."
    Marshall specifically rejects the view that the death penalty would be ok under better legal procedures. And, by the way, your argument is an argument for better procedures not a wholesale rejection of the death penalty.
    This is a perfect example of injecting one's own values in contravention of the Constitution without bothering with the amendment process. You can argue that "cruel and unusual" is ambiguous if you want. But it isn't infinitely ambiguous. It doesn't mean "nice and full of sugar". It doesn't mean "purple". From the rest of the text we also know it doesn't mean "all forms of the death penalty". Brennan and Marshall (Supreme Court Justices) both chose to put their view of appropriate punishment ahead of the Constitutional view. They did so without an amendment. Hence, my statement: "Modern liberal psuedo-jurisprudence is far more disrespectful of Madison's work than an ill considered Constitutional amendment."

  11. The point is that the Constitution, Bill of Rights included, clearly contemplates the use of the death penalty, so construing it to prohibit the use of the death penalty is an act of judicial malfeasance, a direct contradiction of the text.
    There are numerous examples where the Supreme court has issued ruling directly contradicting the text, or merely totally lacking any textual basis.
    The example I'd give, (Because you probably have no partisan reason to ignore it.), is the Sixth amendment's guarantee of trial by jury (Among other safeguards) in ALL criminal cases. The Supreme court decided that "all" doesn't actually mean "all", and that you can be denied a jury trial if the proposed sentence is below an arbitary threshold they just pulled out of empty air.

  12. 'To pledge allegiance to the Flag instead of "the Republic for which it stands" is the political equivalent of the sin of idolatry'
    Well, it clearly says 'pledge allegiance to the flag …AND to the republic….'. Don't let the facts get in the way of a temper tantrum, though.

  13. The saddest part of the whole flag burning amendment debate is that the American electorate is so shallow that many senators realistically believe that their failure to vote for this travesty would supply fodder for their opponents to effectively paint them as unpatriotic during the election. That fear is probably justified. We really shouldn't blame Congress for accurately reflecting the idiotic views of their constituents.
    By the way, what is it with conservatives and the Constitution? Don't they seem a bit too enthusiastic about dickering with it? We've got the flag burning amendment, the gay marriage amendment, the balanced budget amendment, the abortion amendment, and of course, going back a hundred years, the wonderfully effective Prohibition Amendment. Other than the ill-fated Equal Rights Amendment, I can't think of any other attempts by liberals to amend the constitution in recent memory. Are their any other issues that liberals have tried to resolve through changing the Constitution or is this purely a Republican tactic?

  14. My impression was that the movement to prohibit alcohol was seen at the time mostly as progressive, not as conservative. But the categories were somewhat different then.

  15. A problem with the flag-burning amendment that no one mentions is that it would lead to people being locked up for the way they express their ideas. Its main effect wouldn't be to stop flag-burning, as it would increase it. Its main effect would be to lock up people for yet another victimless crime.

  16. Yes, Patrick. It says "to the Flag and to the Republic." That's why I find it so appalling to defend the Flag against mostly imaginary attack by defacing the document that constitutes the Republic. It's called "irony." As to "temper tantrums" I'll leave it to others to judge which of us lost his temper and his manners.
    To other commenters: I agree that it would be impossible to craft a law against desecrating the flag that didn't fall foul of the First Amendment, if the First Amendment is read, as the courts have read it, as banning any restriction on expression that isn't content-neutral. My claim is that the doctrine itself, with its inclusion of all sorts of expression as a generalization of the textual protection of "speech" and "the press," isn't actually essential to the protection of our basic freedoms. So though I'd be loath to monkey with the text of the Bill of Rights, I wouldn't be averse to a ban on specified disrespectful acts directed at the Flag, if the courts would hold still for it.

  17. Patrick: I clearly stated that pledging allegiance to "the Republic" is a rational thing to do (and I don't object to asking children to do it). But in a conjunction, both parts must stand separately. What's to stop a wording like "Under this Flag we honour as its symbol, I pledge allegiance to the Republic &c"?

  18. Mark – my apologies for noting favorably your post as it seems to have alerted Patrick R. Sullivan (aka Roland Patrick) to your blog. Who is this troll with two names (and a blog that refuses comments) except from his name (with apparently no members)? Think of Don Luskin's minny-me.

  19. For the courts, as Mark Kleiman would have them do, exclude "some sorts of expression" from First Amendment protection is a terrible idea. There is of course the slippery slope problem. But I won't rely on that because even to see a slippery slope is to allow the government to decide that some sorts of expression are more valuable than others, and the point of the First Amendment is to foreclose that. In Cohen v. California, in which the Supreme Court upheld the First Amendment right to wear a jacket that said "Fuck the draft," the Court wrote: "much linguistic expression [and, I would add, symbolic expression] serves a dual communicative function: it conveys not only ideas capable of relatively precise, detached explication, but otherwise inexpressible emotions as well. In fact, words are ofthen chosen as much for their emotive as their cognitive force." It is not for the government to decide that flag burning is not as legitimate a means of expression as, say, blogging.

  20. If this thing ever does pass, it will provide some of the most magnificent unintentional political comedy in American history when the time comes to define "flag" and "physical desecration". Will it be illegal to destroy red-white-and-blue napkins, or a copy of a Wonder Woman comic with her wearing those star-spangled bloomers? If not, then can one protest by publicly destroying those? Will it be illegal to paint a picture of a burning flag, or to wave a placard saying that the flag should be burned?

  21. Parenthetically, if you wanted a Pledge of Allegiance that was not only logically defensible but might actually be morally instructive for kids to recite, you could do so by simply changing one word in it: "I pledge allegiance to the Republic of the United States of America and to the ideals for which it stands…"

  22. First, who is it who raised 'sin of idolatry'?
    Second, anyone who doesn't realize that 'instead of' is destroyed by the actual word used ('and') isn't competent to argue in the English language.

  23. Hey, would this be the sin of idolatry:
    '"Kneeling beneath that cross on the South Side, I felt I heard God's spirit beckoning me," [he] said beneath the cross and organ at National City Christian Church. "I submitted myself to his will, and dedicated myself to discovering his truth." '
    It is against the law to burn a cross, isn't it?

  24. Holsclaw: "Really?"
    Really.
    Your example assumes there is no contradiction or ambiguity in the Constitution or its intents and that the Founders were capable of not only producing such a document, despite ample evidence from human history that this is impossible, but that in making compromises in response to political reality that contradiction and ambiguity did not seep into the constitutional text.
    The Constitution and its meaning and intent are full of ambiguity and contradiction, however, as well as omissions regarding how to deal with specific circumstances or subjects.
    It is the duty of the Courts to address such matters and there is no evidence whatsoever that there are any judges who believe they can 'pour whatever meaning they want into the Constitution' or that they believe the Constitution contains 'words that are empty vessels'.
    Rejecting a purely textual interpretation of the Constitution or an interpretation that assumes the drafters thought and wrote without flaw with regard to intent is not the same as viewing the Constitution as a list of words that are empty vessels into which any meaning can be poured.
    Textualists and originalists merely argue this as a dishonest means to attack those whose interpretative methods they disagree with – they misrepresent those methods in the same way that conservatives insist that liberal criticism of a conservative president during a time of war is treason, but conservative criticism of a liberal president during a time of war is not.
    It is a defamatory attack that falsely misstates the interpretive methods of such judges.
    So, yes, there are no such judges.
    Really.

  25. No, it's not against the law to burn a cross. Or, rather, if any states have such laws, they are clearly unconstitutional and unenforceable. This is because of the Supreme Court's decision in the flag-burning case; the Court would never discriminate among symbols. In 2003, the Supreme Court did uphold a Virginia statute that prohibited burning a cross with the intent to intimidate, but it is attempts to intimidate, not cross-burnings, that are not protected by the First Amendment.

  26. Sebastian,
    "Who ever said anything about mandatory death penalties? If it is a legal possibility directly expressed in the Constitution it is not unconstitutional. … Marshall specifically rejects the view that the death penalty would be ok under better legal procedures."
    The Fifth Amendment admits the possibility of capital punishment for undefined crimes. The Eighth Amendment more specifically bans all forms of cruel and unusual punishment. "Cruel and unusual" is not defined further. Capricious and arbitrary certainly describes how we administer the death penalty, and that fits under the "cruel and unusual" rubric.
    That is not a tortured interpretation. Under that interpretation the text is in conflict with itself. There is a destructive dilemma created: you can violate the flat ban of "cruel and unusual" punishments, or you can "violate" the admitted possibility of the death penalty.
    That's an easy choice — violate a flat prohibition, or say that something the framers considered as a possibility isn't a possibility. I'll choose to say that the possibility is unconstitutional, rather than choose to violate the prohibition.
    "And, by the way, your argument is an argument for better procedures not a wholesale rejection of the death penalty."
    Before someone is murdered in my name, the process needs to be more than 'better', it needs to be more than 'best', it needs to be perfect. All punishment is irreversible, but we can release someone who was imprisoned by a failure in the courts. Capital punishment cannot be corrected once administered. No whoopsies, I want a mulligan on that one.
    Before you accuse me of being inflammatory in using the phrase 'murdered in my name', you need to consider this. The death certificate issued after an execution cites the cause of death to be 'legal homicide' (ICD-9CM codes E97x, depending on the execution procedure.) 'Homicide' is the fancy Latin legal term for the Anglo-Saxon word 'murder.' Because the execution is carried out by the State, it has been done in the names of the citizens of the State. Unless, of course, you subscribe to some theory placing sovereignty somewhere other than the people.
    I'll consider backing the death penalty as soon as someone can demonstrate that they have a set of infallible procedures. If the probability of executing someone who is factually innocent is really and truly zero (not epsilon, not less than some epsilon bigger than zero, zero-its-own-self) then I'll back capital punishment. It would be nice if there weren't any socio-economic jokers in the deck along with the infallible process.
    Justice Marshall's opposition to the death penalty was definitely influenced by his personal history. That doesn't mean that he pulled his interpretation out of his ass.
    BC

  27. Patrick, how come you misquote people? You quoted someone here to say "sin of idolatry", when it was just "idolatry". Why?
    Are you trying to charge the conversation with religion-induced fears? In the context, idolatry was brought up by Mark as something stupid, irrational, incomprehensible by Brits – and not referring to your inner-child's fear of the Big Daddy hiding in the clouds. I have no idea why you started talking about crosses, etc.

  28. Max, try actually reading what Kleiman said. Here it is again:
    'To pledge allegiance to the Flag instead of "the Republic for which it stands" is the political equivalent of the sin of idolatry…'
    Now that we know who is misquoting, let's try parsing Kleiman's logic without using 'his own facts'. Does this make any sense:
    'To pledge allegiance to the Flag [and] "the Republic for which it stands" is the political equivalent of the sin of idolatry: confusing a symbol with its referent, to the extreme of elevating the symbol above the referent.'
    Obviously it doesn't.

  29. Er, Patrick. Is it illegal to burn a piece of paper with an addition sign or the letter "X" on it?

  30. As for defacing the flag: back during Teddy Roosevelt's gory repression of the Aguinaldo Rebellion, Mark Twain proposed a new flag with black stripes and the stars replaced by little skulls. Why did that man so hate democracy?

  31. And as for Sullivan: don't worry about him. He's a kind of ultraright June bug who occasionally bumbles into one of these sites, bangs into the light once or twice, and then flies off without having established anything of any significance.

  32. Bruce M: nice snark on the Minnesota GOP operative known as Patrick R. Sullivan (or was it Roland Patrick). He has a blog where he puts forth his incessant spin. You'll learn three things at his blog: (1) he hates me; (2) when you try to post a comment there – you can't unless you join his team; and (3) he NEVER gets a comment as if no one wants to be part of his team.

  33. "The Constitution and its meaning and intent are full of ambiguity and contradiction, however, as well as omissions regarding how to deal with specific circumstances or subjects."
    But not infinitely ambiguous. If something bans generally "cruel and unusual" but specifically talks about how capital trials are to be produced, the general rule of textual construction is that the specific rules over the general, not the reverse as you claim. If "cruel and unusual" is banned in general but capital trials are specifically allowed it follows that capital trials are not banned by the "cruel and unsual" language.
    That is how judicial interpretation works. Brennan and Marshall were not engaged in legitimate judicial interpretation when they ruled as they did.
    "Before someone is murdered in my name, the process needs to be more than 'better', it needs to be more than 'best', it needs to be perfect."
    That is nice for what you want. What does it have to do with Constitutional interpretation?
    "Are their any other issues that liberals have tried to resolve through changing the Constitution or is this purely a Republican tactic?"
    What do you mean by 'changing the Consititution'? Do you believe that Brennan and Marshall were not trying to change the Constitution when they attempted to outlaw the death penalty? You don't think Roe v. Wade was a change? Liberals try to change the Constitution all the time. They just don't bother with the amendment process.

  34. Still waiting for your reply to any of my actual arguments (or Henry's or Wimberley's), Patrick. Of course, people get used to that from you. (Also interested in seeing your replies to George Will and John Cole, both of whom regard this amendment as cretinous.)
    My own reaction to it if it's ever passed will be so much frothing fear as disgusted amusement. After all, there are a number of different things you can say by defacing a flag ("I hate America", "I hate democracy", "I hate such-and-such a policy of America" — this last being what Mark Twain was saying); and all of them could still be said in other ways (at least until the Republicans decide to make another vote grab by proposing an amendment making it illegal to say "I hate America" or "I hate democracy"). But as for the problem of DEFINING a "flag", or "physical desecration of it"… The head of the chief lobbying group for this amendment says that if it ever makes it through Congress, "it will be ratified faster than any other Amendment in American history". Maybe, maybe not; but it will definitely be repealed faster than any Amendment in American history.

  35. As a useful reminder that there are actually some conservatives out there with brains and a sense of intellectual responsibility, consider Sebastian Holsclaw. His argument that the Founders — like it or not — did NOT intend to make the death penalty unconstitutional is bulletproof: if they had, they would have said "No person shall be deprived of life", instead of saying "No person shall be deprived of life WITHOUT DUE PROCESS OF LAW." Whether you think the death penalty is horrible or not, it ain't unconstitutional. Of course, at the start, neither was slavery.

  36. I still don't buy it.
    If the death penalty is cruel and unusual (and the way it is administered in this country, it is cruel and unusual) then it contravenes the Eighth Amendment. If the framers had wanted to make capital punishment an exception to their ban on cruel and unusual punishment, then the Eighth Amendment should ban cruel and unusual punishment, except for loss of life. Or some such construction.
    Of course, it's entirely possible that for the Framers, a death penalty was neither cruel nor unusual. Societal standards evolve, and sometimes people look to see what's under slimy rocks like judicially-sanctioned murders. If you look carefully under that rock, you'll find what Brennan found, and what Marshall knew from his life's experience.
    And while we're on the topic of judicial activism and reading stuff into the Constitution that isn't there, how about Scalia's nifty little opinion that we don't need an exclusionary rule any more? I seem to recall a Fourth Amendment to the Constitution that requires the government obtain a warrant prior to searches. I guess in Scalia's eyes, the government has to get a warrant to search, except when they don't want to bother with a warrant.
    Now *that's* pulling something out of your ass.
    BC

  37. You need to look up the history of the exclusionary rule. At no point has it been considered a Constitutional rule on how to handle the warrant issue. It is at most a judicial enforcement mechanism. It is completely wrong to suggest that the Constitution mandates the exclusionary rule for all non-warrant searches.
    I happen to believe that the factual question resolves differently from how Scalia thinks it does. But it doesn't even come near to approaching the disdain that Brennan and Marshall show the Constitution in their death penalty opinions. They violate extremely basic rules of interpretation in order to get their preferred outcome.
    "Societal standards evolve, and sometimes people look to see what's under slimy rocks like judicially-sanctioned murders. If you look carefully under that rock, you'll find what Brennan found, and what Marshall knew from his life's experience."
    No. You find that. And if societal standards evolved to change explicit portions of the Constitution there is an amendment process. Once again the answer to the question "Why do conservatives seem to offer amendments to the Constitution while liberals do not?" is "Because liberals don't bother with the amendment process when they want to make the changes they desire."

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