Again With the Flag Burning Amendment

"The Congress shall have the power to prohibit the physical desecration of the flag of the United States" - proposed consitutional amendment.

In Senator Dianne Feinstein's statement in support of this proposed amendment, she says,

"I have given this a lot of thought for a long time. I believe what we have before us is language that is essentially content neutral. It is on conduct -- not speech."

How would we describe a statement like that? It's a dodge? It's nonsense? It's horseshit? Yeah, I think that last one nails it.

Technically, she's right, of course. That language is content neutral, but that's because there's no indication in the language of the proposed amendment that the Congress actually will prohibit the physical desecration of the flag, even less so how such desecration of the flag will be defined. But you know that the Congress will pass such a law and that that law will not be content neutral. I myself take offense at people fashioning clothing out of the design of the flag. I believe that trivializes our nation's symbol. Do I want to see such behavior outlawed, though? Of course not. And frankly, I don't think there's any risk that the Congress would pass a law that would do so. We know that the type of law the Congress would pass would be one that would outlaw burning the flag or dragging it through the street. It would be a law that would forbid using the US flag to make a political statement that expressed disapproval of US actions or policy. And Senator Feinstein knows this, too. And yet she says the amendment is content neutral.

Feinstein says,

"The freedom of speech enshrined in the First Amendment is a cornerstone of our great nation.

However, there is no idea or thought expressed by the burning of the American flag that cannot be expressed equally well in another manner. While I might disagree with those who protest, I defend their right to do so.

Protecting the flag will not prevent anyone from expressing his or her point of view, regardless of what that point of view may be."

How can an educated woman, a US Senator no less, be so obtuse as to not recognize that once the government starts restricting expression because the message could be "expressed equally well in another manner" that the gates have been opened for the government to decide how, where, and when we may express ourselves? Furthermore, it's because desecrating the flag creates such a visceral effect that other avenues of expression are not its equal. I don't happen to believe that flag desecration is a particularly eloquent way of expressing one's self; the message is often unclear, but you can't match it for its emotional impact.

Feinstein argues that the Constitution is a living document, one that has been amended 27 times since its creation. Again, though, she is being at best disingenous. We all know from 7th grade civics that the constitution would not have been passed without the Bill of Rights. Of the remaining 17 amendments, the most spectacular failure among them was the 18th, establishing prohibition. What distinguishes that amendment from the others, aside from it being the only one since repealed, was that while the other amendments largely busied themselves with curtailing the power of the government, the 18th curtailed the rights of Americans. So it will be with this amendment and the laws it spawns if passed. That's a road we best not go down. The small comfort fearful people like Feinstein will derive by going to sleep knowing no flags will be burning is vastly offset by the damage done to the concept of freedom as established by our Constitution and traditions.

Earlier thoughts on this topic.