Proposed Amendment #5: Flag Desecration Amendment

The Supreme Court issued one of its landmark decisions in 1989, Texas v. Johnson, in which the burning of the American flag was protected as free speech under the First Amendment of the U.S. Constitution. The Congress responded by passing the Flag Protection Act, and the Supreme Court followed up by declaring the new congressional act unconstitutional and reaffirming the right to burn the flag in U.S. v. Eichman in 1990.

Since these decisions, the issue of flag burning has been an open soar festering on the American psyche. We are conflicted in that we want to respect the rights of minorities and individuals, especially rights as fundamental as free speech and the ability to protest governmental policy and action. Yet we also hate this particular form of speech because it cuts to the very symbolism of who we are as a nation and a people, a legacy of which we are, in general, very proud.

Congress responded throughout the 1990's by attempting to pass a constitutional amendment that would outlaw desecration of the flag. While the overwhelming majority of Americans and members of Congress supported the proposed amendment, a passionate minority spoke out and campaigned against the flag burning amendment. It was defeated or killed several times in the Senate after passing in the House of Representatives.

There are several problems with the proposed amendment considered by the Congress, the chief of which is how to craft a legal definition of a flag that wouldn't turn U.S. Attorneys into petty prosecutors and make us the laughing stock of the world. Would a T-shirt with an American flag on it be covered by the proposed amendment? If I threw such a T-shirt away, would that be considered a desecration of the U.S. flag? What if I had a bumper sticker of the flag on my car, and the sticker got scratched? Would I then be subject to prosecution?

While these hypotheticals might seem silly or far-fetched, they are not outside the realm of imagination, so people in power could twist the provisions of such an amendment if they wished to make political rivals go away. Or at the very least, to make life inconvenient for them. So the trick might be to craft constitutional wording that would express the importance of the flag as a symbol of America and her ideals while confining what might be considered a flag for the purposes of the amendment to a few, well-defined set of objects, such as flags that have actually flown over U.S. government installations (e.g., embassies, forts, legislative chambers, courthouses, etc.) or used in U.S. service (e.g., in military action, handed over to U.S. veterans or families, etc.). This last hedge would protect the provisions of the amendment from being used for blatantly political purposes while protecting the right of an individual or group to burn other representations of the U.S. flag in protest (or other actual U.S. flags that the burner owned or made himself). In short, the American people would be able to enshrine the importance of our flag as a symbol of the United States in a way that does not abridge individual's First Amendment rights.

With these purposes in mind, we would propose the following wording for a Flag Desecration Amendment to the U.S. Constitution:

Congress shall have the power to prohibit the physical desecration of any flag of the United States that has flown in an official capacity over United States property.

Secular Europe's Merits

Craig forward an article by Dennis Prager discussing the merits of Europe's embrace of Secularism. After reading the piece, I felt that the author made some assumptions with which I disagree. The columnist that was interviewed, Roger Cohen, might share some of the blame for using a poor analogy for Communism and Fascism. I didn't get to read Mr. Cohen's original article so I'll limit myself to examining Mr. Prager's response.

Using the total amount of people abused or killed by a regime as a metric makes as much sense as keeping the top-grossing movies list by the amount of money brought in using current dollars - it ignores inflationary effects. Just as ticket prices go up over time, so does the total population of Earth. Does that make Communism or Fascism off the hook, not a chance. It just means it's an apples-to-oranges comparison.

I'd also like to take issue with the contention that labeling communism and Nazism as religion avoids the issue. Those movements may not have been deity-centered but they still had common values and followers. I almost want to think that Mr. Prager didn't want the atrocities of those two regimes to be considered a religion because he doesn't want religion to be tainted by association. If anything, I'd say that considering them as religions brings some of humanities dirty little secrets out into the light of examination. Unless you accept that God spoke to every one of the Christians sent to the Crusades and told them to retake the holy land, it becomes easy to accept that all or the vast majority of all violence in history associated with a religion was actually motivated by a more human desire (politically, economic, or otherwise) and religion was the guise used to justify it.

In using G.K. Chesterton's quote "When people stop believing in God, they don't believe in nothing -- they believe in anything." might imply that only the godless propagate violence and that communism/Nazism are not religions. Is Mr. Prager trying to say that a Christian state has never slaughtered, tortured or ensalved people?

At the heart of the matter is that human nature has a dark-side full of greed, averice, lust, and hate. This is true regardless of what belief system controls the halls of government. Chesterton's quote is a statement of fact about human nature, not a glorification of religion. There are plenty of people who will believe 'anything', in Chesterton's terms, about 'God'. I've known people who believed that drinking wine was a sin; when it pointed out that Jesus turned water into wine, the response was "Brother (x) taught us differently!" It is not an indictment of religion that humans want to believe in something just as calling communism or Nazism religions does not make them guilty by association.

I'll put any further reply to this article in a new post, this one has already become longer than I intended.

The meaning of "person"

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
--Fifth Amendment to the U.S. Constitution

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
--Section 1, Fourtheenth Amendment to the U.S. Constitution

I ran across this piece on Constitutional views of a person a couple of weeks ago. The article seems to unduly ramble in an attempt to address all possible arguments against abortion (e.g., social, religious, moral, and constitutional) and, in the process, does a very poor job of building a coherent narrative. Most of the points raised merely build strawmen to knock down or miss the point entirely, but the constitutional argument that the author makes for legal abortions is worthy of consideration. The kernel of the article argues that unborn babies cannot be considered "persons" in the constitutional sense of the word, since "person" had a specific meaning when the Fifth and Fourteenth Amendments were passed:

"Personhood" is a constitutional issue because the Constitution associates rights with "persons", as it would have to do. Not with "human life". For purpose of law, a "person" is a bundle of competences, including the competence to have interests and assert them as judicial questions in a court of law.

At the time the Constitution was ratified, the beginning of personhood was conventionally defined by birth, not conception, and the end by the cessation of signs of life, such as a heartbeat. That was done, in large part, because those were the ways that the bundle of competences could be ascertained, as a practical matter. Today medical science makes the points of beginning and ending less definite, but we are bound by the definition at the time of ratification of all legal terms in the Constitution, because if we allow subsequent opinions about meaning to be the basis for legal decision-making, there is no longer a "law" that can constrain government. To understand this problem, just consider that what the slave states were doing to maintain slavery was to redefine personhood to exclude blacks. They expressed it as a redefinition of "citizenship", ignoring that constitutional rights are attached to persons and not citizens, except for rights like the right to vote and hold public office. To change the definition of a constitutional term we have to formally amend the Constitution.

The author applies a strict textualist interpretation to the constitutional meaning of "person" and reaches the same conclusion about the constitutional meaning of "person" as Supreme Court Justice Antonin Scalia has reached. However, Justice Scalia goes on to say that neither does the Constitution prohibit protection of fetuses by the enactment of legislation:

The last sentence of section one of the Fourteenth Amendment does indeed say that no state shall “deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” The word “person” in these provisions could conceivably be meant to include fetuses. That the Fourteenth Amendment does not employ the word in that unusual sense is well enough established by the very next sentence—the first sentence of section two—which reads: “Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed.” No one has ever thought that pregnant women must be counted (at least) twice. Philosophers, I suppose, can disregard this affirmation of ordinary meaning, but not judges who pay attention to text. Fetuses may well deserve the same protection against destruction as other human beings; and natural law may well give it to them; but the positive law adopted by the American people and entrusted to the enforcement of their courts does not—unless and until legislation to that effect is adopted. I believe, of course, that such legislation is entirely permissible, since the argument that the Constitution forbids protection has even less to be said for it than the argument that the Constitution confers it.
--Reference: http://www.firstthings.com/article.php3?id_article=81

Live by the textualist sword. Die by the textualist sword.

To waterboard or not to waterboard

The on-going debate Americans are having over whether waterboarding is torture is well-intentioned, but misguided. By any definition of the word, waterboarding is torture, so this reluctance on the part of the Administration to define it as such makes Bill Clinton's confusion over the meaning of "is" look sophisticated. In addition, Congress should be clear and pass specific rules that govern interrogations of people in U.S. custody, as the Constitution calls for in Article I, Section 8 (where Congress is delegated the power to "make Rules concerning Captures on Land and Water").

Nevertheless, I am conflicted by this. I think the two cases in which we believe the CIA employed waterboarding (on al-Qaeda member Abu Zubaydah and Khalid Sheik Mohammed) were more than justified. Waterboarding can never be condoned as a matter of policy or law, but in the limited context of our war against al-Qaeda, the actions of the CIA were justified. Rather than debating what the meaning of "torture" is and condoning the CIA destruction of evidence, the president should immediately pardon any CIA officers who were involved in the waterboarding of any al-Qaeda members. That would be more than a fair use of his powers as Commander-in-Chief.