Amazing how a Supreme Court opinion, 5-4 at that, from 1989, is being treated by some conservatives as if it were Moses descending from Sinai with the tablets of the Ten Commandments, in attacking Trump’s executive order banning some forms of flag burning. Go here to read the text of the executive order. (Executive orders are not laws, and should never be confused with laws, but that is a subject for another rant.)
Of course the idea that those who burn the flag should be subject to severe criminal penalties would have been non-controversial throughout the vast majority of the history of the Republic. It was not until Texas v. Johnson (1989), in a 5-4 decision that crossed ideological lines, that the Supreme Court found unconstitutional all anti-flag desecration laws. The decision was a particularly silly example of a trend in the Court of confusing conduct and speech, and thus finding an action worthy of first amendment protection.
The lunacy of this, is that almost all conduct carries a speech component. The Court picks and chooses the conduct it wishes to enshroud in constitutional protection. Walking nude in public for example can be a form of protest. Indeed, a group of Quaker women in colonial Boston engaged in a naked promenade to protest Puritan persecution of the Society of Friends. Yet, the Supreme Court has declined to strike down laws that ban public nudity. The Court thus designates itself the arbiter of what conduct should have legal protection as speech under the First Amendment. I prefer that such a role be granted to legislatures. Legislators can be voted out. Supreme Court justices are frequently with us for generations as they grow old handing down the law to we lesser breeds. Besides, it is easy to change the law, and hard to amend the Constitution, unless one happens to be one of our nine Platonic Guardians. The Supreme Court, in effect, swiftly amends the Constitution each year by majority vote of the Court and the rest of us are left to deal with freedoms often infringed as a result, especially our most important freedom: the right to rule ourselves.
Can’t say I’m a fan of how much the makeup of the Supreme Court (and the judiciary in general) always seems to loom over all of our elections – another sign that branch has gained a lot more significance than it was ever intended.
And I can still recite and sing the entirety of the Amendment Song sketch from that Simpsons episode, despite it being well over 30 years old, including Bart’s hilariously dark line about Gen X: “we need another Vietnam to thin out *their* ranks a little!”
Never bought into the notion that there is such a thing as a ‘speech act’ which merited legal protection. (If there were, I’d like to have torched Mr. Justice Brennan’s chambers). A municipal court judge in my home town let off a claque of nudists ca. 1988 with the excuse that their topless performance for the media was a ‘speech act’.
My free speech is flying the Betsy Ross flag from the front porch. Make everything old new again.
Don is spot on about the Supreme Court amending the Constitution in a usurpation of the Constitutional process.
Amendment was meant to be hard. That way, the Constitution would be a cage for the federal government. Instead, the Court often twists it into an iron bar used to beat the people.
I especially like this :
“the rest of us are left to deal with freedoms often infringed as a result, especially our most important freedom: the right to rule ourselves.”
If liberals can burn the American flag with impunity, then why can’t I fly the Confederate flag with impunity?
Or incinerate certain multicolor flags? Which I’m sure would land you with a hate speech conviction.
I love the Bruised Optimist’s comment: burn all those sodomite flags of iniquity and depravity. With a day police will arrest you for hate speech!
“Or incinerate certain multicolor flags? Which I’m sure would land you with a hate speech conviction.”
I’m betting that they would in our little blue city by the bay.
Bad legal precedent will break every law.
The American Flag belongs to every citizen, dead or alive in joint and common tenancy. Denying a portion of the population to satisfy another portion is not equal Justice for all, the only thing the Supreme Court is endorsed to do.
The Supreme Court has failed to read our Founding Principles or know that Public Law 108-447 Section 111 requires that the Constitution be taught in every public school or have Federal funds withdrawn.
I do not think we accomplish much good by forbidding burning a flag. If someone has that much of a problem, they’ll find a way to express it, one way or another. Better they should burn a flag than do something worse.
If someone is going to do something worse than burn the flag, there is always room in our jails to accomodate them. I would have every flag burner prosecuted, but that is not my main point, which is that legislatures, not courts, should make the call as to whether flag burning is a criminal offense.
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