Why are some people so against the flag protection amendment?
Congress has been trying to amend the Constitution to protect the American flag for many years now. This year, it looks like the effort might finally be successful.
I will not accuse those who oppose this amendment of being unpatriotic or anything like that. I know far too many of them to say such a thing. In fact, their zeal is based on a love for unfettered freedom of speech. This is all rooted in our First Amendment as my local paper proclaims, which has served us well for 217 years.
The argument goes something like this:
Our First Amendment free speech protection is one of the most treasured and central rights enjoyed by Americans throughout our history. Burning the flag is surely a method of constitutional speech, and this type of speech ought to be protected the same way that we allow other kinds of offensive speech by Nazis, racists, and Fred Phelps. Therefore, we cannot start down the road of chipping away at our First Amendment.
A corollary, but slightly different argument also adds the point that flag burning is not a common occurrence and hardly a national issue worth amending our constitution over.
These arguments, though superficially appealing, don't really withstand a closer analysis in my opinion.
First, contrary to what most Americans assume, current free speech protection has not been a fundamental American right for most of our history. Most people agree that the original intent of the First Amendment free speech protection was freedom from prior restraint. The First Amendment was not presumed to protect people from the consequences of their words. To be fair, there were some who argued for a more expansive understanding of free speech even in the founding era, but even they would be shocked at the types and scope of speech we allow today.
Our current free speech protections are pretty much entirely judicially created protections based upon the political philosophies of the 9 Justices of the Supreme Court. The first real protection of free speech didn't start until the early 20th Century, and current wide-ranging protection was not created by the Court until the 1960s. So while some argue that we simply cannot amend the Bill of Rights and thereby trivialize it, history shows that the First Amendment along with many of the others has been amended multiple times by a Court that didn't particularly like the original meaning of the text.
Now don't get me wrong. I generally favor liberal protection for speech. But the idea that free speech has a long and cherished role throughout American history is just not true, at least as currently understood. (As an aside, 1st Amendment free speech protection is one of those issues that constitutional originalists tend to ignore. This is an area that originalists need to incorporate more into their analysis and thinking about precedent and original interpretation of the Constitution.)
Second, though I'll just mention it here, there is at least an argument accepted by some members of the Court that flag burning is not constitutional speech. For not every politically connected action is or should be constitutionally protected (like burning crosses in the yards of civil rights pioneers with the intent to intimidate or as some believe, giving unlimited monetary contributions to political candidates of your choice).
Third, the argument above seems to fall into the slippery slope fallacy. That is, if we set aside some speech that has been protected and no longer protect it, we will begin to lose the whole First Amendment. I think this just plain wrong. My sense is that Americans of all stripes are more committed to the ideal of free political speech than we ever have been. Sure we have debates over campaign finance reform and university speech codes, but we all generally agree on the value of free speech. And current debates are nothing compared to the limitations on speech throughout American history. I would ask this--do we really think that an amendment prohibiting anti-war speech is soon to be proposed, passed by Congress, and ratified by the states? I think not.
Finally, the argument against the amendment suggests that this small, small problem of flag burning is hardly worth amending our Constitution over. I find this to be a curious argument, especially from originalists. Constitutional originalists ought to be all for frequent amendment of the Constitution. If we don't like a Court decision, we should overturn it with an amendment. It doesn't or shouldn't matter how important or significant the issue is. In fact, we have a lot of relatively unimportant things in our Constitution.
The Constitution is not a sacred or Scriptural document that we should not mess with. It is a supermajoritarian legal document that sets out the basic framework and values we agree upon as a people in large supermajorities. Constitutions have no cosmic or metaphysical essence. There are good Constitutions and bad Constitutions and everything in between.
Vast majorities of Americans believe strongly in free speech, and find nothing un-American or dangerous about saying that burning the very symbol of our freedom goes too far. Since the Court thought differently, let's display our commitment to country and freedom by amending the Constitution to say so. This is not a radical step and does not fundamentally alter our value of freedom of speech at all. I count myself among those who do not feel passionately about the amendment because flag burning is such a small problem, but I have no problem supporting the flag protection amendment.
I will not accuse those who oppose this amendment of being unpatriotic or anything like that. I know far too many of them to say such a thing. In fact, their zeal is based on a love for unfettered freedom of speech. This is all rooted in our First Amendment as my local paper proclaims, which has served us well for 217 years.
The argument goes something like this:
Our First Amendment free speech protection is one of the most treasured and central rights enjoyed by Americans throughout our history. Burning the flag is surely a method of constitutional speech, and this type of speech ought to be protected the same way that we allow other kinds of offensive speech by Nazis, racists, and Fred Phelps. Therefore, we cannot start down the road of chipping away at our First Amendment.
A corollary, but slightly different argument also adds the point that flag burning is not a common occurrence and hardly a national issue worth amending our constitution over.
These arguments, though superficially appealing, don't really withstand a closer analysis in my opinion.
First, contrary to what most Americans assume, current free speech protection has not been a fundamental American right for most of our history. Most people agree that the original intent of the First Amendment free speech protection was freedom from prior restraint. The First Amendment was not presumed to protect people from the consequences of their words. To be fair, there were some who argued for a more expansive understanding of free speech even in the founding era, but even they would be shocked at the types and scope of speech we allow today.
Our current free speech protections are pretty much entirely judicially created protections based upon the political philosophies of the 9 Justices of the Supreme Court. The first real protection of free speech didn't start until the early 20th Century, and current wide-ranging protection was not created by the Court until the 1960s. So while some argue that we simply cannot amend the Bill of Rights and thereby trivialize it, history shows that the First Amendment along with many of the others has been amended multiple times by a Court that didn't particularly like the original meaning of the text.
Now don't get me wrong. I generally favor liberal protection for speech. But the idea that free speech has a long and cherished role throughout American history is just not true, at least as currently understood. (As an aside, 1st Amendment free speech protection is one of those issues that constitutional originalists tend to ignore. This is an area that originalists need to incorporate more into their analysis and thinking about precedent and original interpretation of the Constitution.)
Second, though I'll just mention it here, there is at least an argument accepted by some members of the Court that flag burning is not constitutional speech. For not every politically connected action is or should be constitutionally protected (like burning crosses in the yards of civil rights pioneers with the intent to intimidate or as some believe, giving unlimited monetary contributions to political candidates of your choice).
Third, the argument above seems to fall into the slippery slope fallacy. That is, if we set aside some speech that has been protected and no longer protect it, we will begin to lose the whole First Amendment. I think this just plain wrong. My sense is that Americans of all stripes are more committed to the ideal of free political speech than we ever have been. Sure we have debates over campaign finance reform and university speech codes, but we all generally agree on the value of free speech. And current debates are nothing compared to the limitations on speech throughout American history. I would ask this--do we really think that an amendment prohibiting anti-war speech is soon to be proposed, passed by Congress, and ratified by the states? I think not.
Finally, the argument against the amendment suggests that this small, small problem of flag burning is hardly worth amending our Constitution over. I find this to be a curious argument, especially from originalists. Constitutional originalists ought to be all for frequent amendment of the Constitution. If we don't like a Court decision, we should overturn it with an amendment. It doesn't or shouldn't matter how important or significant the issue is. In fact, we have a lot of relatively unimportant things in our Constitution.
The Constitution is not a sacred or Scriptural document that we should not mess with. It is a supermajoritarian legal document that sets out the basic framework and values we agree upon as a people in large supermajorities. Constitutions have no cosmic or metaphysical essence. There are good Constitutions and bad Constitutions and everything in between.
Vast majorities of Americans believe strongly in free speech, and find nothing un-American or dangerous about saying that burning the very symbol of our freedom goes too far. Since the Court thought differently, let's display our commitment to country and freedom by amending the Constitution to say so. This is not a radical step and does not fundamentally alter our value of freedom of speech at all. I count myself among those who do not feel passionately about the amendment because flag burning is such a small problem, but I have no problem supporting the flag protection amendment.
posted by Anonymous @ 2:53 PM
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