Don't Eat the Menu

Last night, I got the following comment from Joe White concerning my opinion on the proposed Constitutional amendment to protect the flag:

You miss the point. The ammendment is about giving congress the right to decide whether or not to ban flag burning. The Supreme Court over-stepped their bounds when they handed down their decision in '89 and congress simply wants to correct the mistake. Congress should be making the laws, not the courts. This is the constitutional, correct thing to do. I seriously doubt that flag-burning will be banned. Besides, if it is, we are only talking about a fine for desecrating the flag. This whole thing is not about banning flag burning. It's about restoring congress's constitutional duty.

Newton's Third Law applies to politics as well as science: For every opinion, there is an equal and opposite criticism. As it should be.

Several years ago, my friend Wendy Kay gave me perhaps the best advice I've ever received: "I don't have to attend every argument I'm invited to." So, in the spirit of explanation rather than argument, let me address this comment and point out where I disagree with his assessment.

The ammendment is about giving congress the right to decide whether or not to ban flag burning.
This point is well made. Strictly speaking, the amendment itself does not grant any protection to the flag, it just gives Congress the right to do so. And who knows? By the time this amendment is ratified, if ever, we may have a more liberal Congress in place that will laugh the idea right out of Washington. You never know.

[C]ongress simply wants to correct the mistake.
It's no surprise that the Supreme Court sometimes makes controversial, unpopular, baffling, and even potentially disastrous decisions. (See: Domain, Eminent.) But I'm not convinced that the 1989 decision was one of them. If there were legal precedents in existence that would have made that decision a 'mistake', I'm interested in knowing what they are. I hope that the use of the word 'mistake' in this context is not just another way of saying "a decision with which I personally disagree" - or worse, "a decision with which my political party disagrees".

The Supreme Court over-stepped their bounds when they handed down their decision in '89....Congress should be making the laws, not the courts.
It is true that Congress should make the laws, not the courts. This is the way the Constitution spells things out. But the duty of the Supreme Court is to determine whether laws made by the Congress are in harmony with the supreme law of the land, the Constitution. The 1989 decision did not 'make a law' legalizing the burning of flags; it simply affirmed that such a right already existed under the provisions of the First Amendment. So in this case, I don't think the Supreme Court overstepped their bounds at all.

I seriously doubt that flag-burning will be banned.
I hope that you're right. But why take the chance?

The problem I have with this proposed amendment is the precedent it sets. If such an amendment is ultimately ratified, it will subtly weaken and devalue the First Amendment. It will say, in effect: "Freedom of expression is protected by the law - unless it involves the United States flag." I see this as the beginning of a slippery slope. It could, at least in theory, lead to things like: "Freedom of worship is protected by the law - unless you belong to an unpopular church." Of course, that's highly unlikely. This is America, and such a thing could never happen here.

Oh, wait. It already did. (See: Carthage, Illinois; Boggs, Lilburn W.; Extermination Order; Mormon migration; et. al.)

[W]e are only talking about a fine for desecrating the flag.
I don't care. I don't care if it's 'only' a fine (as opposed to what, jail time?), or if the fine is 'only' a dollar. This is the United States of America, and people here should not be fined for expressing their opinions - even if they are unpopular, even if they involve defacing a flag. Didn't our ancestors leave their former countries to get away from that sort of treatment?

Where this issue is concerned, I am reminded of the teachings of Mormon leader Joseph Smith: "We believe....that the civil magistrate should restrain crime, but never control conscience; should punish guilt, but never suppress the freedom of the soul." (Doctrine and Covenants 134:4)

Symbols play an important role in our lives. They help us to wrap our heads around big, important concepts. Symbology abounds in art, science, literature, scripture (for those so inclined), and even politics. But a symbol is not the same as what it represents. The symbol '$' represents money, as we all know. Any kid on the street can tell you that. But '$' is not actually money.

It is critical that we do not mistake a symbol for what it represents. In other words, don't eat the menu.

The American flag is the symbol of a great nation. It symbolizes freedoms and liberties and opportunities unparalleled in world history. I see the flag, it reminds me of the liberty and the prosperity that I enjoy. I walk a little taller when I see it, and I get a little angry when I see it abused.

But grand as it is, and as inspiring as it is to see it, the flag is only a symbol. It is not the flag itself that needs to be protected; it is the liberty represented by that flag that we should seek to protect. Even if the flag itself pays some of the price for that liberty.

So no, as Joe points out, This whole thing is not about banning flag burning. But neither do I think that It's about restoring congress's constitutional duty. Congress' duty is to make laws, and they do it just fine. For my money, Congress makes more laws annually than any three developed countries are ever likely to need. To me, this whole issue is about preserving the freedoms that are guaranteed by the supreme law of our nation, the Constitution. We may not like the way some people choose to exercise that freedom, but as long as they are not interfering with the rights of others to exercise their freedoms, there should be no law prohibiting what they do.

Even if it's burning a flag.