Some Flag Day Thoughts on Flag Burning
Julian Sanchez | June 14, 2006, 2:22pm
We seem to be having yet another of our occasional, moronic flare ups of that perennial Kabuki fight, the flag burning debate, and today seems like as good a day as any to say something about it. Of course, there isn't a whole lot to say—it's a simple enough issue and the ground's well covered—but here's one thought I haven't seen floated elsewhere. Since we're talking about amending the Constitution, I sometimes think there just must be some epidemic of daily flag-burnings on every streetcorner, but as far as I can ascertain, it's actually pretty rare. Every now and then you see some 14 year old soi-disant "anarchist" in a black bandanna torch one at a protest or something, but everyone else invariably seems either bored or embarassed by such antics: As a rule, people here recognize that while maybe flag burning is considered political speech under the First Amendment, it is almost always stupid, counterproductive political speech that's not going to win you any friends.
No, burning American flags is a lot like soccer: Americans have never gotten all that into it, but it's wildly popular in much of the rest of the world. A rest of the world that, barring a third Bush term, American law does not cover. So it might be worth considering the effects of a burn ban in the places where most of the actual flag burning happens. What do people in the rest of the world think of when they see an American flag being burned? Maybe they just see opposition to American policy or military power. But maybe—if we're lucky—they also see opposition to American values: Freedom, democracy, reality television. In the wake of a constitutional amendment, though, I can guarantee what a lot of them will think instead is: "This act of political dissent would be a crime in the United States." And in the shadow of that tought, every hateful claim the people burning those flags make about the hollowness of America's commitment to the high-sounding principles it proclaims will seem a little more plausible.
anon2 | June 15, 2006, 12:04pm | #
The flag burning amendment is a shibboleth.
If it were really to be enacted, the downside wouldn't be anywhere near as bad as that of Wikard v. Filburn or McConnell v. FEC. It would be a waste of money in all three branches of government, but as a percentage of GDP it wouldn't even register. People are opposed to a flag burning amendment more because of what such an amendment stands for than the net loss associated with it being successfully passed. This includes both the net loss of money associated with legislation, enforcement and prosecution as well as the loss of the ability to burn a U.S. flag, an act that is already rare.
Sure, if a flag burning amendment is passed, a bunch of people will burn a flag in protest, but only because it's easily done and the penalty incurred initially is likely to be minimal. There's already a substance that one can burn in public to demonstrate one's opposition to encroachment of liberty and get arrested for doing so, yet few people do so, even though the illegality of marijuana has a huge negative impact on the country.
Interestingly, to me anyway, people are in favor of a flag burning amendment more because of what such an amendment stands for than the net benefit that they associate with it being passed. I have a hard time articulating their reasoning, but it's clearly about symbolism, just like opposition to the amendment.
On both sides, the message associated with the amendment is much bigger than the effect of the amendment. Although the messages are big, the effect is so small, that it's an issue that could safely be ignored, except that ignoring it would fail to show solidarity for your group, and such individualism is a major breech of social patterns.
In the meantime, it's real easy to get very animated when talking about the subject and to feel quite superior to people on the other side. Not only is there no risk of getting arrested for doing so, you're unlikely to be ostracized by your peers. Instead, you'll get high fives for being on the right side of this ostensibly important issue.
C. S. P. Schofield | June 15, 2006, 3:18pm | #
Annoyed Moose,
No, I wouldn't call myself a Liberal. I'm a Crank.
If people want to dribble paint on the Flag, stomp on the Flag, shred the Flag, I'm fine with that. I simply don't think that "Freedom of Speech" should extend to "Nonverbal Speech" that endangers the public - or, for that matter, violates common sense public health codes; no peeing on the Flag (without being arrested for public urination, or whatever the local health codes call it). That Flag burning is wonderfully photogenic, and this would hamper that, pleases me, but I think the foundation of safety concern is legit.
As for "lots of the fundie types today feel that "free expression" = "free to express things how I want them expressed and any activity of which I disapprove should be banned".", how, exactly, does that differ from the attitude of so many Campus Liberal Elitists? THEY get to say that any male is a 'potential rapist', but god help you if you disagree with them on anything.
I say that Amendments shouldn't be necessary because they shouldn't. The majesty of the Constitution is overkill in both cases. Unhappily, some kind of Amendment may well be the only way to get the judiciary under some kind of control. Judges who think they have the authority to change the meaning of the language so that laws say what THEY want the laws to say are an authentic menace. The Gays are happy now, but how happy would they be if some homophobic judge decided that laws passed to protect Gays meant something else?
The Flag Burning amendment is silly. It should be possible, even with modern courts, to arrest and fine or imprison Flag burners on the simple grounds that what they do isn't safe. If they apply for permits, give them no more and no less than the KKK gets when they try for permits for a Cross burning. If being placed on the same level as the Klux annoys the Flag burners, good.
Law mangling judges are a serious threat. Flag burners are annoying twits. Our response should be proportionate, and we should refrain form promiscuous amendments where possible.