The U. S. Senate has narrowly defeated a flag-burning amendment on a vote of 66-34:
WASHINGTON – A constitutional amendment to ban flag desecration died in a Senate cliffhanger Tuesday, a single vote short of the support needed to send it to the states for ratification and four months before voters elect a new Congress.
The 66-34 tally in favor of the amendment was one less than the two-thirds required. The House surpassed that threshold last year, 286-130.
The proposed amendment, sponsored by Sen. Orrin Hatch, R-Utah, read: “The Congress shall have power to prohibit the physical desecration of the flag of the United States.”
It represented Congress’ response to Supreme Court rulings in 1989 and 1990 that burning and other desecrations of the flag are protected as free speech by the First Amendment to the Constitution.
A two-thirds vote is required for constitutional amendments.
Analysts are pointing out the lack of proportion that debating this issue at this time suggests:
As the Senate’s flag-desecration debate heated up yesterday and the sparks began to fly — but before the smoke cleared — the amendment’s backers were asked a burning question: Is this the most important issue facing the nation?
The senators rushed to extinguish the very thought.
followed by a list of quotes from senators who supported the amendment which suggest that they understood very well the frivolousness of the debate.
Blog-friend Dan Berczik of Bloggledygook has a fine rant in a similar vein.
Most of the blawgers including Ann Althouse and Glenn Reynolds have expressed a general air of disgust or disdain for the entire affair.
I think that my own reaction is less one of outrage than amusement. It reminds me nothing so much as that line from the movie, The Wizard of Oz:
“Once a year they take their fortitude out of mothballs and parade it down the main street of the city.â€
Most commentators have noted the aspect of political posturing in this incident or, as cited above, the lack of proportion. But I haven’t seen much in the way of explanation of how we came to this pass.
An extremely broad swath of conduct has been construed by the courts as speech.
Conduct is speech. Money is speech. The only thing that isn’t speech, apparently, is speech.
The Founders very clearly distinguished between speech and other forms of conduct. Had they not there would have been no need for guarantees for freedom of the press or religion or assembly. It seems to me that all could comfortably have fit under the rubric of speech as it’s presently construed.
I know that the Supreme Court has not upheld a suit founded on “fighting words†since the doctrine was first enunciated in Chaplinsky v. New Hampshire and, specifically, a “fighting words†claim was explicitly rejected in the defense of a flag-desecration ordinance in Street v. New York which, it seems to me, limits “fighting words†to cases of threats of violence rather than speech which provokes a reaction of violence in those offended.
This post is not a protest—it’s a bleg. Could someone who’s better informed exposit a little on why conduct is speech (other than that it’s expedient) and where the limits of conduct as speech are?
Dave,
That quote from The Wizard of Oz encapsulates the debate perfectly. Bravo.
I also would welcome such an explanation as you request, but this current wave of initiatives strikes me as another Caligula waging war on papyrus.
While I cannot answer the question of how an act (burning a flag) is protected as speech, I’d note that the most prominent belief-system that legislates punishment for damage or insult to a physical symbol is Islam (e.g. the Koran). And we know the kinds of problems that followed after that with the Koran flushing rumors. Do we really want to copy such a barbaric rule for our own country?
fuck everyone in the flag burning who thinks its cool