Flag burning

[MODU]

Both Senators in Favor
Both Senators Opposed
Senators Split

Hopefully we'll see more blue on that map next time around.

[MODU]

Hopefully we'll see more blue on that map next time around.

Please present an argument explaining why the flag protection amendment is both necessary and a fundamentally good idea.

We have multiple threads on that already.  Feel free to check out the Individual Politics forum and the Political Debate forum.

[MODU]

*sigh*  Fine, we'll do it again.  Your post asked two questions: the technical reason why we need the amendment, and a personal reason.  Here you go.

Why is it necessary (technical reason for why we need the amendment):  The Supreme court (in a 5-4 decision) ruled that burning the flag is free speech.  (The fact that this is a flawed ruling has been debated to death so we'll just go on.)  In the attempt to correct this flawed ruling, Congress did their job by passing the Flag Protection Act in 1989, but was overturned in 1990 by the Supreme Court.  In order to re-establish our right to protect the flag, the only legal step left is to pass an amendment empowering Congress the power to re-establish the our laws regarding flag protection.  Regular legislation will not pass the Supreme Court (which is why the anti-amendment crowd keeps asking for legislation since they know it won't go anywhere). 

A good idea (personal reason why we need the amendment):  It's a good idea since national flags represent the sovereignty of nations.  When foreign leaders visit another nation on official business, their flags are displayed side by side with the host nations.  No other image or symbol is displayed since the flag is the instantly recognized by the viewing public as a symbol of the citizens of the nation being represented by their leader.  Now while our government might not use the power provided under the amendment to protect all nations flags (I wish they would), they will use it to preserve the symbol which identifies our great nation as well as our caring and welcoming citizens.

[MODU]

The Supreme court (in a 5-4 decision) ruled that burning the flag is free speech.  (The fact that this is a flawed ruling has been debated to death so we'll just go on.)  In the attempt to correct this flawed ruling, Congress did their job by passing the Flag Protection Act in 1989, but was overturned in 1990 by the Supreme Court.  In order to re-establish our right to protect the flag, the only legal step left is to pass an amendment empowering Congress the power to re-establish the our laws regarding flag protection.  Regular legislation will not pass the Supreme Court (which is why the anti-amendment crowd keeps asking for legislation since they know it won't go anywhere).

This explains why you believe the amendment to be necessary, but not why Congress should have the power to prohibit flag burning in the first place.

No, it explains why we've come to the amendment process.  As per your question, you asked "why the flag protection amendment is ... necessary."  It wouldn't have been necessary if "expression" wasn't loosely defined in this case as protected speech.  They say that the willful destruction of personal property (in this case the flag) is protected as political dissent and expression, so the person cannot be fined or charged.  Using that mindset, I should be able to park my car in the middle of the street, torch it, and claim that I am protesting against the government for not cutting us off of foreign oil.  However, I would end up in jail, or at least fined for my action, so that argument by the five justices already is a bit weak.  But even getting more generic, we already have laws which "infringe" upon the first amendment (as people claim this amendment would do), in regards to hate speech, causing riots, instilling panic, etc.  All of these forms of speech (which actually is "speech" and not "expression") are punishable, which flies in the face of people who rush to embrace the first amendment as being a blanket right.  So no, the our right of freedom of speech isn't going to be stripped away from us by passing this amendment, but rather correct a perversion of it while reinstalling our right to protect the flag, which was the actual right stripped away from us.

[MODU]

Using that mindset, I should be able to park my car in the middle of the street, torch it, and claim that I am protesting against the government for not cutting us off of foreign oil.

That is a completely separate issue.  Burning a car in the middle of the road isn't a free speech issue, it's a public safety issue.  Obviously a torched car in the middle of a road has the potential to harm others.  Now, if you want to ban flag burning based upon this logic, then you should feel that burning any piece of cloth should be illegal, as it poses the same safety to hazard to anybody as would burning a flag.

Which is why I phrased the example that way.  The argument doesn't hold up.  I can claim safety reasons that the dyes used in making a cotton flag could give off harmful gases, more so if it is a polyester flag.  In fact, I believe most cities and states have laws against carrying items such as torches or any other open flame (outside of matches/lighters) in public.  So again, we have more double standards regarding flag burning compared to other acts of destruction via flame in public.

[MODU]

So would you support a hypothetical amendment to prohibit the desecration of the Soviet flag?  The Nazi flag?  That's the only way your argument is logically consistent, and even if it is, it isn't a speech issue but rather a safety issue.

As I said before (even in this thread), I think all soveriegn nation flags should be protected.  The soviet union and nazi germany no longer exist, so no, their flags would not be protected (though there is no reason why anyone in the US should be burning their flags anyway).

[MODU]

But they still would release harmful chemicals into the air, which was part of your justification for prohibiting the burning of the US flag.

No, that was not part of my justification.  I was using it as an argument based off of your example.

So North Korea's and Iran's should be protected? You think someone burning a Sudanese flag to protest Darfur should be arrested?

Yes and Yes.  All three nations are sovereign.

But constitutionally altering the first amendment is not a good idea at all in my opinion.

The first amendment isn't being altered.

[MODU]

Flag burning clearly is symbolic speech. 

So is cross burning.

If it wasn't, an amendment would not be necessary; a law would suffice.

My feeling on it from a legal standpoint is simply that we should abide by the Supreme Court's interpretation of the first amendment and not override their judgement by an amendment; amendments should be reserved for areas in which we want to increase or decrease the overall power of government, not simply due to a disagreement over interpretation.

If enough justices are appointed to overturn that decision, so be it; I would not support a constitutional amendment to specifically protect the right to burn the flag. Considering it was only 5-4, and Thomas, Alito, and Roberts have joined the Court since then, there may be a decent chance of that happening now.

The purpose of an amendment is to override the Supreme Court.  That is why the provision is put in there by the Constitution.  As far as it not changing the first amendment, it simply isn't.  What it is doing is voiding out a faulty decision by a split court which removed one of our rights.  Twice legislation has been tried and overturned by the Supreme Court based solely off of the faulty ruling, so in order to re-establish the right, an amendment is being submitted which restores the rights of the people and the states.  Much will be said to when Kelo legislation comes up and gets knocked down by the Supreme court.  Their next course of action would be an amendment, since citizens can't just sit around and wait for Justices to die off and hope that a new one is appointed which will overturn the faulty ruling a few decades later.

So North Korea's and Iran's should be protected? You think someone burning a Sudanese flag to protest Darfur should be arrested?

Yes and Yes.  All three nations are sovereign.

So? That doesn't mean anyone is under any obligation to respect them, nor shoud anyone, considering their horrendous policies.

Not fully understanding what you are asking, but I assume you are saying like "Everyone is under the obligation to respect these countries in question, even though they have horrendous policies?"  The answer is yes.  You respect the country, since the country is more than just their leader.  You can protest the policies and their leaders, but their flag is more . . . it's the symbol of the citizens of that nation, and they are the innocent bystanders caught in the game of international politics.  People need to learn where to put the blame.  In discussions, you blame Bush for his policies but not all American citizens, right?  The same holds true when you discuss/protest international issues.

(Ok, I got to stop responding for now and get back to work.  Someone else can pick it up from here.)

[MODU]

Am I correct that this amendment already passed the House and that one more Yea vote would've sent this to the states?

If so, I oughta mail personal thank yous to Bennett and McConnell, and scathing denouncements to Feinstein and the other Dems (REID!) who've broken my heart.

You are correct. This had passed the House, and almost certainly would have been ratified by at least 38 states. Essentially it was one vote in the Senate from becoming a part of the Constitution.

All 50 states have submitted letters of request to Congress for the Flag Protection Amendment.  It would be ratified easily.

[MODU]

Just to clarify things:  The Confederacy is not a sovereign nation today, just like Nazi Germany isn't (as I explained before).  The US Flag is the internationally recognized symbol of our nation, just as are all the other national flags of the world.  Pictures of Washington or text copies of the Constitution are not.  As far as small scraps of paper made in the shape and color of flags, they do not meet the recognized definition of a national flag (even a kid can tell the difference between a real flag and a small paper one).

[MODU]

Soulty, just to summaries your questions.

flag as national symbol:  Flags are the international symbols for each country.  That is why flags are displayed behind national leaders in international meetings rather than pictures of the various nations capitals.

What would be protected:  Official flags are denoted under federal code (sizes, dimentions, etc) and would be further clarified under Congressional legislation once the Flag Protection Amendment is passed.  Paper flags, sjeets painted as flags, etc are just representatons.

Arbitrary protection: The Flag Protection Amendment protects the flag from desecration (burning, vandalism, etc).  Burning is just the example most oftenly mentioned.  A flag that touches the ground should be retired, but if it occurs by accident, and not intentionally as a form of disrespect, it isn't desecration.

Upside down:  no.  Again, the amendment deals with desecration.

Burning the flag being special:  It's not, see above.  It's the example most people use.

Unpatriotic:  Maybe, maybe not.  Maybe they are for once using their heads and ignoring partisanship to do what's right.

[MODU]

Flag burning clearly is symbolic speech. 

So is cross burning.

The First Amendment protects cross burning as well as flag burning.

From my understanding, Virginia vs Black upheld that cross-burning was not protected under the First Amendment.

[MODU]

Do we need a Cross Protection Amendment too?

No, because the court realized that "freedom of speech" is not a blanket right in this case (a moment of clarity for them).  And like I said before, if the court wants to go back and repeal their flawed ruling, we won't need a Flag Protection Amendment either.

[MODU]

Do we need a Cross Protection Amendment too?

No, because the court realized that "freedom of speech" is not a blanket right in this case (a moment of clarity for them).  And like I said before, if the court wants to go back and repeal their flawed ruling, we won't need a Flag Protection Amendment either.

So if the Court reversed its ruling saying that cross burning is not free speech, a Cross Protection Amendment would be necessary?

First, that ruling would be challenged on the ground that hate speech as already been ruled as not being protected, so you would have at least one more court case on the issue.  If the Court continues to rule against it, then I would support a Hate Speech Amendment.

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Unpatriotic:  Maybe, maybe not.  Maybe they are for once using their heads and ignoring partisanship to do what's right.

Do you find it a coincidence that this flag protection circus was brought up right after another attempt at banning gay marriage, which was near universally acknowledged as a ploy for Republicans to hold on to Congress this year?  If anyone was ignoring partisanship and using their heads, it was the Republicans who voted against.

The amendment was brought to the Congress at the beginning of 2005 and had to go through the committees before coming to the floor.  They cleared committees earlier this year and scheduled to come to the floor on Flag Day since it was deemed a symbollic date.  The fact that it occurred before or after some debate on another issue is coincidental.

[MODU]

They cleared committees earlier this year and scheduled to come to the floor on Flag Day since it was deemed a symbollic date.

Exactly my point.  It was scheduled to come to the floor when patriotism is high and when people will remember who voted against this amendment in November - in other words, yet another election ploy.

No, your point was that it was set to follow the gay marriage ban, and it was not an election year ploy.  If it had cleared committee last year, it would have been brought up on Flag day last year.  This amendment process has been going on for over a decade.