National unity, as an end which officials may foster by persuasion and example, is not in question. The problem is whether, under our Constitution, compulsion as here employed is a permissible means for its achievement. ... It seems trite but necessary to say that the First Amendment to our Constitution was designed to avoid these ends by avoiding these beginnings. There is no mysticism in the American concept of the State or of the nature or origin of its authority. We set up government by consent of the governed, and the Bill of Rights denies those in power any legal opportunity to coerce that consent. Authority here is to be controlled by public opinion, not public opinion by authority.
-- West Virginia State Board of Education v. Barnette
There are only a small number of things that constitutionally require a supermajority vote in Congress though in practice many things do with unlimited debate rules in the Senate and so forth. They generally are not too much trouble. For instance, removal from office (after impeachment by House majority vote) is basically obsolete, since it is considered in bad form. Treaties also require a supermajority vote, but other than the fact that they now are deemed optional affairs (don't let the Supremacy Clause confuse you), executive agreements and other aspects of the "unitary executive" makes them almost as trivial as declaring war. And, expulsion from Congress also is on the list, but CYA rules apply here.
And, then there is the proposal of amendments. There have been some amendments that were never ratified by the states ... amendment to the founding document deemed such a major change that an additional supermajority requirement was tossed in. For instance, the original First Amendment (the 27A originally the 2A) setting up limits to the number of representatives in Congress was not ratified. Many more were "proposed" only by too few to be sent to the states for ratification. Generally speaking, this was because they were pretty lame.
The Congress shall have the power to prohibit the physical desecration of the flag of the United States.
For instance, there was the anti-gay marriage protection act. This measure was to protect homophobia against deluded state legislatures, referenda, and court rulings (and corresponding federal possibilities) who did not realize that religions and people in general who accept same sex marriage are deluded souls that threaten the institution of marriage much more than the multi-divorced who supported the amendment. Another that almost makes such an amendment seem sensible is one that sets forth the authority to protect against abuse of the flag. One that easily got out of the House (thus quite a few Dems voted for it) and is only a few votes (one vote?) shy in the Senate (thus, too many Dems voted for it).
[Some of this discussion underlines the importance in remembering this is not just a flag "burning" amendment, but one that is meant to protect it from improper treatment overall. After all, there is a formal way to dispose of old flags, which might include some sort of burning. Used flags are not buried whole, or something. The true breadth of the amendment as well as its special sanction flavor makes is even worse than one that just targted "unauthorized" (so to speak) flag burning.]
As with the former amendment, this requires specification of terms. For instance, the few who actually burn a flag in protest might very well argue that they really love this country, or rather what this country should stand for. Burning the flag is just a protest against a government they believe are the ones dishonoring "for which it stands." Likewise, many practices that one guesses would not be open to liability are viewed by many to be desecration. Given free speech and such, the amendment itself seems to dishonor the flag. But, various clothing emblazoned with the flag, flags left open to the elements on one's property, flag tattoos, and so forth might be deemed dishonoring such a "sacred" symbol.
I use that word advisedly -- there is a certain sacred cow flavor here, an idea that disgracing the flag is a type of blasphemy. Thus, yet another establishment of religion is being offered to the public. This is totally appropriate in a sense given that an exception to the First Amendment is argued to be necessary, and it often is hard to truly separate the various guarantees.
Therefore, a certain means of protest (petitioning government), sort of speech/expression, and matter of conscience are all to be deemed verboten. Oh, and it really is the Supreme Court's fault (so says Sen. Hatch, such a sanctimonious asshole), since it held 5-4 (a shame in itself, especially Justice Stevens' vote, though I doubt he supports the amendment) that flag descreation laws are unconstitutional. Darn Justice Scalia ... darn activist judge! As you know, Texas v. Johnson was a direct cause of Bush v. Gore, give them a little power, there is no stopping point.
Catholics accept a version of the Ten Commandments that does not include the barrier to graven images, which is a good thing given the value they supply to icons and statues. Still, many Protestants do list the Decalogue to include that Second Commandment, tossing all the covets into one catchall amendment. Jehovah Witnesses, though admittedly loonies and all, take this so seriously that they do not want to "bow down" to the flag. Thus, mandatory pledge laws are unconstitutional, another one of those darn activist deals. Again, certain religious beliefs really are silly, and do not warrant are respect. This helps explain why we need an amendment to protect our sacred flag, an icon that not only represents an idea, but is important in itself. Now, Jews ridiculed pagans who bowed down to idols, Muslims keep mosques free of such things as well.
We however apparently are to be different. We need a certain icon of sorts that is not to be defamed in any fashion, since the idea behind it is not the only important thing, but the physical entity is as well. Once it was said that nothing is more powerful than an idea whose time has come, and we are said to be a nation of laws, not men. The most important things, in other words, tend to have a certain intangible quality.
Thus, it seems ridiculous to me to be so concerned with those who defame a piece of cloth (does a picture of a flag count too?) ... in fact, as Justice Scalia noted, does not the burning emphasize the importance of the symbol? The few would not burn the thing if it was so trivial and demeaned these days. The flag is strong enough to survive a few losers who feel a need to burn it. [Below quote via NYT.]
"This objectionable expression is obscene, it is painful, it is unpatriotic," said Senator Daniel Inouye, Democrat of Hawaii and winner of the Medal of Honor for his service in World War II. "But I believe Americans gave their lives in many wars to make certain all Americans have a right to express themselves, even those who harbor hateful thoughts."
All the same, I do not really feel a need to say "I hate when they do that, but defend their right to do so," though respect the need of politicians to do so. Burning a flag is simply way down there in respect to things one can do that I find reprehensible. Hypocrites warrant much more scorn than attention getters who find a need to be "outrageous." Now, respecting icons deemed sacred is appropriate. But, respect is not really something that you should mandate by law.
So, we respect equality, but don't mandate that its symbols (e.g., a copy of the Constitution) be "respected" by limiting freedom of expression in the process. In fact, that sort of is the point -- expression is protected, even when it goes against the core of what we stand for. Are we to allow hate filled rants left and right, but amend the Constitution to protect the physical integrity of the flag? No, we should aim to protect its principles.
Instead, as our citizens die apparently to protect our national interests and to promote freedom, a majority of the U.S. Congress, including a sizable amount of Democrats, wants to amend our foundational document to secure against something that nearly never even occurs. Consider that even the seminal case of Texas v. Johnson involved a stolen flag ... even the few instances sometimes involve neutral breaches of the law. But, this is just a side issue -- the core issue is the ultimate hypocrisy, the ultimate trivialization of allegedly protecting a piece of cloth while in the process truly violating what it stands for. I wonder why they did not have the vote on Flag Day (the Barnette case, protecting the right not to pledge allegiance to it was handed down 6/14/43) ... but perhaps 7/4 is a better day to disgrace the principles of our nation.
This is too fundamental of a violation of principle to accept even as an unfortunate bone to toss to the public, an ultimate disrespect that cynically allows the public to accept a violation of principles it should hold dear. Truly representing our interests is something both parties have not been doing a lot of lately. For instance, I repeatedly noted that Congress has an obligation to fully consider the matter before allowing the invasion of Iraq in 2003. Likewise, its constitutional responsibilities includes handing down rules respecting treatment of detainees and military regulations overall. But, clearly, a majority does not truly honor the Constitution, wanting to amend it to make some sort of cynical point ... if they actually believe in this crap (some do), it is worse ... so that is really a silly thing to be expect.
So, if you want to be a rebel, no need to do things like smoking, putting up a Confederate flag or whatnot ... just burn a flag. This will show you are a big bad ass, and even more worthy of reprobation than the NYT. Tell you what ... just click this link ... print it out, and set it aflame. Do it while you have a chance ... as with slavery, it will be one of the few personal acts [most provisions respect state action] that the Constitution will directly target as truly verboten. Or, so a majority of your national representatives, including many Democrats, wish will happen. Sen. Clinton not one of them ... she just wants simple legislation, a junior varsity version of tyranny.
Tyranny ... an idea whose time has come?