The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials, and to establish them as legal principles to be applied by the courts. One's right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.
So says Barnette, which particularly involves active coercion (pledge ceremony), but has principles gloriously repeated for over fifty years that apply far beyond that more narrow subject. A member of Congress opposing the flag amendment could do worse than read it into the congressional record, including its notice about how inadequately American history is taught in this country. As with most great opinions, its principles are only imperfectly applied, as is the case here. Also, sadly or not, our freedoms surely do partly depend on election results.
The quick Reuters article on the defeat of the amendment warrants extended comment.
WASHINGTON (Reuters) - The U.S. Senate on Tuesday defeated by one vote an effort to change the Constitution to let Congress outlaw flag burning, rejecting a politically charged issue backed by conservatives for the second time in a month. The 66 to 34 vote fell just short of the two-thirds needed to pass a constitutional amendment and send it on to the states for ratification. The House approved the amendment last year.
Again, "flag burning" is inaccurate, since the amendment was to be broader than that ... it covered all actions deemed to be desecration. Also, burning might be a means to dispose of old flags, if done in a "proper" fashion. The vote breakdown can be found here. Usual Democratic suspects: the gentlelady from Louisiana, the Nelsons, and Baucus. More sad: Sen. Feinstein and Menendez (N.J., newbie/election race). Principled Republicans: Sen. Bennett, Chafee (tough race, liberal state), and McConnell (he stood on principle, suggesting his opposition to campaign finance limits on 1A grounds is not just cynical). No, a certain senator from PA was not among the "nays."
The Senate earlier this month voted down a constitutional ban on same-sex marriage. Backers, including all but three Republicans, said a constitutional amendment was the only way to overturn a 5-4 Supreme Court ruling in 1989 that struck down flag-protection laws in 48 states and the District of Columbia.
So, the anti-freedom breakdown had a clear party flavor, but sadly about a fourth of the Democratic caucus joined in. Flag burning was deemed more dangerous than same sex marriage. There is something a bit bizarre about that, especially since the latter actually has real life effects. But, so does the former, in the sense of negative political backlash. Still, do those darn swing votes and so forth really care more about flag burning? Homosexuality actually pops its head, if only when some celebrity (you know, like Mary Cheney) is in the news, now and again. When does "dishonoring" the flag unless some pol or interest group actually makes an issue of it?
Democrats, even those who supported the flag-burning amendment, said Republicans were pandering to conservative voters ahead of November's elections when they should have been tackling more substantive problems.
But, they do, so a few Dems find it necessary to cover their asses. They are "forced" to do something that they rather not do, like be on record supporting an amendment to the U.S. Constitution for such a stupid reason. That is, they have no guts, or not enough, to stand up and explain what the flag truly stands for. Senators Bennett and McConnell manage to do so from the states of Utah and Kentucky. Sure, maybe they are more comfortably in safe seats, but sometimes you have to draw a line in the sand. Fundamental freedoms should not be used as cheap election tools.
Thus, we should not be too comforted in the fact that there was not enough votes to get the amendment out of the Senate. There is a certain act of principle here. Furthermore, it is not like these people -- including the Democrats -- do not various times vote against freedom in other more tangible ways. The promotion of the amendment as well as its support is but a sign of a larger problem. This includes a sad attempt to split the baby, one that Clinton's baby really, though Sen. Durbin (sigh) brought it to the floor, and Kerry voted for it as well.
It went down 66-34, a simple piece of legislation to criminalize flag desecration, Clinton noting: "Fortunately, we have an opportunity to protect our flag in a bipartisan and constitutional way." She must have been pleased that the NYT report noted her "split" with the "liberals" on the matter, as if Kerry and Durbin are not normally so considered. The article quoted a Democratic consultant saying such "pragmatism" wins elections. Arianna Huffington (certain "editorial boards" apparently agreeing) added:
"It seems in line with her stance on so many issues - trying to strike right in the middle and triangulate, by not supporting the amendment because that would upset the base too much and at the same time supporting a legislative proposal that will appeal to the center," she said of Mrs. Clinton. "It's a truly tragic way of leading."
Sure enough. The bill is phony -- it is clearly unconstitutional. Sen. Lieberman, shocker, is for it ... you know since: "If someone desecrated a flag, you'd like to strangle them." Sure ... loads have reached the point that they want to strangle him, that's for sure. One of the Republican dissenters (Bennett) is also on record for it. The measure allows various Democratic opponents of the amendment to tell people they really do want laws to make people who "desecrate" flags to be criminals.*
No, they don't want to prosecute (or impeach ... or censure) members of the Bush Administration. Sad commentary of current politics. The supposed way to win is "pragmatism," which takes some "middle way," which manages to violate fundamental principles, but just less harshly than the current path. You know, supporting criminal wars, but in a more "moderate" fashion. The blood flows more moderately, Iraqis suffer more "moderately," and so forth. And, we can despise our leaders ... moderately. You know, as compared to Bush and company. So, it's a win win, right?
Well, again, she supported further expanding protections to our privacy, which was all to the good [seriously ... as was her opposition to the polticization of medicine respecting the morning after pill] ... I guess we can still privately improperly criticize the government. No need to upset the independent senator from Connecticut by doing such things out in the open and all.
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* The official record only notes the vote is "To provide a complete substitute" via a Durbin amendment to the amendment measure. The NYT article, however, noted the measure was similar to the one proposed by Clinton earlier. For discussion of that measure, and why it in effect clinched the writer not voting for her in a primary, see here.