Wednesday, June 28, 2006

They did something right?

Can Congress actually do something right? Can they be correct in their determination of what is best for the country? On occasion, yes. Yesterday, one vote in Congress struck down the creation of a proposed Constitutional Amendment that would permit states to create anti-flag desecration statutes. Essentially these laws would prevent flag burning as a form of protest. While Congress passing the resolution wouldn't create the Amendment on its own (it requires ratification by the states to become an amendment), the mere proposal of this amendment indicates the disdain some of our leaders have for hallowed rights protected by the Constitution. The practical affect of this amendment would be to create a constitutional limitation to free speech. Fundamentally, the amendment operates to overturn the United States Supreme Court decision in Texas v. Johnson by Congressional fiat. There has only been one historical example of a constitutional amendment that limited individual liberty, eventually we learned out lesson. Amending the Constitution can be the most devastating blow to our personal liberty because it gives the people no recourse against government action. If it's in the Constitution, the government can do it, and no one, not even the Supreme Court, can stop the resulting oppression. Passing such an amendment would be irresponsible government. Its refreshing to see Congress acting responsibly for once, even if it's only by one vote. This is especially true considering their brazen attempts to limit speech in other venues. Can we say Bill of Attainder (Art. I, Sec. 9)?

Unfortunately, the same can't be said for the President. These kinds of conditional signing statements are a legal absurdity which disregards concepts of comity, the separate powers, and the system of checks and balances. It's no wonder he wants the line item veto so bad. It's one more step towards greater authoritarian control by the President. With the line item veto, the President could reject substantive portions of laws restricting his powers to act, or, in striking a portion of a law, greatly expand his powers. This is executive legislation, and is not permitted under the doctrine of separation of powers. It's no wonder the Supreme Court struck it down the first time.

For your amusement:

Rush Limbaugh has a new line item on his resume: sex tourist.

Jerry Falwell thinks that everyone in showbiz but him is a pervert. Just for clarification: Pervert.

Supreme Court Update:

Looks like Republicans win regarding Texas voting district gerrymandering. (full opinion) One thing I noticed is that this is a plurality, so it won't necessarily restrict future situations like this in other states. Also, the court made no mention of Bush v. Gore or the concept of one person one vote. It's 112 pages long so it may take a day or two to figure out what this means for voters and dangerous politics. Just an update with the New York Times's analysis of the decision.


Michael S. Class said...

The first federal Flag Protection Act was passed by Congress in 1968 in response to protest burnings of the flag at demonstrations against the Vietnam War. Over time, 48 of the 50 U.S. states also enacted similar flag protection laws as well. All of these statutes were overturned by the Supreme Court of the United States by a 5-4 vote in the case Texas v. Johnson, (1989) as unconstitutional restrictions of public expression.

After the Johnson decision, Congress quickly passed a new Flag Protection Act, which was also struck down by the Supreme Court the following year by the same 5-4 majority in the case U.S. v. Eichman (1990). The Court decided that expression through flag burning was constitutionally protected.


Ruling in an important First Amendment case, Virginia v. Black, (2003) the U.S. Supreme Court said that states may outlaw acts of cross burning.

The Donnybrook said...

Just an addition to your comment Michael, Virginia v. Black is an interesting speech case because it fit the intimidation and fighting words restrictions on the First Amendment originally announced in the Chaplinsky decision, and followed up specifically regarding cross burning and true threats in RAV v. St. Paul, which expanded upon Watts v. US.