Assaulting Our Rights...

A story that ran across the AP last week on Wednesday night did more than disturb me. The several hour long diatribe, several irate phone conversations, and two letters I sent to Illinois representatives in Congress are a strong indication that HR J 10 was more than a mere thorn in my legally minded side. Joint House Resolution 10 proposes a Constitutional amendment that gives Congress the power to ban flag desecration. For all of you like-minded First Amendment supporters out there, say good-bye to the protections of Texas v. Johnson.

I will preface this with a little history. Prior to 1989, 48 states and the federal government had flag desecration statutes on the books. In 1989, the Supreme Court heard what would become a landmark case, Texas v. Johnson. Police arrested the defendant, Johnson, for flag desecration after he burned a flag while protesting a political convention. Johnson argued in his defense that the flag desecration statute unconstitutionally abridged his freedom of speech. The Supreme Court decided in Johnson's favor in 1989, and the decision subsequently abolished the 49 laws proscribing flag desecration.

This particular amendment to the Constitution aims to take the power away from the Supreme Court by preventing them from being able to render such statutes violative of the Constitution. While not technically an amendment to the First Amendment, the new amendment would create a damaging precedent much like a constitutional definition of marriage.

The First Amendment aimed to embody the founding fathers' opposition to oppressive practices in England in the late 18th Century. At that point, the Monarchy declared a state religion and prevented any negative press about the royal family. These policies led the drafters of the Constitution to state with specificity, "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press." Const. Amend 1. Therefore, the purpose of the First Amendment is to preserve the right of the people to speak in whatever reasonable manner the people see fit.

Though Congress doesn't feel that burning a flag constitutes reasonable speech, it’s important to note that such an expression is a fundamental act of speech, intended to convey a message of vehement distaste with the actions of the government. Ideally, burning a flag symbolizes the utter disgust with the state of the nation. While the purpose of the First Amendment aims to protect political speech, this amendment would only further an oppressive approach to the most fundamental of our civil rights. The rationalization for the amendment is a strong indication of this negative reaction to speech critical of the American government.

Various news agencies quoted house republicans as saying the purpose of this amendment is to allow protection of the symbol of American Patriotism or the American ideal. Essentially, this amendment aims to imbue the flag with pro-government sentiment and restrict its use for displays of patriotism and pledges of support for the actions of the Government. By imbuing the flag with these characteristics, the amendment prevents the use of the flag for speech demonstrating negative opinions about the government. Furthermore, the notion that protecting the flag is necessary to foster patriotism is utterly absurd.

If patriotism is nothing more than our flying of the flag, our nation is in grave danger. The concept of the American ideal is embodied in the way we, as citizens, choose to lead their lives. There is no more fundamental display of those ideals than political discourse itself. Furthermore, denigrating our national ideology into something corporeal makes the ideology as fragile as that corporeal object. It is too easy to destroy an object; the fundamental ideas upon which this nation was created are some thing far greater than sewn cloth. The notion that something corporeal that represents our ideals needs greater protection than the ideals themselves is even more repugnant.

It’s the ideals that need protecting, not the representation of those ideals. Protecting the representation detracts from the meaning of the ideology, relegating our reverence for government to nothing more than obedience. Some say that desecrating a flag is un-American. To those I say allowing this attack on the most fundamental of rights, upon which this nation was founded, is equally un-American. What is at stake here is not simply the destruction of the flag, but our ability to speak freely. Weighed in the balance of justice, the freedom to speak should always win.

Distrubing yet far from unnoticed

I am disturbed by the apathy of students recently graduating from high school and college. We are the generation that can change the world, the ones who will solve the problems plaguing the world society. With the baby boomers on the way out, it is up to the leaders of tomorrow to step up and take responsibility for the future. Instead, the apathetic youth prefer to drown the seemingly hopeless event horizon of adulthood in a purple haze of ambivalence.

Losing the guiding light of social change is only one problem. Social decay should qualify as a concern equal to that of anyone who ponders what is to come. Apathy breeds loathing and thoughts of worthlessness. The seeds of doubt germinate and sprout an entire generation of individuals willing to accept things the way they are regardless of how bad things get. We are caught in the downward spiral because we are socialized to be mediocre. With our idols pluming the depths of rampant stupidity with the likes of Johnny Knoxville and pulse with the somber self-hate of lost pain through the eyes of Kurt Cobain, it is no wonder we have been set-up to accept disappointment and attempt to find solace in the inner sanctum of the acceptance inherent in apathetic views on life.

We need to wake up and realize that the everyman that can make a difference. The revelation that it is the many that makes up the body politic. Without speaking of the abstract greater good, we need to realize that the only way to rectify our current situation is to break free of the shackles of self-doubt, embrace our civic duty, and make a stand for what we believe is right. Regardless of which side of the fence you fall, participation is the only way to ensure the proper operation of polity.

Continuing on this path leads us to a world were politics is controlled by the few, the once great American revolutionary spirit has become docile, and were we are easily led like indifferent, faceless automatons. Bleak as it may seem, things can change, but it will take the unity of American society to accomplish the task. Wake up generation X and Y, embrace your potential, change our nation and change the world.

Altering the Balance

This is a column posted from the Grey Area printed in April issue of "The Forum" .


Recently, legislators have begun attacking the creditability of the judiciary. While the legislature has long attempted to control the third branch through constitutionally available means, the tactics have turned specifically toward changes in the law by activist judges.

The pejorative flies around capital hill denigrating the entire judiciary. Attempts by congressional leaders like Tom DeLay and Bill Frist challenge judicial operation in different ways, but the result remains the same.

Representative DeLay’s posthumous probe into the judiciary seeks to change the ethical standards, subjecting judges to more rigorous ethical obligations. One effect of this particular action has been to refocus the Senate ethics committee on the acts of its own constituents.

Conversely, Senator Frist seeks to end all filibusters raised by the Senate minority. The purpose is to end the current struggle over President Bush’s judicial appointees.

Regardless of the method, the concern remains the same. Theoretically, the judicial system operates as a check on the legislative and executive branches. Decisions contrary to the will of Article I and II branches have lead leaders to attempt to determine what check operates on the judicial system.

Though restraints on judicial decisions are not readily apparent, explicit checks on judicial power do exist. First, the systemic organization of the judiciary limits ability to review legislation because of its retrospective nature.

Second, legislators have the option of creating laws that overturn judicial decision.

Third, after the Marbury v. Madison decision, the role of the courts is limited to review of the laws and mandates by Congress and the President to determine if those decrees conform to the Constitution. 5 U.S. 137, 138 (1803).

While these three principals confine the ability of the courts to create law, the grey area provides wide latitude for the court to determine what fits within the ambit of the constitution. Fears of abuse of power are unwarranted here. The appeals process provides stability and balance within the system.

Further constraints placed on the judiciary will limit the power and purpose of Article III. These limitations will break down the current balance providing uncheckable power to the other two branches. In order to preserve the façade of independence in the judicial branch, it must operate without further checks aimed at freeing up power in the other two branches. The equilibrium established by the founding fathers has lasted for over two hundred year, alerting that balance in underhanded and arbitrary ways to mold decisions of the court would pervert the purpose and debase the Constitution.

::Update::

Bipartisan Congress has reached a settlment to avoid the so-called nuclear option that would amend congressional rules that would abolish the filibuster. As voters, we should be concerned that the majority in Congress is so willing to destroy the delicate balance the filibuster provides between the minority and majority. Standing on party lines remains the most dangerous part of the legislative process. Unless both sides focus on what is good for the people, not their campaign boosters, the dichotomy of bipartisanism will tear legislative government apart.

Genesis...

The Grey Area came from a column I have in the student news paper while a student at the Valparaiso University School of Law. The Grey Area aimed to contemplate legal and social issues at the forefront of current events or social conscious. The Blogger version of the Grey Area aims to do the same, but with more frequency. As I write this, I will continue to pen the pages of "The Forum" (the VUSL student newspaper) with the the same prose that fills these pages. Similarly, the monthly installment of the Grey Area appearing in "The Forum" will be posted here.

I want to provoke conversation. I want to tackle tough issues, and at times the best way to do so is to play devil's advocate. As a student of the law, another goal is to utilize the vastness of the internet as a medium for Constitutionally protected discourse. Enjoy, make comments, get pissed off, write your congressman or the President, only the people in a democracy can effectuate change.