Cooler heads prevail

By the margin of a single vote (66 of the 67 needed), the United States Senate failed to pass a flag burning amendment.  To quote a Republican Senator whom I am not usually particularly fond of, Mitch McConnell put it quite succinctly: “No act of speech is so obnoxious that it merits tampering with our First Amendment.”

To quote the Washington Post's paraphrase of a Republican Senator whom I almost never fond of, Orrin Hatch:

“The amendment's chief sponsor, Sen. Orrin Hatch (R-Utah), charged that “five unelected justices” had overturned legal prohibitions that were in force for decades and supported by majorities of the public, the state legislatures and the Congress.

“This amendment is one of the most important things we can do — to send a message to the United States Supreme Court that you cannot usurp the power” of Congress, Hatch said.”

So, according to Hatch, so long as a majority of the public and a majority of the states support something, it must be good.  By that reasoning, slavery, gross discrimination against every group except white males, and physical torture as criminal punishment were good things.

Apparently, Hatch never learned that a chief purpose of the Supreme Court is to prevent a “tyranny of the majority.”  We don't need the first amendment (and the Court) to protect popular views we need them to protect unpopular ones (i.e., flag burning).  Once you start making exceptions in the first amendment for particular unpopular views, you have started down a dangerous path. 

And to end in a note of tortured partisan fairness: I expect pandering to their conservative base and insufficient understanding of the first amendment from Republican Senators– it is the 14 Democratic Senators who voted for this amendment that I am particularly disappointed in.

UPDATE: Nice column on the matter in the Raleigh News & Observer today.  Best quote: “But burn an American flag because you're mad at your senator and have
chosen a dramatic way to make your point — the very essence of
political speech — and some politicians want to put you in jail. It's
not what you do, it's what you think that bothers them.”


About Steve Greene
Professor of Political Science at NC State

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