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NINOMANIA

:: A constitutional law blog by Scalia/Thomas fan David M. Wagner, M.A., J.D., Research Fellow, National Legal Foundation, and Teacher, Veritas Preparatory Academy. Opinions expressed here are those of the author and do not reflect those of the NLF or Veritas. :: bloghome | E-mail me ::


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    [::..archive..::]
    ::

    :: Tuesday, July 04, 2006 ::
    Happy Fourth!

    Check this out: I'm against the flag protection amendment!

    It's not that I'm as confident as Justice Scalia is that Texas v. Johnson, which he joined and has often publicly defended, is correct: I accept that its fact pattern isn't O'Brien, and that the Texas law imposed a direct rather than an indirect burden on expressive conduct -- but then, I've never been persuaded that "speech," "press," or any other term in the First Amendment (emphatically including "religion," which is clearly a term of limitation within the Free Exercise Clause) affords general protection to any conduct that can plausibly be termed "expressive." The reasoning of Johnson puts at risk the principle of states' and localities' "contra bonos mores" power, which Scalia defended in his Barnes v. Glen Theater concurrence, and of course his Lawrence dissent.

    However, the effort to undo Johnson by amendment is disturbing for two reasons:

    1. If the flag amendment ever did become part of the Constitution, it would set a risky precedent: what else will be disovered to be too "sacred" to be abandoned to the First Amendment? We live in an age of "political correctness," remember? If we get into the habit of putting offendedness-preventing clauses into the Constitution, what will future ones look like?

    2. It trivializes the amendment process. It's purely symbolic, and everyone knows that. Not so with the marriage protection amendment: loss of the publicly available concept of marriage -- I should say, further loss of it -- would do much more than symbolic harm. But when a Republican-controlled Senate debates these two amendments in one summer, the impression naturally arises that neither is anything more than rightwing pandering. Which, in the minds of some Senators, it may be. But not in reality.

    3. Consequently, while I don't find much to agree with in this Christopher Hitchens column (well-written, as always), I do like this part:
    You may believe if you choose that Hillary Clinton has abruptly decided to stand between her country's star-spangled banner and its unsleeping enemies. I cannot quite shake the feeling that she is instead putting the flag between herself and her potential critics. Is it this kind of degraded election-year parody that the sponsors of the proposal seriously wanted to encourage? In Iraq, our most desperate field of battle, our troops do not display the flag on patrol because they are in someone else's country. No thinking soldier needs to have this explained to him, or her. But in Washington, the alleged "defense" of the flag depends, for its swing-votes, on people whose very stock-in-trade is cowardice. That ought never to have happened, and is an insult to those who serve, and ought not be permitted to happen again.

    :: David M. Wagner 6:12 PM [+] ::
    ...

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