Given New Legs, an Old Idea Is Back (NY Times, June 4, 2003): .... The Republican-controlled House understands that these are good times for Old Glory, as Americans respond to the threat of terrorism and the war in Iraq. So today, when the House considered a perennial legislative favorite — a constitutional amendment that would give Congress the power to bar desecration of the American flag — it came as no surprise that the measure passed handily, 300 to 125. This was the fifth time the House had passed the measure. But it has always died in the Senate, where opponents, mainly Democrats, argue that it would infringe on the First Amendment. Now the question is whether the surge of patriotism will overcome those objections and carry the measure to passage.
Heavy sigh....
You know, I can't figure out what's more distressing. The fact that Congress keeps considering this boneheaded amendment, or the fact that some in Congress apparently don't quite understand how this constitution thing works. It is, after all, legally and logically impossible for a Constitutional amendment to be unconstitutional. It can be, as noted, boneheaded, thoroughly unwise, and an attempt to pander to the masses -- who don't seem to be demanding a flagburning amendment these days, do they? -- but perforce, it cannot be unconstitutional. Moreover, as a Constitutional court bound to hear cases in the light of said Constitution, the Supreme Court could not hear a textual challenge to the amendment. What could they say? "Well, we think it really ought to be unconstitutional, but since it's part of the document now, all we can say is, c'est la vie!"
Posted by iain at June 04, 2003 08:00 PMComments
Umm... I'm not seeing anything in that article to suggests that opponents of the amendment in question are unaware of the constitutional ramifications. There isn't a word in there about the amendment coming up for Supreme Court review, or anything else like that.
The only statement that seems to even sort of maybe be in that ballpark might be "opponents, mainly Democrats, argue that it would infringe on the First Amendment," which, aside from being a paraphrasal, is completely consistent with what you're saying. The new amendment is designed to limit the First Amendment, of course. The question is a philosophical one, not a legal one. If you truly believe in what the First Amendment stands for, the proposed flag-burning amendment is an abomination; if you see the First Amendment as something that's occasionally useful but which ultimately goes too far, then you might not mind whittling it away. In either event, I don't see any grounds here for a civics lesson...
Posted by Shmuel at June 5, 2003 02:10 PMShmuel covered my major nit.
A minor nit: There are a couple of possible
amendments that would be unconstitutional.
1) Denial of a state of equal sufferage in the
Senate, without that state's consent.
2) [no longer applicable] Prior to 1808, changes to a couple of clauses dealing with slavery.
An approved Ammendment to the Constitution cannot be considered to be Unconstitutional since it is now a clause of the Constitution.
Posted by rabidfox at June 9, 2003 10:50 AM
