I was previously a constitutional law and civil rights litigator and am now a journalist. I am the author of three New York Times bestselling books -- "How Would a Patriot Act" (a critique of Bush executive power theories), "Tragic Legacy" (documenting the Bush legacy), and With Liberty and Justice for Some (critiquing America's two-tiered justice system and the collapse of the rule of law for its political and financial elites). My fifth book - No Place to Hide: Edward Snowden, the NSA and the US Surveillance State - will be released on April 29, 2014 by Holt/Metropolitan.

Tuesday, June 20, 2006

The Dumbest Law Ever

By Anonymous Liberal

(updated below - by Glenn)

According to the USA Today, the Senate is currently only one vote shy of the 67 votes needed to pass the "Flag Desecration Amendment." If so, I'm convinced the amendment will go down in history as the dumbest law ever written.

As an initial matter, it's hard to think of anything more un-American than banning a purely symbolic act. It would be the first time we've ever amended our Constitution to curtail the Bill of Rights. We would be carving out a bizarre exception to our most celebrated right, the right to freedom of speech. The new rule would be, in essence, you can say anything you want (but you can't say that).

But let's put aside the fact that we would be trading in an eloquent statement of principle for something that sounds like a Meatloaf song. Let's put aside the fact that we would be joining the ranks of such illustrious regimes as Nazi Germany, Cuba, China, Iran, and Iraq (during the Saddam era). Let's forget all that and assume, for the sake of argument, that there is no more heinous transgression than the desecration of an American flag and that we must do whatever it takes to--God willing--stop this horrible crime for taking place. Assuming all that, is the Flag Desecration Amendment good policy?

The answer to that is--of course--a resounding "no." I, for one, have never felt any real desire or inclination to burn an American flag (or any other flag for that matter). Apparently most Americans are in the same boat because, according to one study, there were only 45 reported flag burning incidents in the first 200 years of the republic (h/t Think Progress). That means there are probably more historical incidents of witch-burning than flag-burning. Maybe we should start debating the Witch Protection Amendment.

But I digress. Back to flag-burning. Despite my natural disinclination (apathy?) toward burning flags, if the Flag Desecration Amendment passes, I'm going to be awfully tempted to burn one for the first time, if for no other reason than to protest the passage of such a mind-bogglingly stupid amendment. And I have a feeling I won't be alone. It seems likely, therefore, that the primary consequence of this amendment will be to dramatically increase the level of flag burning in this country.

If you doubt this is true, just ask Professor Robert Goldstein, who's an expert on the subject. This Senate Report quotes Goldstein as saying: "We've had more than twice as many flag burnings since this became a front page issue in 1989 than in the entire history of the American republic." The report continues:

Professor Goldstein has established that the number of incidents peaked during the period after the 1989 Flag Protection Act was in effect, and that the rate of incidents has more than tripled since the current effort to amend the Constitution was initiated. Even with the increase brought on by the agitation for bans on flag burning, the actual number of incidents remains exceedingly low. These facts are undisputed.

So there you have it, folks. Not only is banning flag-burning thoroughly un-American, but it's an extraordinarily counterproductive policy. It turns a non-problem into an exponentially more prevalent non-problem. And that's why I can say, with confidence, that the Flag Desecration Amendment is the single dumbest law ever.

UPDATE (by Glenn): The USA Today editorialized quite strongly today against the Flag Desecration Amendment, and then provided space for an editorial in favor of the Amendment. Who wrote the editorial favoring this Amendment? The increasingly odious Sen. Dianne Feinstein, who insults everyone's intelligence with this inane "reasoning":

Some opponents of the Flag Protection Amendment argue that we must choose between trampling on the flag and trampling on the First Amendment. I strongly disagree.

There is no idea or thought expressed by the burning of the American flag that cannot be expressed equally well in another manner. This Amendment would leave both the flag and free speech safe.

Obviously, the burning of the American flag does convey a message in a unique way or else there wouldn't be an effort to amend the Constitution in order ban it. We have spent the last 218 years with the Constitution prohibiting all attempts by Congress to restrict free speech, but Feinstein thinks we should change that so that we become a country in which people like Dianne Feinstein can dictate to us what is and is not an appropriate form of political expression. She thinks she should be able to criminalize certain types of political expression and then tell us not to worry because the views can "be expressed equally well in another manner."

Dianne Feinstein is on both the Senate Judiciary Committee and the Senate Intelligence Committee and sleepwalks as the Bush administration wages war on the constitutional principles which define this country. And yet this is the issue which has moved her to write an editorial in a national newspaper.

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