Much to my consternation, I discovered that my Democratic, liberal Congressman Steve Rothman, not only voted for the amendment in the House along with 77 other Democrats, including my former Congressman in Montclair, Bill Pascrell, but he was a cosponsor of the amendment. Accordingly I sent him an e-mail expressing my dismay.
I quote his response below:
“Thank you for contacting me to express your opposition to
H.J.Res. 10, a constitutional amendment to ban desecration of the
American flag. I appreciate hearing from you and I welcome the
opportunity to respond.
"I understand and share your concerns about threats to First
Amendment liberties and freedoms. However, while I am a strong
defender of our First Amendment rights, I believe that the
Constitution (and our Founders) meant for "reasonable" lines to be
drawn, limiting some forms of "speech" such as shouting "fire" in
a crowded theater, public obscenity, threatening a person or a
group with bodily harm, and child pornography. I believe -- and
certainly other reasonable people of good will could disagree --
that the unique national symbol of America's hard won freedoms
and liberties should be protected. In that regard, it is obvious but
important to note, that there are many other ways to express
disapproval for our government's actions, to oppose political
leaders, as well as to "protest" about one's general frustration with
our country's policies. I believe that a reasonable civil penalty
would be appropriate for those who would desecrate our national
flag.
"As you may know, on June 22, 2005, I voted for and
Congress passed H.J.Res. 10, a proposed Constitutional
amendment to prohibit the physical desecration of the U.S. flag, by
a vote of 286-130. I know how seriously you and many other of
my friends and respected colleagues may disagree with me on this
issue. However, I hope you are also aware that we hopefully agree
on the vast majority of other important issues facing our country
on a daily basis. And while we may disagree on this issue, please
know that I will continue to value your input on all the critical
issues facing Congress and I will be sure to keep our shared
support for the importance of free speech very much in mind.
"Thank you again for contacting me. As your
Representative in the United States Congress, it is a privilege and
an honor to serve you and to act as your voice in Washington.
Please feel free to contact me again with any other issue or matter
that concerns you. You may also want to visit my website at
www.house.gov/rothman where you can sign up for my e-
newsletter and keep current with my latest Congressional activities
and policy statements.”
I did not let the matter rest there but wrote to him again as follows:
“Dear Mr. Rothman,
"Thank you for your kind response to my letter on H.J. Res. 10, the constitutional amendment to ban desecration of the American flag.
"You are quite right that we agree on the vast majority of other important issues facing our country on a daily basis but I can not accept this issue of being of anything but fundamental importance.
"I wonder if you or your Democratic colleagues, who supported this amendment, have considered some of its ramifications.
"I recently received a small replica of an American flag in the mail. Will I be violating the law if I throw it in the wastebasket or would I have to keep it in order not to break the law? "If I wear a sweatshirt with the flag on it distorted will I be a criminal? If I have a flag that is old and dirty and throw it into the incinerator will I be guilty of flag burning? If I walk over a carpet bearing a likeness of the flag what would be the consequences.
You talk of this new crime being subject only to civil penalties. Is there a provision in the amendment that limits the penalties to civil ones and if so does it prevent the penalties from being excessive?
"Is our National Anthem any less our National symbol? If people sing it, but distort the words so as to change the last line of the Anthem to, “Over the land of slaves and the home of cowards?” would you support an amendment to ban distortion of our anthem?
"A few years ago the Brooklyn museum had a display that deeply offended Catholics. Then Mayor Giuliani felt it should not be allowed to be shown. Would you support such a ban?
"If someone published material denying the Holocaust and saying while it isn’t true it, it would nevertheless be a good idea to kill all Jews, do you think our laws should make this criminal, (as it probably is in present day Germany) or even attach civil penalties.
"I do not see how you can support the flag amendment, which you not only supported but sponsored, without asking yourself, and answering these questions.
"I would be grateful if you would let me have a detailed response even though no form letter could serve this purpose.”
At about the same time there appeared in my local paper, the Fort Lee Suburbanite the following letter to the Editor:
Senators must support flag protection
"TO THE EDITOR:
"Once again, a large majority of the U.S. Senate is committed to send the Flag Amendment for an up-or-down vote by representatives of the people. Once again, this majority may be just shy of the required two-thirds. And, once again, a few "swing" senators are coming up with old excuses for stifling a uniquely democratic process of constitutional lawmaking.
"These senators say they agree with most Americans: Congress should be allowed, as in the past, to protect the flag from physical desecration. They say there's a need to protect the American flag from defecation, urination and burning. They do not claim it would somehow erode free speech to do so. But, here is where the excuses come in.
"First, they insist there's another way. A flag protection statute, they say, would be better than a constitutional amendment. This misses the point. The point of the constitutional amendment is precisely to permit the enactment of a statute. A senator who supports a statute must support the amendment. There is no way around it.
"The reason, of course, is that a bare (5-4) majority of the Supreme Court- for the first time in our history, 15 years ago - held that specific statutory protection of the flag is impermissible. The five justices said that physical desecration is "speech" and that singling out the American flag for protection amounts, in itself, to favoring one point of view over other competing points of view. Under this reasoning any flag protection statute will be invalid.
"The "swing" senators claim disagree with the Supreme Court. But they are reluctant back up their disagreement with their vote. Instead, they want to imagine the court never did and said what it did and said. When pressed on this point, they move on to a second excuse for blocking progress of the amendment. The court, they imagine, will soon change its mind. This is a fantasy.
"Four Justices have joined Supreme Court since it last faced the flag protection issue. Of them, three (Souter, Ginsburg and Breyer) would surely stick with the previous decision. Along with two others (Scalia and Kennedy) who were in the majority 15 years ago, that makes a majority of five. If the fourth new Justice (Thomas) were to agree with Scalia, as he often does, that would make six.
"What is more, the three Justices thought most likely to retire in the next several years (Rehnquist, Stevens and O'Connor), were all in dissent on the issue. Their replacement with pro-flag protection successors would make no difference at all.
"Again, there is no alternative. The "swing" senators either must accede to the court's continued ban on any statute specifically protecting the flag, a position with which they say they profoundly disagree. Or, acting on their professed support for flag protection, they must allow the 50 states to vote on the proposed constitutional amendment, thus permitting correction of what they say is the court's mistake.
"Of course, an amendment ought not be undertaken lightly. It ought to have sustained, very substantial popular backing before being sent to the states. Not many could pass that test. But the Flag Amendment does. For a decade and a half, the overwhelming bulk of the American people have supported it.
"The "swing" senators say they, too, support flag protection. Now, the time has come to see if they really do.
Richard D. Parker
Professor of Law
Harvard Law School
I couldn’t resist and wrote my own Letter to the Editor which was published in Friday’s edition of the paper as follows:
“The letter to the Editor by Professor Parker of Harvard Law School which appeared in your July 8, 2005 edition is notable for the fact that it goes on paragraph after paragraph extolling the desirability of a Constitutional amendment to limit the First Amendment so as to allow Congress to pass legislation banning flag desecration, without ever discussing the pros and cons of such an extra-ordinary act other than that it is popular.
"That it is popular is true, but it is equally true that it is popular because its consequences have never really been discussed and discussion has been suppressed by labeling anyone who does not support it as being something less than patriotic. But support of free speech by words or symbols is the height of patriotism. It is what our flag stands for.
"I recently wrote a letter to Congressman Rothman, who represents this district and I believe I can best address this issue by simply quoting my letter to the Congressman…. “
I then quoted the letter to the Congressman omitting, for brevities sake, the part about the Holocaust.
It will be interesting to see whether the Congressman responds. In the meantime I would be very happy to have comments on this controversial subject.
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