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.
Posts
15 comments:
I very much enjoy reading your emails. Please continue to keep my name in your circulation list. Sorry, I never provided any comments or my opinion. I wish I can write well and express all my thoughts like you do.
Thanks for the commentaries. It is good to have a fresh viewpoint.
I agree completely with your opposition to any Constitutional amendment banning desecration of the flag. Your letters to your Congressman articulated very well all the reasons against such an amendment. If a person burns a flag that belongs to someone else, there are already laws that would punish that deed. . But if I own the flag what I do with it is no one's business but my own.
Anytime the house majority leader is in trouble for all sorts of illegalities. . . and the white house advisor is in trouble for giving aid and comfort to the enemy at time of war, [as despicable as anything that "hanoi jane" ever did,] it is a "good" ploy to wave the flag to distract attention. Whether he spilled the beans or only casually confirmed, it is a security violation to discuss classified info with someone who doesn't have need-to-know. When I had a clearance some 45+ years ago, when asked what I did, I would say I worked on electric typewriters.
Thanks for your commentary re the proposed constitutional amendment to outlaw desecration of the American flag. I am a faithful reader of your communications and encourage you to keep sharing your thoughts with me & I'm sure many others who appreciate them. I often learn something from your analyses and am generally in agreement with your political view. With regard to the "flag burning" legislation I'm more concerned with the current trend towards restricting civil liberties than with the specific issue. Good to hear from you again.
Just another demonstration by the extreme right that they have such power they do pretty much want to chip away at democratic rights -- as if flag desecration was a problem in this country and Congress had nothing better to do. I don't remember reading about a flag desecration case in the US for the past 30 years. Of course in places where it is a problem, like Palestine, Lebanon and Pakistan, such a law could not be enforced and its passage is likely to spur more hatred of the US and defiance. But what's really scary is that the government has the power to declare anyone an enemy combatant (even a US citizen) and detain him or her indefinitely without trial in what Amnesty International has called a gulag. And torture now seems to be the routine way of dealing with suspects in the war on terror. Add to this, a Supreme Court which makes a partisan intervention to overturn the people’s presidential choice, a judiciary that is becoming even more partisan -- and you see American democracy eroding. I guess nothing lasts forever.
Interesting question. The Post Office sells 37 cent stamps with an American flag on it. If the amendment and implementing legislation passed, would a postal worker who canceled one of these stamps on an envelop be guilty of desecration?
Thank you for talking about this issue that seems to have fallen from popular discourse lately. I share your concern about this ridiculous idea for a constitutional amendment. I think, though, that the technical problems you refer to in its potential implementation (flag-styled clothing, destruction of old flags, etc.) are ancillary to the real point. The real point, I believe, is that the United States is a strong, proud and secure enough nation to endure symbolic protest. It’s really ok, maybe essential, for American citizens to be allowed to feel and express anger towards our government and its policies. And if the expression includes actions of a symbolic and non-violent nature, then that is what the flag is all about in the first place. Congressman Rothman’s comparison of flag burning to shouting “fire” in a theater is not only trite, it’s completely inapplicable. You don’t yell “fire” because you’ll cause a dangerous stampede. What does that have to do with symbolic protest? The whole thing seems to come down to feel-good political expediency. As a Congressman, particularly as a liberal one, you have a chance to demonstrate your muscular pro-America bona fides with a ridiculous issue like the flag burning amendment.
There are two reasons why such an amendment is absurd. First, burning the flag is an exercise of freedom of expression, and the counter argument, that it is a particularly disgusting exercise of free expression, is shallow and silly. Parading around with swastikas is more disgusting than burning the flag, but we do not need a constitutional amendment to neutralize or ignore the morons who do so. Second, don't muck up the constitution with a lot of frivolous stuff. The idea of a constitutional amendment banning desecration of the flag makes about as much sense as a constitutional amendment banning folks from mooning the Lincoln Memorial.
I just ran across a column by the conservative columnist of the NY Times, William Safire, who many may know is also an expert in linguistics. He writes, and I quote only the relevant portions:
"The House of Representatives, by more than the required two-thirds majority, recently approved a proposed amendment to the Constitution that reads,'The Congress shall have the power to prohibit the physical desecration of the flag of the United States.'
"This was the House's thumb in the eye to the Supreme Court, which by a 5-4 vote in 1989 ruled that laws against flag-burning by demonstrators were an unconstitutional restraint on free speech. Now the bill goes to the Senate, which will most likely take up the issue after its August recess. If two-thirds of the Senate approves, the proposal will go to the 50 states for ratification. If 38 agree, the Constitution will be amended, the Supreme Court overruled -- and a great semantic mistake will have been made.
"Set aside the roiling debate between those possessed with patriotic fervor and those demonstrators eager to infuriate the vast majority of Americans. Consider only the meaning of the key word in the proposed change in our nation's basic law.
"Desecration is a noun steeped in the violation of religious belief. It is rooted in the Latin sacrare or secrare, source of 'sacred' and 'sacrifice', dealing through the millenniums with worship of a deity. To desecrate is to profane what is holy; Merriam Webster defines it as 'to violate the sanctity of,' American Heritage as 'to violate the sacredness of' and the Oxford English Dictionary as 'to take away its consecrated or sacred character.' Houses of God and gravestones can be desecrated by people bent on reviling religion or embracing evil.
"But national flags are not religious objects or symbols. Some lexicographers report a secondary sense of mere 'disrespect,' but that is aberrant usage, not common usage. If strong words retain their meaning -- with their 'first' sense signifying widespread public understanding -- then desecrate and its opposite, consecrate, are plainly understood to denote profoundly sacred themes and religious practices.
"Take the most famous use of consecrate. Lincoln at Gettysburg, dedicating a national cemetery: 'We can not consecrate -- we can not hallow this ground. The brave men, living and dead, who struggled here, have consecrated it...' Lincoln's meaning was unmistakably spiritual: consecrate and hallow are synonyms meaning 'to make holy.'
"It's unlikely that the proposers of this amendment, or those representatives who voted for it, intended to treat the nation's flag as a religious symbol. But that is what that word desecration does. Although I stand with Justice Antonin Scalia in upholding the right of professional infuriators to mock or even destroy the symbols of our nationhood, my political opinion has no place in a language column. Here, I defend only the words we use from having their meanings confused.
"If two-thirds of the Senate is determined to go ahead with this, it should change the physical desecration of to something like 'the ostentatious destruction or mockery of' or 'the outrageous disrespect for.' Then get the House to agree to change its bill to correct the error."
Superb analysis by Mr. Mendelsohn (whom I unfortunately have not yet had
the pleasure to meet).
It rings like the Italian Symphony to my ears.
Thanks for the discussion.
Having commented on the contribution by Steve Mendelsohn, I now want to add an observation on the Safire article:
I have always liked reading William Safire's essays. It is fascinating that he picks up on the religious connotations of the word "desecrate", and although he does not mention this directly, I believe he is conveying the obvious implication that the religious neocons are one important support base for this absurd movement to ban flag burning.
Here is a verbose (...sorry) commentary from me in reply. My word of the day is the latin word "Fanum" "Profanus in Latin means literally one who is condemned to stand "outside in front of (Latin, pro)the temple (Latin fanum)."The
original profani were heathen scum not permitted within the sacred
confines of the inner holy of holies because they were non-believers or had stained themselves with the taint of other pagan shenanigans. The kind of low language such ruffians were likely to speak was, of course,profanitas, profanity, just as those who uttered it were profane.
If you lingered by the sacred portals too long and blathered religious twaddle, you were said to be fanatic, a word coined (from the same Latin root) in England in the middle of the 16th century. Nowadays you might have your own religious television show and coax "love offerings" out of innocent, sclerotic, cross-clutching grannies to finance your "foreign mission work" at that hotel chain you own in Fiji.
No doubt many neocons would have us believe that flag-burners and speakers of profane language are condemning themselves to the same fires of hell, I have come to suspect however that that "mainstream" (majority) of American society--the neocons-- are themselves fanatics.
Recent actions by US government and those Americans who support these actions---such as halting the investigation of the 9-11 disaster and hiding/destroying evidence, or trying to ban flag-burnining--- fly in the face of common logic. But once we understand that logic is not useful against fanaticism, we begin to see why common sense and logic are not effective in convincing the people. The people are under the trance of government and religious propaganda, and I would argue that
the latest movement regarding flag-burning may be part of the rule, rather than the exception. Here are a several examples of how such fanaticism has led to a dysfunctional system in the USA.
The free world may not normally think of the world's most powerful nation as run by a fanatic government. But there are a myriad of arguments to support this view:
POLITICS and POLITICAL MORALITY/ACCOUNTABILITY
1)Unfairly elected US president is caught red-handed after lying and plagiarizing information to justify an unnecessary war that is allowed
to continue with war operations at tremendous cost and casualties. Yet
this president was successfully reelected, while the previous one was nearly impeached (Editorial comment by editor of the bog- Emil Scheller - Clinton was impeached- he was nearly removed - Clinton was the second President to be impeached. The first was Andrew Johnson who also was not removed) for publicly lying about an extra-marital affair.
2) For national presidential elections, each state, district and
community have different rules, regulations, and voting and tallying
equipment, a diversity of methods that eliminates the possibility for a fair and controlled system in which each vote has the same weight and importance. The official reason for failing to implement a common system of voting is apparently to minimize corruption.
3) US Government openly manipulates information disseminated by American mass media, and major networks such as Fox and CNN have been clearly
identified as crossing the line of acceptable journalism, yet no reforms have been implemented voluntarily or under the demand from the public for fair and impartial reporting.
Cont. on next post)
(Cont. from previous post)
4) US Government openly defies the Geneva Convention and tortures
political prisoners systematically, despite the official government
commitment to uphold the standards of this agreement as well as the
sworn oath of every US soldier to abide by its principles.
5) US Government officially (via CIA operations) engages in political assassinations (or failed attempts thereof) of leaders of other nations or even perhaps (historically) in our own nation. Murder is condemned by national and international law, yet appears to be acceptable if implemented officially and covertly.
6) The US Patriot Act which curtails certain constitutional rights (pertaining to free speech, freedom of the press, and right to privacy) was passed by US Congress (almost unanimously in the Senate, by a large majority in the House) in 2001, despite unprecedented restrictions on basic human rights. This act has been allowed to function thanks to US fears about Terrorism and it is even expected to be renewed prior to its
expiration in Dec 2005.
SOCIAL SERVICES
7.) The US is one of the only countries in the free world that offers neither paid nor unpaid maternity leave at the national level. Combined with the unacceptably large percentage of residents who cannot afford or
qualify for medical insurance coverage (not to mention the high costs and awful level of service provided to those insured), this failure to provide support to people at a time of need is unique among "advanced nations".
http://www.usatoday.com/news/health/2005-07-26-maternity-leave_x.htm
8) Failure to fund fundamental services such as public education, and above-mentioned social insurance is in large part due to the large and growing proportion of tax revenue wasted on military budget and operations. This proportion exceeds 20% of our US taxes paid.
ENVIRONMENT and RESOURCES
9) Despite a limited world supply of petroleum and sharply ascending oil prices, automobile manufacturers and the American consumers they supply demand gas-guzzling, obnoxiously large SUV's and trucks.
10) Despite documented evidence of global warming, US government refused to sign the Kyoto treaty, and the research of experts that suggest a critical trend of global warming have been unfairly slandered and unilaterally investigated. Yet Americans infamously use twice and much
energy and generate twice as much garbage per capita as citizens of
other advanced countries in Europe or Asia.
11) Environmentally and Aesthetically unacceptable levels of toxic,chemical, and air pollution in New Jersey and other states have been hotly debated for decades, but neither local governments, local taxpayers, or the industries that have contributed to the pollution have
made significant efforts to clean up areas such as Elizabeth NJ,
Savannah SC, or Hanford WA. People drive through such areas daily,
rolling up their windows and accepting such abominable conditions as unavoidable.
(Cont. on next post)
(Cont. from last post)
TECHNOLOGY AND ECONOMY
12) Although the fundamental technologies concerning internet,
broadband, fiber optic transmission, and wireless networks were all invented in the USA, citizens in Europe and USA are privy to products and services that are often 2 or more years advanced in quality and convenience compared to anything available to consumers in America. For example, in my home, I have had 100Mb/sec internet access available for a reasonable price (similar services are available from at least 4 different providers), and I have enjoyed such service for 3 years now. In contrast, residents of New York and New Jersey can finally have 2 to
10 Mb/sec access, available from 1 or 2 providers only since last year.
Fiber Optic high speed service remains an unfulfilled dream, no thanks to the efficiency of America's market economy. Similar is the state of industries concerning nearly every type of high tech consumer product,
including electronics and automobiles, where since WWII American industry has fallen from innovator to leader to follower to "financially endangered basket case".
SOCIETY AND CULTURE
13) American diets are so unhealthy that over 1/2 of the adult
population (65%) may be considered obese or fat.
(http://www.cdc.gov/nchs/products/pubs/pubd/hestats/obese/obse99.htm)
Ironically, the American public are obsessed with low fat food products,
many of which are marketed as "healthy", yet simply substitute natural oil/fat content with sugars or other non-beneficial ingredients.
Meanwhile, the nutritional value of the American diet is so poor that
children are recommended to take supplemental multivitamins.
14) American display stickers on their cars that proclaim "Support Our Troops", which imply the imperative connotation, "YOU MUST Support Our Troops" or "You are un-American unless you Support Our Troops". Such McCarthy-istic and blindly chauvinistic cultural undertones belie deep-set insecurities of the national psyche and are potentially dangerous to a free society.
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