Long May She Wave-- And Burn

Good for the Post's Dana Milbank for going beyond the wire copy reports of yesterday's flag-burning debate and vote in the Senate. The reporter and columnist offered readers true insight into the dopeyness of the Congressional effort. It's truly must-reading for anyone who wants to understand why Senate leaders pushed for the vote, and why, ultimately, their efforts to outlaw flag-burning failed by a single vote.

If Milbank's stuff was bright, there was plenty of dimness before, during and after the vote. Here are some of the highlights. Or lowlights. "Old Glory lost today," said Sen. Majority Leader Bill Frist (R-Tenn.), a candidate for president in 2008 and perhaps best known for diagnosing Terri Schiavo's brain condition last year based upon what he saw when he watched her on videotape. "Who gets the final word -- five justices on the Supreme Court or we the people?" Sen. John Cornyn (R-Texas) asked, apparently unaware that the Bill of Rights was designed to require judges to protect the rights of the minority from the tyranny of the majority.

There was more buffoonery. Sen Dianne Feinstein (D-Ca.) showed up on the floor of the Senate with that famous picture of the Marines raising the flag on Iwo Jima-- as if the debate over amending the Constitution was really a debate about the merits of the flag. But there was also political courage. The hero of the day? How about Sen. Daniel Inouye (D-Hawaii), who lost an arm in World War II and received a Medal of Honor for his efforts. "Our country's unique because dissidents have a voice," he said, before voting against the Amendment. Another decorated veteran, Sen. John Kerry (D-Mass.) said that the Constitution protects the rights of Americans to be stupid (enough to burn a flag).

So the grand exercise now is done, the political calculations all laid out in advance of the upcoming election. Even proponents of the Amendment, as Milbank so vividly explains, didn't believe it was a legitimate legislative priority. And of course that says more about the current leadership in Washington than just about anything else Congress has done, or not done, this session. Idiots who burn flags aren't going to destroy America. But hapless politicians just might.

By Andrew Cohen |  June 28, 2006; 9:00 AM ET
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"It's truly must-reading for anyone who wants to understand why Senate leaders pushed for the vote"

So that you would have something else to fill the headlines with, other than Specter's comments and more bad news for the administration...

Watch the birdie...

Posted by: Tim | June 28, 2006 10:04 AM

It should be noted that Congress has addressed the issue of flag burning in another way, in 1976:

PL94-344, section 4(k).
"The Flag, when it is in such condition that it is no longer a fitting emblem for display, should be destroyed in a dignified way, preferably by burning."

It's not the burning that's the real issue, of course, but the meaning intended in the burning. Hence, speech; and hence, the First Amendment.

Posted by: Tom H | June 28, 2006 10:05 AM

Mr. Cohen,

Do you have any education in the Constitution, its framing, and its judicial history? It appears not, since you continue to make such ignorant statements as, "the Bill of Rights was designed to require judges to protect the rights of the minority from the tyranny of the majority."

Nowhere in the original Constitution nor in the Bill of Rights is there any REQUIREMENT that we must depend solely on JUDGES to protect our rights. Why not the Executive? Why not the Legislature? Why not on the States? Why not on ourselves through voting?

The Supreme Court has tried to acquire for itself the exclusive power to rule on the Constitution, but the Constitution itself does not explicitly support this position.

Josh Levy
Charlottesville, VA

Posted by: Josh Levy | June 28, 2006 10:34 AM

Tom H - that is a very insightful point that gets to the very heart of the issue- this is about censoring dissent. I'm of the mind that the "ownership society" should be able to do what they please with the flags they purchase and own, including burning them. Furthermore, I see so many people who probably support this trash ammendment- many of these "9/11 Patriots"- regularly desecrating the flag by flying it unlit at night, or in the rain, or flying tattered and ragged flags, usually on the radio antennas of their cars. What a bunch of foolish hypocrites.

Posted by: Tactical | June 28, 2006 10:36 AM

This has gone way beyond ridiculous. We elected these people and pay them with our hard earned income to do a job. How is it that they find time to discuss banning flag burning and gay marriage when we're at war... when many of the victims of hurricane Katrina are still homeless... when global warming threatens our very existence...(need i go on?)
The only way to describe the actions of this Congress is criminal neglegence!
It's time for a march on Washington!

Posted by: john | June 28, 2006 10:50 AM

Burning or desecrating the flag is a symbolic act. Of course it's political speech. It is precisely the power of this form of political speech that makes the right wing want to ban it. But the true glory of the Constitution of the United States of America is that it protects even extreme acts of political speech. This is the Constitution that our public officials are sworn to preserve, protect, and defend. How ironic and ultimately tragic that they would attempt repeatedly to desecrate the Constitution itself in an even more extreme manner. We'd all be better off if they would confine themselves to merely burning it -- at least its meaning would be unimpaired.

Posted by: patriot in Oregon | June 28, 2006 10:57 AM

Mr. Levy is correct that the original constitution and the Bill of Rights did not specify who would be responsible to ensure its enforcement. However the Supreme Court "acquired" this power for itself in 1803 with the key ruling of Marbury v. Madison. The tradition of Judicial Review, while not enshrined in the constitution itself, has long been a main safeguard of our liberty. It is precisely because the flag burning as a political statement is so unpopular that it needs the courts, who don't need to face the voters, to protect it. I dare say that I would rather live an a country where the flag is burned but the constitution is respected, rather than the other way around.

Marcus Graly
Somerville, MA

Posted by: Marcus Graly | June 28, 2006 10:58 AM

You are a complete IDIOT!

Posted by: Joe | June 28, 2006 11:03 AM

Thanks for the sanity!

Posted by: Everbody | June 28, 2006 11:04 AM

The American Legion and the Veterans of Foreign Wars supported this legistation to protect the flag that we served under and some of us died for.

According to you all, we don't count for sh__!

Posted by: John Harris, Washington, MO | June 28, 2006 11:15 AM

I agree with your comments and would like to add that I have never been so disgusted with my government as I have been over the past several years....as one of your readers said, there are more serious issues for the Washington mob to address but, on second thought, they don't have the backbone or intelligence to move forward on anything of importance. I expect nothing from Washington and that is exactly what I have been getting! We really are desparately in need of a Leader!!!

Posted by: Marcia | June 28, 2006 11:21 AM

This is without a doubt the dumbest and most absurd thing I have ever heard. Thomas Jefferson and the like must be rolling in their graves at the idiotic mentality and false piousness of our current leaders. The flag is a piece of cloth, and if someone burns it, it does nothing to affect you personally unless you are an extremely insecure person. American soldiers didn't die storming the beaches of Normandy for a piece of cloth, they died to prevent authoritarians from stealing our freedoms...which ironically is exactly what this moronic amendment would have done. True patriots realize this, false ones are just wrapped up in symbology...

Posted by: Ben | June 28, 2006 11:32 AM

As Ron White of the 'Blue Comedy Tour' group says; 'I cannot fix stupid.'
(

Posted by: Joe P | June 28, 2006 11:33 AM

Re: American Legion and VFW.
We can't ask those who are not alive about what they died for, but please find me a veteran who fought for the *flag* - not for the country, his unit, his buddies there with him.
And not someone from the rear echalon...

Posted by: Bob Koure | June 28, 2006 12:19 PM

I'm glad Josh Levy read the Constitution. I'm sorry he never read Marbury v. Madison.

Glad sanity prevailed.

Posted by: JR | June 28, 2006 12:21 PM

A hapless Congress that has completely abdocated its oversight responsibilities regarding this administration showed once again that they are more interested in playing politics than attempting to solve serious problems. This is the same Congress who failed to pass, for the tenth year in a row, an increase in the minimum wage, but found the will to give themselves a raise for the ninth year in a row.

Flag burning? Gay marriage? Non-binding after non-binding resolution? It's time to make some serious changes.

John Teague
Greensboro, NC
http://john.eigosoftware.com/blog/

Posted by: J. Teague | June 28, 2006 12:24 PM

The Bill of Rights was designed precisely to protect freedom from democracy. The two-thirds rule was designed to protect the Constitution from excesses of democracy. The founding fathers well-understood the dangers inherent in democracy, which are exactly the sort of demogoguery, impassioned hysteria and witless legislators they forsaw as our necessary plague.

Posted by: Free Man | June 28, 2006 12:58 PM

Personally, I would never burn the flag. . .unless it became illegal to do so. At that point, it would become a legitimate protest against the government attempting to restrict free speech.

Posted by: TJ | June 28, 2006 01:18 PM

To Marcus Graly and JR:

Marbury v. Madison establishes judicial review. It does not establish EXCLUSIVE judicial review. In the 20th century, the Supreme Court has tried to assert a right to exclusive judicial review, but this assertion does not exist in Marbury.

Nonetheless, none of this contradicts my point, which is that Mr. Cohen's idea that the Bill of Rights requires judges to interpret it is pure ignorance. No such requirement exists in the Constitution. Nor does anything in the Constitution, even as it is interpreted by Marbury, give the Court the power to the exclusive or final interpretation of the Constitution.

If anyone is "unaware", as Mr. Cohen writes of Sen. Kyl, it is Mr. Cohen himself.

Posted by: Josh Levy | June 28, 2006 01:28 PM

Hmmm?!? If this does eventually pass I smell profit! I should start a company that makes flags with one point missing from one star. Technically these won't be American flags so you can burn them legally. I figure a lot more people will want to burn flags in protest if it passes. This way you can do it without any legal repercussions. I could even sell flags with a built in ignition system. Just press a button and poof! What do you all think?

Posted by: Ron | June 28, 2006 02:14 PM

Here's the thing about this vague notion of what constitutes patriotism: it's no substitute for putting up with young soldiers getting their arms, legs, and heads blown off. War is justifiable only when all other means are exhausted. Demanding *that* is real patriotism, not demanding an end to the burning of cloth with stripes and stars.

Bill Hicks said "The soldiers didn't die for the flag. The died for what the flag stood for, which was the freedom to burn the f*cking flag. Case f*cking closed."

Here's how my own mother expressed her revulsion at politicians who wrap themselves in the flag: http://slancha.blogspot.com/2006/06/mom-and-dubya.html#links

Posted by: Ozy | June 28, 2006 02:15 PM

In the 6 years since the 'Pro-Family, Pro-Life' Bush administration has been in office, we've never seen a congressional vote on a Constitutional amendment banning abortion. Are gay marriage and flag burning indeed the greatest threats to our country and families? Why aren't conservatives in an uproar? Is this all they get for their fervent support? Wake up Republicans, your party has just as much contempt for you as they do for everybody else.

Posted by: Kurt Merkle | June 28, 2006 02:55 PM

I am convinced that Bill Frist is simply a puppet of the Holllywood elite led by South Park creators Trey Parker and Matt Stone. Whenever they need material they tap Frist and he delivers. I hope someday they will recognize this Congress and especially Frist with a star on the Hollywood Walk of Fame. At least Redstone should have the decency to put Frist on the Viacom board of directors. Frist has done more to promote Comedy Central than any other politician. Someone - maybe Stephen Colbert - should do an investigative report into how Frist is being paid by South Park.

Posted by: johnw | June 28, 2006 03:21 PM

The Bill of Rights was not written to protect nice speech or expression, neighborhood picnics, mainstream religions or politically correct newspapers. The Founders did not want their homes to be invaded, speech and press to be suppressed, protest rallies broken up, homes to be searched without a warrant, sent to prison without a trial, held for an indefinite period of time for a crime that may have included speaking out against an oppressive government. These are the freedoms that men and women have died to protect. These are the freedoms guaranteed by the Constitution. The flag was carried into battle to remind them of why they were risking their lives and to show the enemy who we are. It is a symbol of every good thing America has to offer. It is a symbol of hope and safety to those in danger. I think politicians are using the ignorance of Americans about our Constitution to win the power play. It is a sad day when more Americans can name 5 characters from the Simpsons and cannot name the 5 freedoms that are guaranteed by the Bill of Rights.(and how important they are)Lawmakers - put your money where your mouth is and educate people on the Constitution and the Bill of Rights. Elevate the status of the flag and what it stands for. The flag is a symbol of freedom of speech (expression)press, religion, assembly, petition. Educate them as to what it means to limit free speech against oppressive governments. Is that not why were are at war in Iraq? If you prohibit the small number of public protest flag burings, someone better take a look people who profit from the symbol of freedom and democracy. According to flag etiquette, it is improper to fly multiple flags over car lots, wear it on a shirt, sweater, sports jersey or hat or even place a flag sticker in the window of a car. Doesn't the profit making on the use of a "venerated object" cheapen the image of America? Does anyone have a poll on how many states would actually approve this amendment if it should ever pass?

Posted by: Debra | June 28, 2006 05:30 PM

Mr. Harris, our soldiers and veterans count for everything, despite what you may think, and especially for those of us who lack whatever it takes to join the armed forces. That being said, I would like to think that those who served and who made the ultimate sacrifice did it for their loved ones, for their freedoms, and their way of life. Too often we are becoming more willing to sacrifice those liberties for security or for writing trivialities (and even discrimination) into the Constitution - arguably the greatest document of government ever written. I've been reading some online foreign papers like the Guardian, and their editors and bloggers are perplexed that people are willing to confuse and be confused by a symbol of freedom, and what freedom truly means. Are we so accustomed to freedom that we forget what it means, or that what makes our freedom so precious is that applies to even what we disagree with, and protects the minority from the majority?

I think this comparison says it best: if the Amendment had passed, we would join the company of China, North Korea, Iran and Iraq as the only countries that outlaw flag burning. Our Founding Fathers must be weeping.

Posted by: PK | June 28, 2006 05:54 PM

It would only take an act of congress to change our flag from the Stars and Stripes to, what, gold polka dots on a red background. Then that would be our flag.
It takes successive passages in the congress and ratification of 3/4's of the states to amend the Constitution. ANybody care to debate which is more important to this country?

Posted by: stryker | June 28, 2006 06:22 PM

I'm a decorated combat vet here. I cannot speak for those who gave the ultimate sacrifice now that they are gone. I do know first hand what many of them thought before they did so. Yes we had pride in America, the flag and apple pie...but you can take this to the bank: we fought for each other, the American ideal, for the freedoms that come with being an American: freedom of speech, press, religion, assembly, petition. A suggestion for you politicians...instead of trying to pass this flag amendment, just spit in the face of every american who ever served in uniform or one of the family members who lost a loved one protecting the American ideal. Gutless, opportunistic bunch of morons.

Posted by: E. Kehoe | June 28, 2006 06:36 PM

Mr. Cohen, I actually think I agree with your bottom line, but your snarkiness makes it impossible to agree with your analysis. So I will simply, reluctantly, concur in the judgment.

And hope that the Post comes up with some sort of Fairness Doctrine in law blogging.

Posted by: appell8 | June 28, 2006 11:10 PM

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