29 June 2006

Dick Durbin's flag rhetoric is a desecration of logic

I just happen to believe that, as our nation’s symbol, the flag is one of those things over which the nation—in Congress assembled—has jurisdiction.  A move by Congress to prohibit desecration of the flag just does not strike me as some sort of wound to freedom of expression.  You don’t lose your freedom of expression just because a limit has been specified.  In marriage, for example, counselors do not, so far as I know, advise their clients never to argue.  They do, however, advise clients to have what might be called a “no man’s land” for any argument.  There are some places where reasonable people agree not to go.  To me it has always seemed reasonable (even when I was of no sort of rightist persuasion) that those of us who are citizens of this nation recognize certain limits to how we go about expressing ourselves.  For example, I wouldn’t extend my middle finger to express my disagreement with a liberal over some issue.  I see no constitutional problem for Congress to say that, of all things, the flag is off limits.  And furthermore people who burn the flag to express some sort of displeasure with any U.S. policy have to my mind demonstrated their unwillingness to engage in civilized behavior.  One of those behaviors is debate.  To my mind one who burns the flag has run out of arguments (and probably didn’t have one to begin with) and forfeited.

Burn the flag if you want to.  But you lost the privilege of being listened to.

That said Dick Durbin has put himself on my radar scope again with remark he has made about the flag-burning amendment.

The text of S. J. RES. 12 reads as follows:


Proposing an amendment to the Constitution of the United States authorizing Congress to prohibit the physical desecration of the flag of the United States.

Resolved by the Senate and House of Representatives of the United States of America in Congress assembled (two-thirds of each House concurring therein), That the following article is proposed as an amendment to the Constitution of the United States, which shall be valid to all intents and purposes as part of the Constitution when ratified by the legislatures of three-fourths of the several States within 7 years after the date of its submission by the Congress:

Article --
“The Congress shall have power to prohibit the physical desecration of the flag of the United States.”

One would think it an easy thing for a senator to present a simple argument against our having such an amendment to the Constitution.  And I mean an argument, even if that argument were something like, “We ought not empower  Congress to stifle a mode of expressing dissent.”  (Note the “framing” of the discussion here: “expression of dissent” as opposed to “desecration of our nation’s symbol.”)

I mean these are senators for crying out loud.  We should expect a deliberative body to deliberate, which ought to employ logic applied to facts.

That’s what we should expect.  What we actually get is something like the excrement which oozed from the mouth of Senator Dick Durbin (D – Ill.).  Samples of that excrement include:

Sample 1:  “There are scarcely any instances across America where people are burning the flag. And yet, now we want to set aside the important business of the Senate, health care and energy policy and education and debate for an entire week this concept of amending our Bill of Rights" (source).

Consider the logic of this position:  If an event “scarcely” happens, then Congress need not work on any legislation about it.  So if there were “scarcely” any instances of tax evasion, we would be justified in insisting that Congress not pass any legislation regarding tax evasion, right?  Of course, it’s funny—his using the word scarcely.  There are “scarcely any instances” of flag-burning; so he want’s to do nothing about it.  On the other hand, one could hardly argue that there are “scarcely any instances” of people violating our immigration laws.  His support of a bill which would do nothing—by all accounts—to stem the tide of immigration seems a bit inconsistent with the notion that Congress ought to deal with the non-scarce.  Then there’s the whole “we-can’t-take-a-week-from-health-care-energy-and-education-to-deal-with-flag-burning” thing.  And since, on my view, Congress’ meddling in health care, energy policy and education—for over fifty years!—has yet to yield a positive result, I don’t care if they never get back to work on those issues.  Finally, I suspect that Durbin doesn’t so much mind if the Bill of Rights is amended just so long as it’s amended by a liberal-dominated Supreme Court.

Sample 2:  “We are here because the White House and the congressional Republican leadership are nervous about the upcoming elections. They want to exploit America's patriotism for their gain in November. It's the same thing with the gay marriage amendment. It wasn't a priority for America. It's a priority for Karl Rove and the Republican strategists. The real issue here isn't the protection of the flag; it's the protection of the Republican majority. We're not setting out to protect Old Glory. We're setting out to protect old politicians. That's what this is about. Sadly, Republican leaders are forcing this debate so they could accuse some who disagree with them of being unpatriotic and un-American” (source).

Oh, what to say about this sample!  First, Durbin claims—tacitly, of course—the ability to read minds: he knows—just knows—that the Republican leadership are nervous.  Maybe they are, but if I were Dick Durbin I’d be more worried about thinking this is my best argument against the proposed Constitutional amendment.  (I mean, really, does he need to be told that this is ad hominem?)  Second, even if Durbin is correct about the Republican leadership’s motivations, that is irrelevant to the question!

How can it escape a senator’s notice that “the congressional Republican leadership are nervous about the upcoming elections” is no answer to the question, “Shall Congress shall have the power to prohibit the physical desecration of the flag?”  One can affirm both that “the congressional Republican leadership are nervous about the upcoming elections” and that Congress should have the power to prohibit the physical desecration of the flag.”  Clearly, Durbin doesn’t think that protecting Old Glory is something that Congress should have the power to, and this despite the fact that there exists a body of statutory law, created by Congress, governing the proper care and display of Old Glory.  Now, let’s think about this:  Congress, which does not have the power to prohibit the desecration of the flag, somehow has the power to make laws governing its proper display and care.  Think of it: Congress cannot tell us not to desecrate the flag, but can tell us when it fly it at half-mast?  We can burn the flag in protest.  But Congress can tell us that if we fly the at our homes during the night, then there must be adequate light provided so that the flag can be seen in the dark?  If we have the freedom to desecrate the flag, then Congress has no business telling anyone how to fly, or otherwise display the flag.  I wonder if Durbin even knows that 4 U.S.C. even exists and hasn’t been repealed.

Here is a brief summary of the history of 4 U.S.C.:  Adopted by the National Flag Conference, Washington, D.C., June 14-15, 1923, and Revised and Endorsed by the Second National Flag Conference, Washington, D.C., May 15, 1924. Revised and adopted at P.L. 623, 77th Congress, Second Session, June 22, 1942; as Amended by P.L. 829, 77th Congress, Second Session, December 22, 1942; P.L. 107 83rd Congress, 1st Session, July 9, 1953; P.L. 396, 83rd Congress, Second Session, June 14, 1954; P.L. 363, 90th Congress, Second Session, June 28, 1968; P.L. 344, 94th Congress, Second Session, July 7, 1976; P.L. 322, 103rd Congress, Second Session, September 13, 1994; P.L. 225, 105th Congress, Second Session, August 12, 1998; and P.L. 80, 106th Congress, First Session, October 25, 1999.

Notice some of the dates.  June 1942?  Goodness!  That was only six months after the attack on Pearl Harbor!  June 22?  Why that’s fifteen days after the Japanese invaded the Aleutian Islands?  And what did Congress do about it?  Nothing.  The Japanese occupied the islands of  Kiska and Attu for over a year, but Congress found time to worry about the flag!  And June 28,  1968?  With our  troops in Vietnam six months into The Tet Offensive?  I just can’t believe this.

Surely Congress had better things to do during World War II and the Vietnam War than bothering about legislation regarding the proper care and display of the flag of The United States of America.  If only Dick Durbin had been there.


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James Frank Solís
Former soldier (USA). Graduate-level educated. Married 26 years. Texas ex-patriate. Ruling elder in the Presbyterian Church in America.
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