Bad Arguments Against Bad Amendments

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I'm no fan of the flag-burning amendment Congress just tried to pass, but Senator Robert Byrd (D-WV) has a very strange argument against it. He says the amendment flies in the face of 1st Amendment freedom of speech. Well, yes, at least on standard readings of the 1st Amendment. I do think burning a flag is a stupid and wasteful way to make any point, but I think free speech has enough value that those who think they're saying something by burning a flag should be allowed to do so. But my reasoning for this is based on the value of free speech. It's not based on the first amendment. It makes no sense to argue against amending the Constitution by appealing to the Constitution. Byrd's complaint would be like arguing against the repeal of Prohibition by saying that Prohibition was in the Constitution. The 21st Amendment most definitely flies in the face of the 18th. But then that was the point. So too with this. Of course it flies in the face of something that its goal is to limit. I liked what Byrd had to say about why the gay marriage amendment was stupid, and I think there are similar arguments that work here, but this particular argument is pretty lame.

Most of the other things he says in this speech are ok, but I have to note another mistake that Senator Leahy also made recently. Senator Byrd at least acknowledges one amendment that limited individual freedom (the 13th), but he misses several of the others I listed in the above-linked post, most notably Prohibition. Perhaps he just meant currently valid amendments. Still, I think the others I listed are most plausibly taken as limitations on individual rights (notwithstanding some commenters' arguments to the contrary).

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On the other hand, according to the standard interpretation of the First Amendment (which you, me, Senator Byrd, and the Supreme Court all seem to share), the flag burning amendment would have been a partial repeal of the First Amendment, and to ignore this is just as manipulative as to exaggerate it (e.g. by claiming that it is a complete repeal, or making unjustified 'slippery slope' arguments). Perhaps Senator Byrd was simply not communicating clearly.

But my reasoning for this is based on the value of free speech. It's not based on the first amendment. It makes no sense to argue against amending the Constitution by appealing to the Constitution. Byrd's complaint would be like arguing against the repeal of Prohibition by saying that Prohibition was in the Constitution.

You forget your Burke and general principles of Conservatism here. Being that the First Amendment is the oldest amendment that has stood a long test of time we are wise to be very skeptical of changing it. We are wise to demand that any proposal for altering the first be meet with not just good reasons but fantastic reasons.

Prohibition and its repeal were serious amendments too and both should have been thought through carefully before adopted but the fact remains they were not making a change to one of the older aspects of our Constitution.

Suppose someone had an amendment that said "Everything besides this in the Constitution is now trashed, we shall have an Emperor of unlimited power choosen in a manner consistent with the Roman Emperors of old". Would it be wrong to point out that such a change would impact the oldest and most cherished parts of our Constitution?

It wouldn't be wrong, but it smacks of "but this is always how we've done it". That's no moral argument. The moral argument is that good policy dictates the change or dictates not changing. Arguing that it goes against some rule merely on the grounds that it is a rule just misses the point of what good governing is about. Good governing is about recognizing when rules are good and when not.

I agree Jeremy but knowing whether or not a rule is good or not is very hard and we are likely to make many mistakes. Burke argued, very well, IMO, that long standing rules should have a presumption in their favor. In other words you should not change a long standing rule unless you have made a dynamite argument that it needs to be changed and even then you should be careful.

Yes, but then you're back to where I said we should be -- looking at whether the argument for changing it is a good argument. In this case, I happen to think it's not.

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