Law: June 2006 Archives

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).

On NPR this morning, they had a brief segment on the current gay marriage debate. I don't support this amendment, for reasons on at least four levels, most of which I've covered so many times before that I don't want to go into it all again right now. But even if you fully opposed this amendment, it doesn't do to say false or misleading things in order to support that view. Senator Patrick Leahy was quoted on NPR this morning saying that this amendment would be the first time in U.S. history that we would amend the Constitution to limit individual rights. I'm not sure what he's talking about, because I count six times that amdenments have done exactly that.

13th Amendment, Section 1: "Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction."

That sounds to me like a limiting of individual rights. I would have a right to own slaves if the 13th Amendment were not in effect. I do not have such a right due to that amendment. The 13th Amendment thus limits my individual rights.

14th Amendment, Section 3: "No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any state, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any state legislature, or as an executive or judicial officer of any state, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability."

This takes away the individual right to hold certain offices among those who have committed certain offenses. That's an individual right that the amendment removes.



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