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[ronito]

So it looks like we're looking at another flag burning admendment.

http://www.pfaw.org/pfaw/general/default.aspx?oid=11991

I think that there really isn't a huge rash of people running around and burning flags, so do we really need a whole freakin' admendment for it? As much as I personally wouldn't burn a flag, this seems a bit like overkill. Seems like more free publicity for a few congressmen than anything else.

Your thoughts?

 

[evil solrac v3.0]

So it looks like we're looking at another flag burning admendment.

http://www.pfaw.org/pfaw/general/default.aspx?oid=11991

I think that there really isn't a huge rash of people running around and burning flags, so do we really need a whole freakin' admendment for it? As much as I personally wouldn't burn a flag, this seems a bit like overkill. Seems like more free publicity for a few congressmen than anything else.

Your thoughts?

how about flame retardant materials?

 

[Kung Fu Jedi]

Hasn't the Supreme Court already ruled that flag burning is protected under the First Amendment? They'll probably strike this down again I would think.

I agree with you, this does seem like overkill.

 

[ronito]

Yeah, they already said that it was unconstitutional to ban flag burning in 89 or 98 (I forget which). But this would change the constitution so it would be.

 

[Outdoor Miner]

I support this amendment fully.

We cannot continue to have images of our flag burning running on the TV sets of terrorists in and out of America. It will only serve to embolden them...


























and what's inside my pants.

 

[Justin Bailey]

ugh, I can just hear it now:

Sensible person: Not that I would want to burn the American flag, but wouldn't such an amendment go against the first and arguably most important amendment in the Consitution?

Stupid pundit: So what you are saying is that you would support flag burnings?

Sensible person: No, I didn't say that at all, I. . .

Stupid pundit: Because that's rediculous Mr. Sensible person, how can you disgrace the honor of the men and women that have died so you can sit here today?

Sensible person: Actually, I think destroying freedom of speech is doing tha. . .

Stupid pundit: Honestly Mr. Sensible person, I've heard enough. Anyone who supports such an atrocious act against the United States isn't worth listening to anymore. Up next, does Al Qaeda have YOUR phone number? We invesitgate a possible link to telemarketing and TERRORISM.

Sensible person: Bu*cuts to commercial*

 

[JoshuaJSlone]

The day there's an anti-flag burning amendment is the day I'll have reason to burn a flag.

 

[ChrisReid]

When flag burning is outlawed, only outlaws will burn flags.

 

[andthebeatgoeson]

Stop saying that.

 

[GG-Duo]

This amendment calls for kids everywhere to burn flags while they still can.

 

[Phoenix]

This will still be struck down. You can't add an ammendment to curtail the core of the constitution.

 

[Claus]

Does it say anything about eating the flag?

 

[Loki]

This will still be struck down. You can't add an ammendment to curtail the core of the constitution.

Is that true? Not that I'd want them to (particularly not for this issue), but is it truly the case that a legitimately passed amendment can't supersede any of the other core amendments? (I assume you're referring to the Bill of Rights?) Is this explicitly stated in the Constitution somewhere, or is it just the general consensus among legal scholars?


My understanding of Constitutional law is somewhat lacking.

 

[Guileless]

An amendment to the Constitution cannot be struck down as unconstitutional; it becomes part of the Constitution. If that were not the case, then many of the present amendments would be null and void because they directly contradict the original text (e.g. voting age, direct election of senators, etc.)

Edit: It's never happened before, but I guess you can't say it never will. The very foundation of the Supreme Court's power--judicial review, or its power to invalidate legislation as "unconstitutional"--isn't in the Constitution. The Court invented it in a decision and everybody went along with it. So it's conceivable that if there were an amendement that significantly altered what the court considered a core precept of the Constitution, like due process (which is exremely unlikely that it would make it past the amendemtn process but just consider it for the sake of argument) then the court might fashion a new argument about its power to invalidate amendments that contradict the structure of the document.

They haven't been shy about finding unenumerated rights and powers in the text before.

 

[maharg]

What would even define the core of the constitution? I mean, the actual rights people enjoy were mostly not in the constitution itself, they were the first ten amendments. Which is the core? The document itself, the bill of rights, or both?

This is news to me, if true.

 

[Phoenix]

What would even define the core of the constitution? I mean, the actual rights people enjoy were mostly not in the constitution itself, they were the first ten amendments. Which is the core? The document itself, the bill of rights, or both?

This is news to me, if true.

The core of the constitution is everything in all of its articles and clauses that comes before the ammendments to the constitution.

 

[maharg]

Well, the right to freedom of expression is the first amendment, so not a part of the 'core constitution' by that definition. Also, several amendments have covered areas in the constitution itself. Including seperating the election of the president and vice president (12th), the establishment of an income tax (16th), and several others already mentioned.

 

[Guileless]

I'm just speculating. Chances are, if the flag burning amendment were succesful, the Court would never even hear a case on it because none would ever make it to that level of review. Any litigant directly arguing against a relevant Constitutional amendment would lose very early in the litigation process and open and shut cases decided by district courts are not chosen by the court for cert. Certainly a district judge is not going to ignore a Constitutional amendment.

 

[Phoenix]

Is that true? Not that I'd want them to (particularly not for this issue), but is it truly the case that a legitimately passed amendment can't supersede any of the other core amendments? (I assume you're referring to the Bill of Rights?) Is this explicitly stated in the Constitution somewhere, or is it just the general consensus among legal scholars?


My understanding of Constitutional law is somewhat lacking.

State constitutional amendments can and ARE overturned. I'm not talking about superseding core amendments, I'm talking about say creating an amendment that would make slavery legal. That would go against the founding fathers concepts of "life, liberty and the pursuit of happiness." There is only one situation where this was even tried - the 18th amendment dealing with prohibition, which was repealed in the 21st.

Now if you're asking if it is possible that it could be voted in that manner - of course. They could make one banning gay marriage, repealing rights of citizens, etc. However, the liklihood of any of these actually being passed is highly unlikely for reasons that are fairly obvious.

 

[Loki]

An amendment to the Constitution cannot be struck down as unconstitutional; it becomes part of the Constitution.

I realize that, but that's not what I was referring to (at least I don't think it was ). In using the term "struck down", are you referring to judicial (USSC) review of an amendment relative to a case being heard? If so, of course I realize that a new amendment can't be struck down as "unconstitutional," since it is itself part of the Constitution.

If that were not the case, then many of the present amendments would be null and void because they directly contradict the original text (e.g. voting age, direct election of senators, etc.)

Yeah, but my question basically boils down to this:


You here admit that some amendments contradict the "original text" of the Constitution as defined in the various articles. I'm with you so far. These amendments then become part of the Constitution itself, as you said above. Why, then, precisely, can't a subsequent amendment supersede a previous one, since those previous amendments are considered a "part" of the Constitution just as the original articles (which were modified by way of amendment) were?


In other words, would it be possible, say, to pass an amendment permitting "cruel and unusual punishment" (as ambiguous as that term is) despite the fact that it is expressly forbidden by the Eighth Amendment? If not, then why is that so, when you noted that the original text of the Constitution was already contradicted, in essence, via the amendment process? Again, I'm just curious as to what the legal distinctions are here.


EDIT:

Well, the right to freedom of expression is the first amendment, so not a part of the 'core constitution' by that definition. Also, several amendments have covered areas in the constitution itself. Including seperating the election of the president and vice president (12th), the establishment of an income tax (16th), and several others already mentioned.

Exactly; this is the sort of thing that initially made me curious about Phoenix's comment.

 

[Phoenix]

I'm just speculating. Chances are, if the flag burning amendment were succesful, the Court would never even hear a case on it because none would ever make it to that level of review. Any litigant directly arguing against a relevant Constitutional amendment would lose very early in the litigation process and open and shut cases decided by district courts are not chosen by the court for cert. Certainly a district judge is not going to ignore a Constitutional amendment.

Not really. You might want to look at the various cases related to prohibition and the various dancing and dodging various judges did at all levels.

 

[whytemyke]

ugh, I can just hear it now:

Sensible person: Not that I would want to burn the American flag, but wouldn't such an amendment go against the first and arguably most important amendment in the Consitution?

Stupid pundit: So what you are saying is that you would support flag burnings?

Sensible person: No, I didn't say that at all, I. . .

Stupid pundit: Because that's rediculous Mr. Sensible person, how can you disgrace the honor of the men and women that have died so you can sit here today?

Sensible person: Actually, I think destroying freedom of speech is doing tha. . .

Stupid pundit: Honestly Mr. Sensible person, I've heard enough. Anyone who supports such an atrocious act against the United States isn't worth listening to anymore. Up next, does Al Qaeda have YOUR phone number? We invesitgate a possible link to telemarketing and TERRORISM.

Sensible person: Bu*cuts to commercial*

Bill O'Reilly will sue you for not citing him as the source of this.

Anyways, yeah, this won't pass. You're talking about changing the Constitution, and that's nearly fucking impossible. Having EVERY SINGLE STATE vote and agree on the same thing? Right. I'm sure.

This would be horribly impudent of Bush to try this, though, if he has any wishes to attempt to run the table on his anti-gay agenda. If this passes, the dems are gonna say "no way, we already gave you a pass" and if it doesn't, the people will wonder what the fuck is up with this guy and why he's trying to hard to change the Constitution.

Well, maybe the people won't think that automatically, but I'm sure after enough commericals, the truth will sink in as the propaganda machines take effect.

 

[maharg]

In other words, would it be possible, say, to pass an amendment permitting "cruel and unusual punishment" (as ambiguous as that term is) despite the fact that it is expressly forbidden by the Eighth Amendment? If not, then why is that so, when you noted that the original text of the Constitution was already contradicted, in essence, via the amendment process? Again, I'm just curious as to what the legal distinctions are here.

As Pheonix pointed out, this actually happened with the 18th and 21st. Prohibition was established and then explicitly repealed (wording was pretty much "the 18th amendment is hereby appealed") in part (allowing for states to decide for themselves). Whether prohibition actually violates any rights explicitly granted by the constitution before it is maybe questionable, but the rights granted are not limited to those set out in the constitution according to the 9th amendment.

Really, though, prohibition of dangerous goods (namely, other kinds of drugs) has happened since with no need of a constitutional amendment, so it seems to me the use of an amendment there was more about giving it additional force than an actual need to do so.

Anyway, obviously an amendment can repeal another amendment, but an amendment can not be struck down through judicial review simply for disagreeing with a previous amendment or the core document -- amendments exist to do exactly that. The process for repealing an amendment is identical to the process of passing one. The new amendment simply states that the previous amendment is no longer applicable, or directly contradicts its terms.

Anyways, yeah, this won't pass. You're talking about changing the Constitution, and that's nearly fucking impossible. Having EVERY SINGLE STATE vote and agree on the same thing? Right. I'm sure.

Er well the last one was in like 1992 (requiring that salary increases for senators and representatives not take effect until the next election), so it's not impossible even now. However, oddly enough, that amendment was one of the first ones put before the states and took 200 some years to pass. It was actually supposed to be part of the Bill of Rights, the Second Amendment. Doesn't usually take that long, and they usually have time limits these days.

 

[Guileless]

Yes, when I say "struck down" I mean via judicial review by the Supreme Court.

As far as I know (and I did get a C in con law) such an amendment could be passed. As a later amendment, it would supersede and override the language banning cruel and unusual punishment in the Eighth Amendment. The document itself does not place limitations on the content of amendments, it just makes the process very, very difficult.

As Phoenix said, this happened with the prohibition amendment, which was expressly repealed later.

 

[Diablos]

Don't they have more important things to work on to protect us? Burning a flag might be wrong, but you know, if you're out and the worst thing that you encounter is some dude burning a flag, I think you'll survive.

 

[Loki]

Anyway, obviously an amendment can repeal another amendment...

That's as I originally thought, but Phoenix's comments seemed to suggest otherwise, which is what prompted me to ask the question in the first place.

...but an amendment can not be struck down through judicial review simply for disagreeing with a previous amendment or the core document -- amendments exist to do exactly that. The process for repealing an amendment is identical to the process of passing one. The new amendment simply states that the previous amendment is no longer applicable, or directly contradicts its terms

This is also what I originally thought. This seems to be the angle that Guileless was addressing in the first paragraph of post #15, which was directed towards me.


In light of all this, I'm still curious as to what Phoenix meant with his "you can't add an amendment to curtail the core of the constitution" remark. I'm currently in the process of trying to piece together possible explanations from everyone's posts herein (including Phoenix's subsequent posts).

 

[Phoenix]

In light of all this, I'm still curious as to what Phoenix meant with his "you can't add an amendment to curtail the core of the constitution" remark. I'm currently in the process of trying to piece together possible explanations from everyone's posts herein (including Phoenix's subsequent posts).

Practically speaking, you will never pass an amendment that goes against the constitution and the rights that the people believe they have. Any such attempt would be struck down - not by judicial review (as people were assuming I meant - sorry), but in the process of becoming legislation.

 

[Loki]

As far as I know (and I did get a C in con law) such an amendment could be passed. As a later amendment, it would supersede and override the language banning cruel and unusual punishment in the Eighth Amendment. The document itself does not place limitations on the content of amendments, it just makes the process very, very difficult.

As I said to maharg, this is what I had believed to be the case for my entire life. It was Phoenix's original comment ("you can't add an amendment to curtail the core of the constitution") which made me curious as to whether I was mistaken or not.

As Phoenix said, this happened with the prohibition amendment, which was expressly repealed later.

Yes, I understand that, and I understand his (and your) reasoning. However, doesn't his pointing out an example of an amendment superseding a previous amendment directly contradict his earlier remarks? (i.e., "you can't add an amendment to curtail the core of the constitution")


The only way I can reconcile these comments with one another is that perhaps Phoenix is under the impression-- or is perhaps actually correct in thinking-- that the "core" of the Constitution does not include the 18th amendment, while it does include either the BoR or the original articles. This goes back to how one would even go about defining the "core" of the Constitution, which maharg alluded to.

 

[Loki]

Practically speaking, you will never pass an amendment that goes against the constitution and the rights that the people believe they have. Any such attempt would be struck down - not by judicial review (as people were assuming I meant - sorry), but in the process of becoming legislation.

Yes, but this is a question of feasibility as opposed to strict legality, which is what I had believed you were addressing originally with your comment. Seems we're clear, then.

 

[Phoenix]

This goes back to how one would even go about defining the "core" of the Constitution, which maharg alluded to.

The core of the constitution is what it contains without its amendments. It defines what the country is, how we operate and what we expect from an operational perspective. For example "Clause 1: The executive Power shall be vested in a President of the United States of America. He shall hold his Office during the Term of four Years, and, together with the Vice President, chosen for the same Term, be elected, as follows...". This is at the core of the constitution - that we have a president that has a VP each with a term of 4 years.

A president wanting to be a 'president for life' or passing such an amendment would go against the core of our constitution. It would be alien/foreign to our national identity.

 

[Loki]

The core of the constitution is what it contains without its amendments. It defines what the country is, how we operate and what we expect from an operational perspective. For example "Clause 1: The executive Power shall be vested in a President of the United States of America. He shall hold his Office during the Term of four Years, and, together with the Vice President, chosen for the same Term, be elected, as follows...". This is at the core of the constitution - that we have a president that has a VP each with a term of 4 years.

A president wanting to be a 'president for life' or passing such an amendment would go against the core of our constitution. It would be alien/foreign to our national identity.

I understand. And, obviously, the strictest and most sensible definition of the "core" of the Constitution would be the original articles sans amendments. We're in agreement. The problem arose because the amendment in question would not seem to be going against the core document (as we've defined it), but rather against the BoR-- specifically the First Amendment; in response to this proposed amendment prohibiting flag-burning, you made the comment that "[it] will still be struck down. You can't add an amendment to curtail the core of the constitution."


So, since flag burning is considered a manner of political expression and is thus protected by the First Amendment (which is the only part of the Constitution that such notions of scope of expression are germane to, to my knowledge), it seemed that you were implying that either the First Amendment (and hence the BoR) was a part of the "core" of the Constitution you mentioned, or that-- in general-- an amendment could not supersede a previous amendment, which I had always known was mistaken (and which you and maharg pointed out with the examples you cited). Your statement contradicted the understanding of the situation that I always had, and that's what prompted me to ask the question in the first place.


It has since been clarified that you did not mean that such a situation was illegal, but rather that it would be highly unlikely to come to pass due to practical concerns (which I agree with). Like I said, we're all cleared up now.

 

[Phoenix]

Not necessarily - lets just say in con law there is a lot of power in these words

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

 

[maharg]

Well, I wouldn't say that over an indefinite time period, such mutation of the core values of the constitution is impossible or even unlikely. The romans (always a good example of certain ideals going to the dogs) had a deep aversion to Kings and other dictatorial systems, but eventually they did fall to a dictatorial system that maintained the appearances of its former system. The Ceasars were never called Kings except by political dissidents who were marginalized.

The ways of people who want to userp power are subtle, and while an amendment that explicitly called for a dictator for life is extremely unlikely, the threat of such a transfer of power can't be ignored.

 

[Loki]

The romans (always a good example of certain ideals going to the dogs)

:lol

How true...

 

[Hitokage]

The very foundation of the Supreme Court's power--judicial review, or its power to invalidate legislation as "unconstitutional"--isn't in the Constitution. The Court invented it in a decision and everybody went along with it.

They didn't just invent it. It was the logical extension of the situation they were given: that American law was put forth in a stratified manner and they are left to decide which rule stands if laws contradict. Accordingly, the constitution trumps all and thus if a law contradicts the supreme law of the land it is considered null and void. It's not explicitly in the constitution, but it's inferred by it.

Of course, the constitution leaves itself open to interpetation in a lot of matters, so what the "supreme law of the land" represents is often up for interpetation(read: case law, applicability) unless an amendment explicitly defines one.

 

[Dilbert]

House Approves Flag-Burning Amendment

By LAURIE KELLMAN

The House on Wednesday approved a constitutional amendment that would give Congress the power to ban desecration of the American flag, a measure that for the first time stands a chance of passing the Senate as well.

By a 286-130 vote — eight more than needed — House members approved the amendment after a debate over whether such a ban would uphold or run afoul of the Constitution's free-speech protections.

Approval of two-thirds of the lawmakers present was required to send the bill on to the Senate, where activists on both sides say it stands the best chance of passage in years. If the amendment is approved in that chamber by a two-thirds vote, it would then move to the states for ratification.

Supporters said the measure reflected patriotism that deepened after the Sept. 11, 2001 terrorist attacks, and they accused detractors of being out of touch with public sentiment.

"Ask the men and women who stood on top of the (World) Trade Center," said Rep. Randy (Duke) Cunningham, R-Calif. "Ask them and they will tell you: pass this amendment."

But Rep. Jerrold Nadler (news, bio, voting record), D-N.Y., said, "If the flag needs protection at all, it needs protection from members of Congress who value the symbol more than the freedoms that the flag represents."

The measure was designed to overturn a 1989 decision by the Supreme Court, which ruled 5-4 that flag burning was a protected free-speech right. That ruling threw out a 1968 federal statute and flag-protection laws in 48 states. The law was a response to anti-Vietnam war protesters setting fire to the American flag at their demonstrations.

The proposed one-line amendment to the Constitution reads, "The Congress shall have power to prohibit the physical desecration of the flag of the United States." For the language to be added to the Constitution, it must be approved not only by two-thirds of each chamber but also by 38 states within seven years.

Each time the proposed amendment has come to the House floor, it has reached the required two-thirds majority. But the measure has always died in the Senate, falling short of the 67 votes needed. The last time the Senate took up the amendment was in 2000, when it failed 63-37.

But last year's elections gave Republicans a four-seat pickup in the Senate, and now proponents and critics alike say the amendment stands within a vote or two of reaching the two-thirds requirement in that chamber.

By most counts, 65 current senators have voted for or said they intend to support the amendment, two shy of the crucial tally. More than a quarter of current senators were not members of that chamber during the last vote.

The Senate is expected to consider the measure after the July 4th holiday.

I seriously do NOT understand how anyone can be in favor of this amendment.

 

[bob_arctor]

MAKE EVERY FLAG OUT OF NON-FLAMMABLE MATERIAL!

 

[evil solrac v3.0]

MAKE EVERY FLAG OUT OF NON-FLAMMABLE MATERIAL!

I SAID THAT ALREADY!!! lets use jet fuel. that'll burn nice and hot.

 

[Hitokage]

Even better, lace the flag fabric with copious amounts of magnesium...

..then give it to the House.

 

[GG-Duo]

X + 911 = Shut up!

 

[Willco]

If this amendment goes through it'll be 9/11 times a 1,000! That's right - 911,000!

 

[Dan]

I seriously do NOT understand how anyone can be in favor of this amendment.

Holy fuck, this is actually going somewhere? I assumed this was just one of the many retarded bills and amendments that float around unsupported. Crikey.

 

[Loki]

Even better, lace the flag fabric with copious amounts of magnesium...

..then give it to the House.

Dude, they're already blind-- the magnesium would just be overkill.

 

[FoneBone]

Sometimes I almost feel like we need a fucking revolution.

 

[WedgeX]

Oh the irony of prohibiting the burning of a symbol of liberty and freedom.