Category Archives: Constitution

Nothing demonstrates the differences in Americans’ worldviews more vividly than disagreements over periodic efforts to ban flag “desecration.”

 

Many officeholders who are currently promoting this effort are, of course, doing so cynically, in a frantic effort to change the national dialogue and divert attention from a government that looks more dysfunctional every day. But many people support a constitutional amendment out of a sincere belief that such a move would demonstrate respect for the country and recognize the sacrifices so many of our soldiers have made over the years.

 

Many, if not most, of the amendment’s supporters readily acknowledge that flag-burnings are rare (according to the numbers I’ve seen, there have been fewer than 45 documented cases in the last half-century). Some of them will even concede that the passage of such an amendment is likely to spur more such acts of defiance rather than reducing that already low number. But putting a halt to some epidemic of civil disrespect is not the point; supporters don’t want to control social behavior, they want to send a “patriotic message.”

 

Those of us who look at this proposal with dismay are not—as the Ann Coulters of the world insist—traitors, terrorists or anti-American provocateurs. Actually, we believe we are the real patriots. We just define patriotism differently.

 

The United States Constitution and Bill of Rights gave America the best, most workable, most enlightened governing structure yet devised. Certainly, it is the system most respectful of individual dignity and autonomy. The flag—the cloth emblem that legend tells us was devised by Betsy Ross—is a physical symbol of that system. People honor the flag by respecting the Constitution, and they desecrate it when they elevate the piece of cloth over the principles and values that make it worthy of respect.

 

When we approve government actions inconsistent with our most basic governing premises, we are desecrating the flag.

 

When those we elect to high office routinely ignore the foundations of republican government—separation of powers, accountability, the insistence that—as John Adams put it—we are “a government of laws, not men,” they are desecrating the flag.

 

When our lawmakers intrude in areas that are simply no business of the government, whether it’s Congress insisting that fourteen state court decisions have been wrong, and Terry Schaivo’s feeding tube cannot be disconnected, or South Dakota lawmakers deciding that it is their place to criminalize a woman’s decision to terminate a pregnancy, or a Pennsylvania school board deciding that their religion should be taught in lieu of science in public school classrooms, those lawmakers are desecrating the flag.

 

A President who unilaterally designates people as “enemy combatants” and imprisons them indefinitely without permitting review of that designation by the courts, or who issues “signing statements” declaring that he has no obligation to comply with acts of Congress he doesn’t like, is desecrating the flag.

 

I have a radical suggestion: let’s honor the flag by insisting that our elected officials respect the Constitution it symbolizes. 

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In March, the Maryland legislature held a hearing on the state’s proposed constitutional amendment prohibiting gay marriage. Jamin Raskin, professor of law at American University—a noted constitutional scholar—had been invited to testify. When he concluded his remarks, Republican Senator Nancy Jacobs said: "Mr. Raskin, my Bible says marriage is only between a man and a woman. What do you have to say about that?"

Raskin replied, "Senator, when you took your oath of office, you placed your hand on the Bible and swore to uphold the Constitution. You did not place your hand on the Constitution and swear to uphold the Bible." The room erupted into applause, and the exchange has since circulated widely on the internet.

 

I thought about that story when I saw that the Center for Inquiry is sponsoring Ten Amendments Day. There is a special website—www.tenamendments.org—devoted to the Bill of Rights, with special emphasis on the First Amendment liberties of speech and conscience. The local chapter plans a May 7th event at IUPUI, with a reading of the Ten Amendments, videos on Freedom of Religion and Freedom to Dissent, and a panel discussion.

 

The impetus for Ten Amendments Day was “Ten Commandments Day,” an effort by Christian Right groups to rally support for posting the Ten Commandments in government buildings. Such postings would require amending the First Amendment, since the Establishment Clause forbids government endorsement or promotion of religion.

 

Whatever the reason, Ten Amendments Day is a great idea. Too few Americans know much early American history; fewer still have ever read the Constitution or the Bill of Rights, or the Federalist Papers and the arguments for and against the addition of a Bill of Rights to America’s constitution. Without that background, it is impossible to appreciate how radically America’s constitutional system changed what was then thought to be the natural order of things.

 

Before the United States, the right of a government to exercise authority over its individual subjects was taken for granted—indeed, it was thought to be divinely ordained. America’s Founders asked audacious, previously unimaginable questions: what is the proper role of the state? What are the limits of its legitimate authority? Do individual citizens have rights that governments must respect? If so, what are those rights?

 

Democratic processes are important, but America was not originally conceived as a democracy as we currently understand that term. The emphasis was on individual liberty, and the creation of checks and balances intended to limit the reach of official power. As important as many other governing innovations were, and have been, the real genius of the “American experiment” was this recognition that government’s power over the individual conscience must be limited—that the important question was not “who is right and who is wrong” but “who gets to decide.”    

 

Raskin’s riposte went to the heart of that important truth: Americans consult a wide variety of holy and inspirational texts for moral guidance, but we all pledge to uphold the same Ten Amendments.   

 

 

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I hate to get cranky, but I think a lot of us are forgetting what America is all about.

Repeat after me: our constitution wasn’t designed for cowards. The Founders didn’t protect our right to say what we think because they believed we would all mouth non-offensive proprieties. They didn’t insist on our right to pray (or not) as we choose because they were confident we would all agree about the nature of Ultimate Truth. And they didn’t insist that government show a darn good reason to search or detain us because they were sure we wouldn’t ever have anything to hide.

They protected liberty because they valued it for its own sake—not because it was safe.

In fact, they were well aware that liberty isn’t safe. Freedom is dangerous, and those who drafted the Bill of Rights knew that. They just believed that a government with the power to decide what ideas may be expressed, or what prayers must be said (and to whose gods) is much more dangerous. They were willing to risk political, scientific and religious debate—just as they were willing to take the risks of a market economy. No risk, no reward.

We’ve come a long way, baby—to weenie land, apparently. Recent headlines paint a depressing picture of a society increasingly afraid to entertain different ideas or consider evidence inconsistent with our preferred realities.

In New Mexico, a nurse with the Veterans Administration is being investigated for sedition—sedition!—because she wrote a letter to the editor criticizing George W. Bush and advocating withdrawal from Iraq. The letter was signed in her private capacity as a citizen, written on her own time, on her own stationery. She has been a VA clinical nurse specialist for sixteen years; she is now refusing to give interviews and is reportedly terrified that she will lose her job.

In Washington, a thirty-six-year veteran of the Congressional Research Agency who is widely considered the most eminent living scholar of Separation of Powers has been told to “apologize” and threatened with loss of his position in the wake of a research report disputing Presidential authority to ignore Congress and engage in unchecked surveillance of Americans’ communications. This is an individual who has served with distinction under Republican and Democratic Administrations alike.

At NASA, in one widely reported incident, an expert on global warming was ordered to modify a scientific paper posted to the agency’s website. In another, five researchers from CalTech who published a report on “Potential Environmental Impact of a Hydrogen Economy” abruptly had a planned NASA conference cancelled, reportedly by the White House Office of Science and Technology Policy, and further funding for this research has been cut off.

Perhaps—before we make too many self-righteous comparisons between our own devotion to “liberty” and the Islamists violent reaction to Danish cartoons—we should take a good hard look in the mirror. That isn’t James Madison looking back. In fact, it bears a striking resemblance to Joe McCarthy.

 

 

 

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Remember high-school government class, and the textbook explanation of how a bill becomes law? Congress drafts legislation which it sends to the President. If the President vetoes it, it fails, unless Congress has enough votes to override the veto. If the President signs the legislation, he issues a press release, hands out commemorative pens, and the bill becomes law.

 

Or maybe not.

 

As the media often notes, President Bush has never used his veto. As it turns out, his administration has instead acted upon advice given to then-President Reagan by a young lawyer named Samuel Alito, and simply avoided that pesky “checks and balances” thing that the Founders were so hung up on. They have used something called a “signing statement,” and it works like this: when Congress passes a bill the President doesn’t like, he goes ahead and signs it. But along with the usual (publicly distributed) press release, he issues his own “constitutional interpretation” of the legislation.

 

Fair enough; the President takes an oath to uphold the constitution, and if he believes legislation is unconstitutional, he is certainly entitled to say so. In the past, lacking a line-item veto, Presidents have used signing statements when a questionable measure has been attached to an otherwise important bill. More recently, such statements have been used as a not-so-subtle signal to federal agencies about how their boss, the President, wants the law to be interpreted and applied. But it took George W. Bush to take signing statements to a whole new level. He has used them to justify his intention to simply ignore provisions he dislikes, turning the statements into functional equivalents of line-item vetoes—albeit with some nifty added political benefits: the tactic deprives Congress of its constitutional right to override, and keeps most voters from ever noticing.

 

During his first term, Bush issued such statements 108 times. As Philip Cooper, an expert on presidential powers, has written “This tour de force has been carried out in such a systematic and careful fashion that few in Congress, the media, or the scholarly community are aware that anything has happened at all.”

 

We probably still wouldn’t have caught on, but the bill triggering the most recent use of this tactic was the high-profile McCain Amendment, outlawing torture of detainees and strenuously opposed by the Administration. When Bush signed it, he expressed his intent to “construe” the act in a manner consistent with his preferred interpretations of both presidential authority to “protect the American people” and “limits on judicial power.” In other words, he served notice that he will obey the law when—in his sole opinion—it doesn’t get in his way.

 

This is the grown-up version of kids crossing their fingers behind their backs while making a promise. “My fingers were crossed, so it didn’t count!”

 

In America, no one is above the law. Just as basketball players don’t get to decide for themselves whether they’ve committed a foul, even Presidents must obey referees and follow the rules of the game.

 

 

 

 

 

 

 

  

 

 

 

 

 

  

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