In Praise of Ineffective Politicians

David,

But even that bill was passed, even if Trump succeeded to convince the Congress to pass such an Act, it would end up being struck down by the US Supreme Court. I can’t believe that Trump, Clinton, and the senators/rep who supported such Act are unaware of Texas v. Johnson (1989), which invalidated state prohibitions on desecrating the flag because such prohibitions violate the First Amendment.

My comment doesn’t invalidate your main point, which I agree with. However, I find troubling that people who go around talking about respecting the US Constitution don’t understand how their big ideas violate the Constitution.

@Alexandre-

From what I understand, the 2005 bill attempted to forge a middle ground between the SC ruling and the “flag outrage.” It tried to classify only certain kinds of burning, burnings done to incite violence rather than make a political statement,illegal. That may have been enough to pass the Court.

@JonMurphy,

I am no expert but the US Supreme Court decision addressed that issue. The Texas court which was overruled by the US Supreme Court made that argument that burning the flag would incite outrage and was anonymous to incite violence. The non-unanimous decision (I didn’t mention that) argued that was subjective and didn’t addressed other type of flag burning or burning that do the opposite. The dissent opinion tried to argue again that flag burning could incite violence and there was room for government to regulate it.

Ultimately, I doubt the 2005 Act or Trump proposal would pass the Constitutionality test.

Clinton also voted against a the Flag Desecration Amendment in 2006, for what it’s worth, as did Bob Bennett, despite them being the bipartisan duo who introduced the 2005 bill.

Popular lawmaking is a very recent phenomena in human history. Unfortunately, the advent of democracy came with the impulse to “make a law” to tyrannize those who don’t live as the advocated.

But no one, I think, has ever called attention to the enormous differences in living, in business, in political temper between the days (which practically lasted until the last century) when a citizen, a merchant, an employer of labor, or a laboring man, still more a corporation or association and lastly, a man even in his most intimate relations, the husband and the father, well knew the law as familiar law, a law with which he had grown up, and to which he had adapted his life, his marriage, the education of his children, his business career and his entrance into public life — and these days of to-day, when all those doing business under a corporate firm primarily, but also those doing business at all; all owners of property, all employers of labor, all bankers or manufacturers or consumers; all citizens, in their gravest and their least actions, also must look into their newspapers every morning to make sure that the whole law of life has not been changed for them by a statute passed overnight; when not only no lawyer may maintain an office without the most recent day-by-day bulletins on legislation, but may not advise on the simplest proposition of marriage or divorce, of a wife’s share in a husband’s property, of her freedom of contract, without sending not only to his own State legislature, but for the most recent statute of any other State which may have a bearing on the situation.

Thus at first the American people got the notion of law-making; of the making of new law, by legislatures, frequently elected; and in that most radical period of all, from about 1830 to 1860, the time of “isms” and reforms — full of people who wanted to legislate and make the world good by law, with a chance to work in thirty different States — the result has been that the bulk of legislation in this country, in the first half of the last century, is probably one thousandfold the entire law-making of England for the five centuries preceding. And we have by no means got over it yet; probably the output of legislation in this country to-day is as great as it ever was. If any citizen thinks that anything is wrong, he, or she (as it is almost more likely to be), rushes to some legislature to get a new law passed. Absolutely different is this idea from the old English notion of law as something already existing. They have forgotten that completely, and have the modern American notion of law, as a ready-made thing, a thing made to-day to meet the emergency of to-morrow.

–Popular Law-making: A Study of the Origin, History, and Present Tendencies of Law-making by Statute, Frederic J. Stimson (1910)