Melkor

I know... and I can see what he's trying to say, it's just that that's not how the Constitution works, that's all. He seems to think that unless it's specifically listed, the government can come in and force us into a corner by outlawing basically everything not there.... and that's pretty clearly not the document's intent, particularly when one reads the Ninth and Tenth Amendments.

copernicus

Actually, the Supreme Court is the final interpreter of what constitutional language means. Besides going to the dictionary, you should also take a look at their reasoning on the nature of symbolic political speech. It would make a mockery of our right to free speech if the right were literally limited to just spoken words. Although I personally believe that burning the flag is a stupid tactic, it is a legitimate form of political expression. Don't forget that people had burned things to show their contempt at political rallies long before there was a United States. King George was burned in effigy quite a few times before the Revolution got started.

Ultron

Actually this comes straight from the 9th Amendment, and doesn't preclude my arguement:

"The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people."

Note that right here the enumerated rights should not be construed to deny other rights, the problem is that only those enumerated rights are Constitutionally(federally)-protected ones.

My arguement is that flag-burning is NOT a Constitutionally-protected right, because it is not enumerated there. However that doesn't mean states couldn't have their own flag-burning rights.

So how do we determine which rights have more weight? Those protected by the federal govt, or those protected by state govts?

Well that's where the 10th Amendment comes in:

"The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

We see here a progression of legal importance here. If the federal govt doesn't make a law protecting or restricting something, and the states ALSO don't do the same, the people have those powers.

It grants us federal protections of those rights. The other rights or freedoms are left to the states or to the people.

Everything I've said has come directly from the Constitution as well.

I disagree that it's speech. I certainly agree the act of doing it can be symbolic expression, but it is above all else, literally, and always, the burning of a flag, which literally isn't speech.

Melkor

*sigh*

I can see that this is obviously going nowhere.


All right. You win. 200 years of solid Constitutional Law are obviously completely wrong.

I don't know what I was thinking.

Ut

You still have missed the point. It is irrelevant whether or not flag burning is literally speech. The point is that it is legally speech.

Don't take my word for it, ask the Supreme Court

Mainly:

Clutch

Umm... only if by "uniquely" you mean "like various other countries where it is indeed a much less hysterical issue".

I could burn a Canadian flag every day if I wanted, and while it would annoy the hell out of plenty of codgers, very few people would be absurd enough to assert that I should go to jail for it.

Shadowy Man

Now here's a question that will cook your noodle.

Say that they do pass an amendment that says you can't deface an American Flag. How much does a flag need to look like an American Flag to fall under the amendment?

I mean, what if I had a flag with 6 white stripes, 7 green stripes, and in the corner was a blue square with 50 white stars on it. Can I burn that? It's obviously not an American flag because of the green stripes, but it looks close enough to it that it might offend someone's sensibilities.

Providing the ad absurdum,

Shadowy

Ultron

I said specifically in the analogy there nobody is harmed etc.

"Without harming anyone or burning anything else, does that person have the Constitutionally protected RIGHT to light up the flag there and let it burn?"

So the risk is gone from the scenario.

Again answer the question, is there a Constitutional right to burn that flag there? Or would the local fire codes take precidence over the Constitution? If this is just harmless speech about America, and the flag isn't used to deliberatly hurt anyone, and nobody is hurt by it at all, how would these fire codes possibly infringe on Constitutional rights?

Not a Constitutionally-protected right since it isn't literally protected by any Amendment. That doesn't mean you aren't free to do it. The 9th Amendment says just that.

Let's extend the analogy futher. How about a headless, nude child, just a picture of one, on a sign. Since it's just "speech" - no threat, surely you could parade that down any street, correct?

BTW my answer is no to your above scenario as well, that it's not Constitutionally-protected.

That's not my point at all. My point is how could non-threatening speech, that harms no-one, as well as being Constitutionally-protected "speech" become subserviant to local fire codes? Because it isn't Constitutionally-protected. Again I refer to the heirarchy of law as spelled out in the 10th Amendment.

Ultron

LOL! OK I think we can all agree on that.

I agree.

Agreed.

Agreed.

Dr. Retard

A thought I had about the sacred right to political expression: Imagine any restriction on speech whatsoever -- say, pornographic or racist speech. If a restriction like this gets enacted, then ACLU-type people (like myself) are going to start engaging in this speech, just to protest the restriction. In short, we'll speak lewdly and hatefully, just to make a political point. Which means that, given the existence of people like us, any speech restriction can easily become a restriction on political speech.