Yesterday, the proposed amendment to the Constitution to outlaw flag burning as a form of protest failed. Amending the Constitution requires 67 votes in the Senate to be passed to the states for ratification, and then three fourths of the states must approve it. The amendment got 66 votes.

This is deeply, deeply disturbing. I know, “a win’s a win,” as I remind myself so often while watching the World Cup, but this is a frighteningly close shave on a non-issue that should not have been given serious consideration.

As Jeff noted, constitutional amendments generally provide rights/freedoms and protect citizens from the government. Therefore any amendment that removes a freedom should be very carefully considered. (One amendment removed the freedom of a person to serve as President for more than two terms. This was probably a good idea, and I would categorise this small restriction under “protecting the people from the government.) This was brought out for the (failed) amendment barring committed, monogamous gays from the protections enjoyed by married couples, and holds for the flag burning amendment. Not only would this remove a freedom currently enjoyed (and rarely exercised, I might add), it directly contradicts the First Amendment protection of free speech.

“But the First Amendment doesn’t apply to all speech.” No, it doesn’t extend to publishing troop movements in war or crying “Fire!” in a theatre. In cases where speech (or expression or exercise of religion or freedom of the press) endangers others, it is not protected. Unless someone can show me that a protester burning a flag poses a greater danger than any other peaceful, nonviolent protester, I don’t buy that this isn’t protected.

Additionally, the Constitution doesn’t really mention specific crimes. It mostly lists things the government can’t do (cruel and unusual punishment comes to mind), and a person (or entity) can be challenged on these things and commanded to stop, but there’s only one specific crime listed in the Constitution: treason. Not murder, theft, speeding, vandalism, or terrorism. Treason. That’s it. Makes me think the Founding Fathers wanted to leave the whole decision of criminality thing to other documents than that which lays out the framework of the government.

I’m mildly reassured that the measure didn’t pass. I’m very concerned that it got as many supporting votes as it did.

I suspect the only reason this measure was proposed as an amendment rather than just a law (there are federal laws after all that restrict you from doing naughty things like tampering with airplane lavatory smoke detectors) is that such a law would be blatantly unconstitutional. Creating this as an amendment not only prevents it from being challenged on the grounds of its constitutionality, it might just achieve Bush’s apparent goal of destroying the document for good, in this case making it disappear into its own paradox.

As an unrelated aside: the hypocrite rabbit lady is in one breath miffed that people are expressing negative opinions about her on their personal websites, in another asserting her right to speak her own mind on her website. I laughed.

Another unrelated aside: I really love Akismet. With Wordpress it’s really easy to kill a lot of spam at once, so it wasn’t really the spam that was irritating me as much as the mails I got announcing the arrival of comments. I need these mails, since comments are moderated and I like to get things approved as quickly as possible, but it was getting to be a pain in the neck to get 5-10 mails a day announcing spam. Akismet solves the problem neatly, and so far no one’s complained that their comment was eaten. Blissful.