Crossposted from SmokeyMonkey.org.
The Senate voted on two amendments regarding flag desecration this afternoon. The first was Senator Dick Durbin's (D-IL) alternative to the second. It was resoundingly defeated. (Roll Call Vote 188)
The second was S.J.RES.12, which would be the 28th Amendment to the Constitution and reads as follows:
The Congress shall have power to prohibit the physical desecration of the flag of the United States.
The Constitutional Amendment failed to pass. (Roll Call Vote 189)
Why did those that voted for the constitutional amendment that would have given the Congress the power to prohibit desecration but not for an amendment that would make it illegal? Is it that they think such a law would be struck down as unconstitutional? Indeed, it is.
The argument that I heard on the floor (watching C-SPAN2) suggested the concern was to take the power away from the "5 activist judges" that took the power to protect the flag away from Congress. Of course, this is double-talk and projection. They love them some activist judges if they are anti-choice. But a Supreme Court that protects freedom of speech is incomprehensive to the Republicans. Hatch seemed honestly (as far as he can be) mystified by the implication that his amendment had anything to do with the First Amendment.
For the sake of it, let's look at the court case that he is discussing and debunk his argument. In United States v Eichman, the Supreme Court found the Flag Protection Act of 1989 unconstitutional by a 5-4 majority. These five "activist judges" were Brennan, Marshall, Blackmun, Scalia, and Kennedy. Reread that carefully; use wikipedia if you need to.
BRENNAN, J., delivered the opinion of the Court, in which MARSHALL, BLACKMUN, SCALIA, and KENNEDY, JJ., joined. STEVENS, J., filed a dissenting opinion, in which REHNQUIST, C. J., and WHITE and O'CONNOR, JJ., joined, post, p. 319.
Brennan, Kennedy, and ... Scalia? And Rehnquist, O'Connor, and ... Stevens? Pair those up in your mind for awhile. This was no "activist" decision. It was a constitutional issue that split the court pretty strangely. (Correct me if I'm wrong in this interpretation; I am not a constitutional law scholar.)
Besides this division on the decision, Hatch is also wrong that it is this case that somehow took power from the Congress. In fact, it was upholding a precedent in Texas v. Johnson. The following is from that ruling:
However, the Texas Court of Criminal Appeals reversed, holding that the State, consistent with the First Amendment, could not punish Johnson for burning the flag in these circumstances. The court first found that Johnson's burning of the flag was expressive conduct protected by the First Amendment. The court concluded that the State could not criminally sanction flag desecration in order to preserve the flag as a symbol of national unity. [emphasis mine]
Neither the States nor the Congress has the power to limit First Amendment protected speech. Period. That's where it relates to the First Amendment, Senator Hatch.
See also arodb's Flag Consecration Amendment that has a great take on Scalia's thinking in his decision.