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Friday, June 24, 2005

Liberty and Justice for All?

Over the last two days, two branches of the American government—the judicial and the legislative—proved again either that they have no idea what this nation's Founding Fathers meant when they drafted, debated, and ratified the Constitution, or that they simply do not care what it says. Activities like these are what provide fodder for conspiracy theorists to imagine grand plots whose aims are to subjugate Americans to a New World Order. Whether there are such schemes is moot, but the freedoms of American citizens are being trampled and obliterated, it seems, on a weekly basis by our own government.

To the Patriot Act (a collusion of the executive and legislative branches, with the approval, so far, of the judicial) and to the broad discretionary powers of the President (most of which have been assumed through executive orders and without Congressional or judicial oversight), we can add our governments' right to condemn private property for just about any cause. Today, in a 5-4 decision, the Supreme Court decided that the Fifth Amendment, which prohibits unreasonable seizures of property, can be ignored by local governments—and by implication, state and federal governments—if they can show that new development on the condemned land will economically benefit the community.

This decision means that, if your city fathers decide that a shopping mall or factory or sports arena will provide more revenue to the city than what you pay in property taxes, they have every right to force you to sell your home, farm, or business to them for "fair" compensation. It used to be—and is still the law in many locales—that government could only condemn property for necessary infrastructure—roads, sewers, airports, power plants, etc. Now, however, if a private citizen pays $1,000/year in property taxes, but a strip mall on the same land will bring in $10,000/year—and add a score of new employees and lots of customers who will pay local sales taxes—the citizen's only option is to take whatever price the city offers for his place.

Who knows if this will be the extent of a government's use of this new power? What if the local city council, dominated by one or the other party, wants to make matters difficult for the rival party, and uses this power like a club? It is not out of the realm of possibility that a government could also use this power to force "undesirables"—the poor, members of another race, etc.—out of a certain sector of the city. Or perhaps it could be brought to bear on a "cult" whose ownership of a piece of property in the city is an embarrassment to the "orthodox" community. Do we really want to open the floodgates to these possibilities?

The second anti-Constitutional activity this week involved the House of Representatives approving the wording of a Constitutional amendment that would give Congress the power to punish those who desecrate the American flag. It would read: "The Congress shall have power to prohibit the physical desecration of the flag of the United States." This is the sixth time since 1995 that the House has approved this amendment, and the Senate has twice voted it down. If passed, it would overturn a 1989 Supreme Court decision that found that the First Amendment protects flag burning. Analysts believe this attempt will also be defeated, as supporters can muster only 65 senators, two short of the 67 needed for passage.

Flag burning is an emotional issue, and since 9-11, it has gained support across the country. In fact, 9-11 was played like a trump card during the debate: "Ask the men and women who stood on top of the Trade Center," said Rep. Randy "Duke" Cunningham (R-CA). "Ask them, and they will tell you: Pass this amendment." Nevertheless, the First Amendment is clear in its protection of speech, even rebellious or defiant speech: "Congress shall make no law . . . abridging the freedom of speech, or of the press. . . ." The Founders wanted the people of this country to have the power to speak their minds, especially when the government seemed to be getting too big for is breeches.

The Court has found in several instances that "speech" covers symbolic actions—actions deliberately done to make a political point. Burning the flag, then, is along the same lines as burning or hanging a political figure in effigy. Clearly, both of these acts are offensive, but as Americans, we are free to offend and to be offended. Would not the likes of George Washington, Benjamin Franklin, John Adams, and Thomas Jefferson laugh us to scorn if they knew today's Americans are so "sensitive" that they would attempt to amend the Constitution to avoid being offended? In days long past, private citizens would "have a quiet talk" with anyone who would dare to be so offensive against our national symbol. And that would be that.

Do we really want the government to institutionalize authority over disagreeable speech or symbolic actions? If the Congress can punish for desecration of the flag, what other kinds of "speech" could they someday ban or penalize using this amendment as a precedent? How about banning certain books, either political or religious, that they find offensive? Perhaps it could be "offensive" remarks that oppose abortion, promiscuity, or homosexuality (Canada already has such a law against the last)? Or maybe Congress might want to impose its authority on churches who offend by not conforming to "orthodox" practices? All the sea needs is one tiny crack in the dike.

It is ironic that the recent hubbub over the Pledge of Allegiance centered on the words "under God." It seems that we need a national debate on "with liberty and justice for all" instead.