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Be Careful, Trump, Free Speech Goes Both Ways

Thursday, December 1, 2016 1:34
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(Before It's News)

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By Douglas V. Gibbs
AuthorSpeakerInstructorRadio Host

The fact that there are those around the world who are willing to light the American Flag on fire is despicable.  The fact that there are Americans who are willing to burn the American Flag is beyond despicable.  I hate that kind of disrespect portrayed towards our republic, which is the very system of liberty that gave those people the right to burn the flag as a manner of freedom of speech in the first place.

President-elect Donald Trump, apparently, hates the fact that people disrespects our flag in such a way just as much as I do.  However, he has made an grave constitutional error.  In a Tweet he wrote:

“Nobody should be allowed to burn the American flag – if they do, there must be consequences – perhaps loss of citizenship or year in jail!”

While I appreciate the fact that the President Elect is Donald Trump, and not Hillary Clinton, that does not, and cannot, put me in a position to not speak out when Mr. Trump is in violation of the United States Constitution.

Dylan Stableford of Yahoo! News wrote that the Supreme Court disagrees with Trump's assertion that there should be some kind of federal law against the burning of the American Flag.  Stableford, and the U.S. Supreme Court, are correct on this, but not necessarily for the right reason.

Stableford used as a source for his article the 1989 Supreme Court ruling in the Texas v. Johnson case that declared that flag burning is protected as free speech under the First Amendment.  The following year, the Supreme Court again voted in favor to protect flag burning when it ruled that the Flag Protection Act of 1989 — passed by Congress in response to the Texas v. Johnson decision — was unconstitutional.

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Following those decisions, in 2006 Congress decided to pursue a constitutional amendment.  The Democrat Controlled Senate (it was actually a 49-49 tie between the GOP and the Democrats, but the two independents, Joe Lieberman and Bernie Sanders caucused with the Democrats) failed to reach the 2/3 vote needed to send the proposal to the States for ratification by one vote.

Republican Senator Mitch McConnell of Kentucky voted against the proposal, stating that though flag burning is “disgusting,” freedom of speech must still be protected by the First Amendment.

College campuses in today's society, which seems to be Orwellingly shepherded by political correctness and the fear of offending anyone, are removing the American flag from their school grounds, stating the flag represents oppressive and hateful ideals on par with the confederate flag.  Football players are refusing to stand for the National Anthem.  Students are told not to wear Old Glory on their shirts on Cinco de Mayo because it is considered offensive to those who hate the flag, but adore the flag of another country like Mexico – and the federal court system agrees.

The liberal left's deconstruction of the philosophies and principles that made this country great is indeed in the process of fundamentally changing the United States of America as Barack Obama intended, and the attack on those ideals, which includes flag burning and a refusal to have any respect for anything “patriotic”, are examples of the diabolical deed.  But, if we go back to the original intent of the United States Constitution, the federal government outlawing a form of free speech, even despicable examples of free speech, makes us no better than the leftists, and to do such a thing at the federal level is not only wrong, but unconstitutional.

That, however, does not mean that the journey towards outlawing the burning of the American Flag is an impossible endeavor.

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The Texas v. Johnson ruling by the Supreme Court in 1989 was an unconstitutional ruling, and Congress has the authority to make it null and void with their exceptions clause authority, as expressed in Article III, Section 2 of the U.S. Constitution.  While the federal government has no constitutional authority to make any law abridging the freedom of speech, nor outlawing the burning of the American Flag, the States do.

Federal authorities are based on whether or not the power is expressly enumerated in the U.S. Constitution.  State authorities, however, are all retained by the States unless the authority is granted to the federal government, or prohibited to the States – as per the Tenth Amendment.  In the case of flag burning, the authority to ban such activity is neither delegated to the federal government, nor prohibited to the States.  Therefore, the Texas v. Johnson ruling by the United States Supreme Court overturned a State law on a State issue that the federal government has no authority being involved in.

For the sake of clearing up any potential arguments the collectivists reading this article may come up with at this point, let's remind ourselves of the realities surrounding the arguments that would be applied by anti-originalism arguments at this juncture.  Those articles, I anticipate, will be regarding judicial review, and the Fourteenth Amendment's Equal Protection Clause which is used to give credence to the concept of the Incorporation of the Bill of Rights to the States.

Judicial Review is the statist idea that the federal court system has the authority to determine the constitutionality of any law, and that their decision on that constitutionality is final.  In other words, that the black robed judges of the court system are the final arbiters of the United States Constitution.

The push for establishing judicial review emerged early, and in fact was discussed during the Constitutional Convention of 1787.   About a decade and a half later, in 1803 as a part of the opinion written by Chief Justice John Marshall in the Marbury v. Madison case, judicial review emerged as an accepted concept in the American System.  Mr. Marbury won his case, but the court admitted it had no power to enforce the decision.  However, Marshall slipped into his opinion of the ruling regarding Marbury v. Madison that the federal court system had the authority of judicial review, and then used eight more rulings during his 36 year reign as Chief Justice to solidify the concept of federal supremacy.

In short, the judges granted the power of judicial review to themselves.  The authority does not exist anywhere on the pages of the U.S. Constitution.  During the Federal Convention in Philadelphia in 1787 the concept of a federal review of State laws by any part of the federal government, in fact, was rejected because the intent of the U.S. Constitution was for the creation of a federal government to handle external issues, without that same federal government having any say regarding the internal operations of the States.  What occurs inside the States is the business of the States.  They are allowed to be different, unique, and to handle their own affairs.

The 14th Amendment's clauses following the citizenship clause were written by an Ohio member of the House of Representatives, John Bingham.  It was his intent to incorporate the Bill of Rights to the States, which would make the federal government the enforcer of our rights to the point where the federal government could mandate State compliance.  Congress, however, disagreed with Mr. Bingham, and approved the proposal for the 14th Amendment with the understanding that the incorporation of the Bill of Rights to the States would not be included.  The ratification process followed the same intent, with the State legislatures ratifying the 14th Amendment with the understanding that the Bill of Rights was not to be incorporated to the States.

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Having failed in establishing ultimate federal supremacy over the States through political means, the statists turned to the court system to make it happen.  The incorporation of the Bill of Rights to the States has occurred, but not by constitutional means, but through the complex web of case law.  In other words, the federal courts, as with judicial review, gave themselves the power to force the States to comply with any federal demand regarding our rights.

A recent example of the courts applying the Bill of Rights to the States is the McDonald v. Chicago case of 2010.  The ruling disallowed Chicago from banning handguns, using the argument that it was a violation of the 2nd Amendment to do so.  I received calls and emails, after the decision, proclaiming how the Supreme Court's final conclusion was a win for gun rights.  My response?  Don't be so sure.  Think about what just happened as the federal court system incorporated the 2nd Amendment to Chicago's local laws – the federal government, through the judicial branch, had just dictated to a city, and ultimately to the State of Illinois, and any other State in the Union, what they could or could not do regarding gun rights.  A dangerous proposition, if the legal winds were to change direction.  If the United States Supreme Court decided to turn against gun ownership, and wished to tell the States what they could or could not do regarding gun rights, McDonald v. Chicago would serve as their precedent, and authority, to do so.

Ultimately, while it might be a nice thing on the surface for the Trump White House to want to outlaw something as disgusting as flag burning, the federal government has no authority to do such. . . but the States technically can.  The problem is that the States have already tried to do so.  The intrusion of the federal court system, based on false constitutional beliefs that exist because of big government statists, into the issue through Texas v. Johnson has answered the question of where a State's attempt to ban flag burning will go if they try again.  Precedent has been created, even though it is bad precedent, and ultimately unconstitutional precedent, as far as the current legal system is concerned, the issue has been settled.  Therefore, the way to proceed would be to have a Supreme Court that is willing to overturn Texas v. Johnson, and then recognize that the federal government, be it through legislation, executive action or order, or through the federal judiciary, has no authority to dictate to a State regarding any local laws made regarding the attempt to protect the sanctity of the symbols of liberty and our republic, such as the American Flag.

Political Pistachio Conservative News and Commentary

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