On a more inconsequential note than today’s judicial nullification of half of the takings clause, Uncle asks whether the new flag burning amendment, if ratified, would make the Constitution unconstitutional. The answer is no; Congress is allowed to amend the Constitution, including the Bill of Rights, provided it does so in the manner set forth in Article 5, and when it does, the later amendment wins every time. Note that Article 5 does, however, contain three interesting limits on what substantive amendments Congress and the states may pass:

…provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.

The year 1808 has come and gone, so the one thing we’re left with is that no state can lose a Senator without its own consent, even if the amendment passes both houses unanimously and is ratified by the other 49 states. Anything else is fair game, including that cherished First Amendment. Note, however, that unlike the 21st Amendment, the flag burning amendment does not express an intent to repeal anything. Thus, if the amendment passes, courts will not rule that the First Amendment is repealed (aside from the parts the courts have already repealed on their own, but that’s a different matter), only that the newer amendment must prevail where the two amendments conflict. The proposed amendment reads, in full:

The Congress shall have power to prohibit the physical desecration of the flag of the United States.

Note in particular what it doesn’t say:

The First Amendment to the U.S. Constitution, insofar as it relates to the desecration of the flag, is hereby repealed.

That means that if the amendment passes, Congress may enact a federal statute prohibiting the physical descration of the flag – but that’s it. States cannot pass any such laws without violating the First Amendment, as interpreted by the courts in Texas v. Johnson, which would generally remain good law. Nor could Congress enact any federal legislation designed to protect other flags, such those of the states or that of the U.N., nor could they ban the virtual desecration of a flag online. At least, not unless the courts start interpreting the new 27th28^th Amendment in more or less the same way they interpreted the commerce clause last month or the takings clause today, in which case Congress could do anything it damned well pleases as long as part of the effect of the law in question is to ban the desecration of flags. I’m confident they won’t do that, not because there’s any principled reason they shouldn’t, but simply because judges won’t like the 2728^th Amendment, which is a slap in the face of their own precedent. Thus, the’ll see little reason to construe it more broadly than absolutely necessary.

There is one odd twist, however, as to state flag burning bans. While I noted that the proposed 2728^th Amendment applies by its terms only to Congress, so too does the original First Amendment. The only reason the First Amendment or any other part of the Bill of Rights applies to the states is because of a rather tortured doctrine of “incorporation,” which prohibits the states from doing things Congress can’t do because the rights protected are “fundamental to democracy.” Well, if the right to burn the flag is so damned non-fundamental to democracy as to allow Congress to prohibit it, what basis is there for continuing to “incorporate” a prohibition from Congress to the states, when that prohibition no longer applies to Congress in the first place? Nevertheless, I predict that this how the courts will interpret the amendment, with “Congress” meaning “Congress and the states” for purposes of Amendment I, which they sorta like, sometimes, but with “Congress” meaning “Congress” for purposes of Amendment XXVIII, which they’ll hate with a passion. Time will tell – or hopefully, it won’t.

UPDATE: I may not be able to count, but fortunately, reader Dave Huber can.