Monday, November 17, 2003

Clark Supports Anti-Flag-Burning Amendment to the Constitution:
This is very, very, very,..., very disappointing. Despite some errors he's made and some remaining questions about him, I've been getting more and more excited about Clark. He's extremely intelligent, knowledgeable, and accomplished, he beats everybody else hands-down in terms of credibility on national defense, and he's the one Democratic candidate who seems basically guaranteed to beat Bush if he can get the nomination. And I find him to be extremely inspiring. I don't just mean as a speaker; I find him inspiring in many different ways. He comes across--or so it seems to me--as a person of good character who really gets it--really gets the idea of America. But here he is making a terrible mistake. Morally and intellectually, I mean, not politically. I don't know and don't really care about the political part.

This is an issue that seems minor to some people, or seems like a close call, but I disagree. I am inclined to think that this issue divides the people who get it from the people who don't. That is, it divides those who have a more-or-less confused or superficial commitment to the principles that underlie the constitution from those who really understand those principles and feel the force of them in their guts.

The flag burning issue is the political equivalent of crucial experiment in science. It's often the case that two incompatible theories make many of the same predictions. To separate the theories, to tell which one is true (or at least remains a candidate for truth) and which one is false, you often have to go to extraordinary lengths. A famous case like this happened in 1919 when Arthur Eddington went to Principe in the Gulf of Guinea to conduct an observation that would pull Newtonian physics apart from General Relativity. You know the story: the two theories make mostly the same predictions under normal conditions on Earth (ignore messy details here please), but General Relativity predicts that light will bend as it passes close to a massive body. So Eddington went off to Principe when and where there would be a total eclipse. Under those conditions, he could determine whether there was any change in the apparent position of stars when their light passed close to the sun. There was. Einstein vindicated.

Somebody who didn't understand what was at stake in that case might ask "Well, who cares whether starlight seems to move a little bit on Principe during an eclipse? That's trivial!" But of course nobody really cares about the change of apparent position per se. What they care about is that this tiny difference indicates which of two radically different theories about the world is true.

Similarly, how one comes down on the flag-burning case--let me suggest--indicates which of two radically different views of America and the idea of liberal government one has. If, like Madison, you think that freedom of conscience is the fundamental right, then you are committed to being more-or-less an absolutist about the freedom of expression, holding that this right is protected even when it involves the desecration of revered symbols. The principle trumps the symbol. And you hold that it's not even a tough case. The alternative seems to be to hold that freedom of conscience and expression can be trumped when the expression involved is sufficiently upsetting to enough people. But that's not minor difference of opinion, that involves a completely different conception of the legitimate powers of government. As in the case of Newtonian physics and General Relativity, these two different conceptions of government entail the same consequences under most conditions. But the flag-burning question is the political analog of starlight passing near the sun--a case that can seem trivial or esoteric, but which has profound implications, indicating which of two radically different views of America someone holds.

I'm inclined to think that Clark just failed a crucial experiment.

Needless to say, there's a good chance that I'm wrong about some or all of this.

(Oh, and: yes, I realize that time, place, and manner restrictions are justified. And I don't need any e-mails about "yelling fire in a crowded theater." That was a terrible analogy when Holmes used it in Schenck v. U.S., and its almost always misused. It's certainly a bad analogy in most cases of flag burning. Alan Dershowitz has a short paper on this. Yes, 'more-or-less an absolutist' is a funny thing to say. See comment on time, place, and manner restrictions.)


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