EDITORrnThomas FlemingrnSENIOR EDITOR, BOOKSrnChilton Williamson, jr.rnMANAGING EDITORrnScott p. RichertrnART DIRECTORrnH. Ward SterettrnDESIGNERrnMelanie AndersonrnCONTRIBUTING EDITORSrnKatherine Dalton, Samuel Francis,rnGeorge Garrett, Paul Gottfried,rnJ.O. Tate, Michael Washburn,rnClyde WilsonrnCORRESPONDING EDITORSrnBill Kauffman, Donald Livingston,rnWilliam Mills, William Murchison,rnAndrei Navrozov, ]acob NeusnerrnFOREIGN AFFAIRS EDITORrnSrdja TrifkovicrnLEGAL AFFAIRS EDITORrnStephen B. PresserrnRELIGION EDITORrnHarold O./. BrownrnEDITORIAL SECRETARYrnLeann DobbsrnPUBLISHERrnThe Rockford InstituternPUBLICATION DIRECTORrnGuy C. ReffettrnCIRCULATION MANAGERrnCindy LinkrnA publication of The Rockford Institute.rnEditorial and Advertising Offices;rn928 North Main Street, Rockford, IL 61101rnEditorial Phone: (815) 964-5054.rnAdverHsing Phone: (815) 964-58B.rnSubscription Department: P.O. Box 800,rnMount Morris, IL 61054. Call 1-800-877-5459.rnU.S.A. Newsstand Distribution by Eastern NewsrnDistributors, Inc., One Media Wav, 12406 Rt. 250rnMilan, Ohio 44848-9705rnCopyxight © 1999 b>’ Tlie Rockford Institute.rnAll rights reserved.rnChronicles (ISSN 0887-57M) is publishedrnmonthK’ for $”59.00 (foreign subscriptions add $12rnfor surfirce delivery, $48 for Air Mail) per year byrnThe Rockford Institute, 928 North Main Street,’rnRockford, IL 61103-7061. Preferred periodicalrnpostage paid at Rockford, II. and additional mailingrnoffices. POSTMASTER: Send addressrnchanges to Chronicles, P.O. Box 800,rnMoimt Morris, IL 61054.rnTire views expressed in Chronicles are thernauthors’ alone and do not necessarily reflectrnthe views of The Rockford InsHtute or of itsrndirectors. Unsolicited manuscripts cannot bernreturned unless accompanied by a self-addressedrnstamped envelope.rnChroniclesrnVol.2?, No. 9 September 1999rnPriiifccI III the ULiilt’tl Slales of AiiicricjrnPOLEMICS & EXCHANGESrnOn Federalism andrnFlag-BurningrnThe Supreme Court, in the case oi JohnsonrnV. Texas, arrogated to the federal governmentrnthe power to decide that allrnstates must allow the public burning ofrnthe federal government’s flag. This decisionrnclearly contradicted both the nearunanimousrnunderstanding of previousrnSupreme Court justices, including suchrnconstitutional nihilists as Chief JusticernEarl Warren and Justice Hugo Black,rnand the much-maligned “original understanding”rnof the issue.rnRegarding the “original understanding,”rntwo of the three leading Federalistrndelegates to the Virginia ratification convention,rnGovernor Edmund Randolphrnand George Nicholas (James Madison’srnchief spokesman), explicitly told their fellowrndelegates that the instrument byrnwhich they proposed to ratify the Constitutionrnwould leave future Virginians thernpower to reclaim their entire delegationrnof authority to the new government inrnthe event that the federal government undertookrnto intervene in speech-relatedrnmatters in any way. James Madison andrnJohn Marshall, two of the other fourrnmembers of the committee that reportedrnthe ratification instrument, sat muternthrough this explication—thus signalingrntheir assent.rnStephen B. Presser (Cultural Revolutions,rnJune) suggests that the proper responsernto decisions such as Johnson is notrnnullification or secession, but grantingrnnew powers to the federal legislature.rnThat is exactly what his proposed amendment,rnwhich would give Congress alonernthe states’ pre-/o/mson power to ban publicrndisrespect of the flag, would do. Surely,rnthis is rewarding the fox for raiding thernhenhouse! Under Article III, Section 2,rnof the Constitution, Congress alreadyrncan divest the Supreme Court of effectivernpower in this area by simply strippingrnit of jurisdiction over appeals in cases involvingrnthe flag; the federal legislaturernshould not be granted a new quantum ofrnthe states’ reserved sovereignt)’ for failingrnto check judicial legislation.rnThere is another—and better—reasonrnnot to endorse a “flag desecration [sic]rnamendment”: The flag is not sacred. Irncan think of dozens of things one mightrnhold sacred: Orthodox icons, the HolyrnBible, the Cross of Christ, relics of thernsaints, the writings of the Fathers of thernChurch, collections of the lives of thernsaints, etc. To have only one thing, andrnthat the symbol of the federal government,rnrecognized as “holy” by the federalrngovernment is really too much. It is simplernblasphemy, as is any reference torn”desecration” of the federal flag.rnI am sure that Dr. Presser is animatedrnby the best motives. Seeing yet morernoverreaching by the federal judiciary, hernthinks, “Why not start to fence the judgesrnin here?” I answer: Why not simply defendrnthe states’ reserved right to legislaternexclusively in all matters such as this?rn—K.R. Constantine GutzmanrnCharlottesville, VArnDr. Presser Replies:rnK.R. Constantine Gutzman’s points arernwell taken, and I agree that the growth ofrnthe federal leviathan and the diminishmentrnof the constitutionally guaranteedrnpowers of the states are important issuesrnwhich ought to be addressed. Nevertheless,rnI part company with him over thernsuggestion that passage of the Flag ProtectionrnAmendment would exacerbaternthe problem. He appears to believe thatrnpassing the amendment would give Congressrna power to regulate speech which itrndid not before possess, but the point isrnthat flag desecration is not speech, neverrnhas been, and never will be. He is correctrnthat, before the 1989 Johnson decision,rnthe states—as well as the federal governmentrn—had laws against flag desecration;rnthe amendment would only restore thernfederal government’s power in this regard.rnLike him, I would favor a measurernthat restored the pre-1989 powers of thernstates as well, but I’m willing to settle forrnthis particular amendment at this time.rnPassage of the Flag Protection Amendmentrnwould reward the efforts of the 49rnstate legislatures which have petitionedrnCongress, and the amendment would, inrnthe end, have to be ratified by the staternlegislatures, acting for the people of theirrnstates. The measure is a reaffirmation ofrngrassroots popular sovereignty, and itrnwould be brought into the Constitutionrnultimately by the actions of the states, so Irnsee the amendment as a reinforcement ofrnthe people’s power to control their Con-rn4/CHRONICLESrnrnrn