Van Harvey

  • Why is America fired up over President Trump telling Comey: “You’re fired!”

    If you’ve had it already with the ‘James Comey fired from the FBI!’ stories, I get it, but as no one seems to have any more facts than I do, I’m going to add one more comment to the mix.

    Do try to recognize, that asking and answering ‘Why did Trump fire James Comey?!‘, is, in absence of an exhaustive cross examination of Donald Trump, nothing more than an exercise in expressing your own feelings about Trump, and Comey. Period.

    The only facts that we can actually know at this time, is that shortly after the Deputy Attorney General, Rod Rosenstein, was finally confirmed by the senate, with high bi-partisan support (and which satisfied some procedural protocols for removing the agency director, from a staffing perspective), and he was asked to write a report on Comey’s status as director of the FBI, and his conclusion (which as he adamantly expressed, even reportedly threatening to resign if it was misrepresented, was not the causal reason for Comey’s firing, but simply an evaluation of the existing situation) was that Comey was compromised and ineffective, and that the FBI would be better off with a new director.

    Of course, as I posted last year, Comey, by his own testimony, had used his position as head of investigations, to make prosecutorial, and even judicial judgments, about whether charges should be brought or pursued, against Hillary, Huma Abedein, Anthony Wiener, etc. For me, that alone warranted his instant termination. My own question on why Trump fired him, is not ‘Why now?’ but ‘Why not earlier?’. However, as James Comey himself noted in his farewell letter, the president has the power and authority to fire the director of the FBI at any time, for any reason. You should note, that his removal does not halt or impede any ongoing investigations. It’s also worth noting, that his temporary replacement as Director of the FBI, Andrew McCabe, is a Clinton appointee, who has shown, especially through his wife’s campaigning for office a potential for highly partisan leftist leanings – Trump is unlikely to get much aid and comfort through his position as director, so do tailor your pet conspiracy theory appropriately.

    Why did Trump fire him? Because he felt it was time to. And in typical Trump fashion, having reached that decision, he acted swiftly, and in a dramatic fashion worthy of Reality T.V. – Comey found out that he’d been fired while standing in front of a room full of FBI agents, as they saw that the TV monitor behind him, was running the news crawl that Trump had fired him. Talk about your ratings moment!

    For those of you who are all up in arms about this, honestly, I can only laugh and shake my head. America as a whole, Left, Right, Center and Libertarian, has shown itself to be uninterested in, and unfamiliar with, the concepts of, and structures of, our constitutional republic, preferring popularity, personal interest, and ‘gotcha!’ partisan political posturing, to prudent wisdom in governing. America, sorry, but as you clearly prefer to be entertained by the likes of South Park, The Simpsons, and Reality T.V., and YOU voted on that basis, whether for Clinton, Trump or the also-ran obstructionists, for President of the United States of America.

    THIS is what that looks like! What did you expect?! Personally, I expected much worse, and so far I’ve been pleasantly surprised with what Trump has, and has not, done in office – I was imagining much worse. I dislike his lack of understanding our constitutional principles, and especially his economic views, but despite your angst and caricatures, he has a long history of capable executive, management and administrative abilities, a fond regard for Americana, as well as a flare for drama and publicity, which he’s honed through a decade or more of Reality T.V., and so far, he has used all of that to deliver above my expectations. Fingers crossed. Salt tossed over shoulder. Wood knocked.

    For those whose reactions are dramatically different from mine, they might have been summed up best by Stephen Colbert’s startlement at his audience’s failure to be up to speed with the PC Media’s latest ‘against him, for him, against him’ positions on Comey, as they cheered when he announced his firing. The thing that came to mind for me, when I heard that, was George Orwell’s ‘1984’, as the crowd is being led in 5 minutes of hate against “Eurasia”, and the speaker receives a message and stops mid word, and changes to “Eastasia”, as the hate continues on unimpeded. Unfortunately, Wiki is the best source ref that I can do at the moment, but I think it captures the Colbert moment in ‘1984’:

    “At the start, Oceania and Eastasia are allies fighting Eurasia in northern Africa and the Malabar Coast.

    That alliance ends and Oceania, allied with Eurasia, fights Eastasia, a change which occurred during Hate Week, dedicated to creating patriotic fervour for the Party’s perpetual war. The public are blind to the change; in mid-sentence an orator changes the name of the enemy from “Eurasia” to “Eastasia” without pause. When the public are enraged at noticing that the wrong flags and posters are displayed, they tear them down—thus the origin of the idiom “We’ve always been at war with Eastasia”; later the Party claims to have captured Africa.”

    Ladies and Gentlemen of America, if you disregard the concepts and principles and history that made this nation uniquely American, in favor of idle and base amusements, while giving political power over your lives, to people who have more regard for their own power, than your individual rights – what did you think would follow after that? Last year, the HBO series “Westworld” made masterful use of a Shakespearean nugget of a quote, from “Romeo & Juliet”,

    “These violent delights, have violent ends”

    When you comment, and act, not from careful consideration, but simply to give swift vent to your passionate and emotional feelings, you transform yourself into the ideal audience for taking part in ‘Hate Week’, and lacking any solid conceptual foundation, you too will hardly skip a beat in venting your emotions, as the label of your hated enemy is switched, from one set of letters, to another… and seriously, why would you think such labels would have any more value or purpose, to those you’ve put in charge of running the show, than a red cape to a bull?

    Again I’ve got to ask, America, what did you expect? SMDH.

  • Earth Day: Comply, or be put six feet under it!

    The underlying meaning of Earth Day, a day that was chosen to coincide with Vladimir Lenin’s birthday, shouldn’t be all that difficult to realize. The fact that one of its original promoters and first MC, was a fellow who later murdered his girlfriend …

  • A question for ‘REAL Conservatives’™

    I’ve got a question for my ‘REAL Conservatives’™ friends out there. While I’ve come to think of myself as more as more of a Liberal Conservative – Politically Liberal (Not Leftist, but Liberal in the classical sense of advocating for liberty), and culturally Conservative (not socially conservative, but seeking to conserve the ideals and treasures of Western Culture) – I like to think of myself as someone who has an understanding of the nature of Principles, to the point of preferring Principled thinking, over attempting to think with prefabricated store bought ‘principles’ (IOW I can get a bit obnoxious over it).

    Between Scylla and Charybdis

    I like to think of myself as someone who has an understanding of the nature of individual rights, the vital role that property plays in upholding them under a system of justice based upon the Rule of Law, which restrains and restricts the necessary power of government to defending the lives and rights of its people from all enemies, foreign and domestic. I’ve spent a lot of time thinking through how those abstract rights, follow from perceptual realities, in a conceptual chain that is perilous to abridge. And while I rarely find politicians who think as I do, I do seek out and support those who at least show a deep regard for our rights, for the rule of law, and the structure and purpose of our Constitution.

    Given that focus, I couldn’t find a way to support Donald Trump in the Primaries, because I didn’t see any evidence that he understood, or gave much thought or regard, for what I did. I couldn’t exactly support him in the general election either, although I strongly advocated for casting your vote, as I did, with his name on it, as the most effective means of defeating the greater evil facing us, from the Pro-Regressive Left.

    My question for ‘REAL Conservatives’™, is this: Why is it, that with all the ‘REAL Conservatives’™ we’ve supported and elected over the decades, why is it that this billionaire, Twitter headed, Reality T.V. star, Donald J. Trump, is the ONLY one to propose the type of budget measures he has, the ONLY one who’s moved to slay the Hydra of the Administrative State, the ONLY one who’s used his executive powers to attack it, the ONLY one whose told the hell hole of North Korea that the era of ‘strategic patience’ is at an end, and the ONLY one to begin to pull back from the Charybdis of suck that is the United Nations?

    That seems like a question that might be worth giving some thought to.

  • Would Judge Gorsuch on the Supreme Court be some of that promised ‘Winning’? Maybe so!

    Well. I’m late to the SCOTUS party and just getting started on looking into Judge Neil Gorsuch’s legal opinions, but… suffice to say that for the moment, it’s looking good. While skimming various bios of him last night, my attention was caught by this bit from the Atlantic,

    “…The most remarkable thing about the book is its measuredness. Gorsuch is a Jesuit-educated Episcopalian, but he does not rely on theology to make his argument. In fact, he takes pains to ground his work in “secular moral theory,” laying out a careful case based on the writings of thinkers from Aquinas and Epicurus to contemporary scholars Peter Singer and Ronald Dworkin. His work reads more like a philosophy paper than a legal brief, which is appropriate given his background: He holds a doctorate in philosophy from Oxford.

    Gorsuch reveals a few interesting lines of thinking in his book. First, it’s clear that he’s deeply interested in fundamental moral principles. The common wisdom around his nomination is that he’s an originalist, reading laws and the Constitution based on their authors’ intended meaning. During his nomination announcement, he emphasized this principle: “I respect … the fact that in our legal order it is for Congress and not the courts to write new laws,” Gorsuch said. “It is the role of judges to apply, not alter, the work of the people’s representatives.”…”[emphasis mine]

    This was especially timely, in that I was just grousing to folks, about how, with the rare exception of someone like Justice Clarence Thomas, few in our courts have much, if any, regard for the concepts of Natural Law that our Constitution was drawn out of in our Founder’s Era. Instead, we’ve had to settle for, at best, the more primitive modernist ‘Originalists‘ and ‘Textualists‘ – and now here this fellow Gorsuch is sounding as if I may have to, well, not quite ‘eat my words’, but I may possibly have to nibble on them a bit. Around the edges.

    And frankly, that’s the kind of crow I’d gleefully chow down on all day long – fingers crossed!

    Then this evening, in the first opinion I selected, his concurring opinion (starting on about pg 15) in Gutierrez-Brizuela v. Lynch, 834 F.3d 1142 (10th Cir. 2016), which focuses upon how Administrative Agencies have been allowed to overstep their power (to say the least (which the ‘Chevron‘ case is referring to), the concurring portion starts with a Bang! and keeps getting better, and better.

    “There’s an elephant in the room with us today. We have studiously attempted to work our way around it and even left it unremarked. But the fact is Chevron and Brand X permit executive bureaucracies to swallow huge amounts of core judicial and legislative power and concentrate federal power in a way that seems more than a little difficult to square with the Constitution of the framers’ design. Maybe the time has come to face the behemoth…”

    , and they just keep coming,

    “…Even more importantly, the founders considered the separation of powers a vital guard against governmental encroachment on the people’s liberties, including all those later enumerated in the Bill of Rights. What would happen, for example, if the political majorities who run the legislative and executive branches could decide cases and controversies over past facts? They might be tempted to bend existing laws, to reinterpret and apply them retroactively in novel ways and without advance notice. Effectively leaving parties who cannot alter their past conduct to the mercy of majoritarian politics and risking the possibility that unpopular groups might be singled out for this sort of mistreatment — and raising — along the way, too, grave due process (fair notice) and equal protection problems. Conversely, what would happen if politically unresponsive and lifetenured judges were permitted to decide policy questions for the future or try to execute those policies? The very idea of self-government would soon be at risk of withering to the point of pointlessness. It was to avoid dangers like these, dangers the founders had studied and seen realized in their own time, that they pursued the separation of powers. A government of diffused powers, they knew, is a government less capable of invading the liberties of the people. …”

    , and,

    “…But however that may be, none of it rescues us from our riddle. For whatever the agency may be doing under Chevron, the problem remains that courts are not fulfilling their duty to interpret the law and declare invalid agency actions inconsistent with those interpretations in the cases and controversies that come before them. A duty expressly assigned to them by the APA and one often likely compelled by the Constitution itself. That’s a problem for the judiciary. And it is a problem for the people whose liberties may now be impaired not by an independent decisionmaker seeking to declare the law’s meaning as fairly as possible — the decisionmaker promised to them by law — but by an avowedly politicized administrative agent seeking to pursue whatever policy whim may rule the day. Those problems remain uncured by this line of reply”

    , and,

    “…Even supposing, too, that we could overlook this problem — even supposing we somehow had something resembling an authentic congressional delegation of legislative authority — you still might wonder: can Congress really delegate its legislative authority — its power to write new rules of general applicability — to executive agencies? The Supreme Court has long recognized that under the Constitution “congress cannot delegate legislative power to the president” and that this “principle [is] universally recognized as vital to the integrity and maintenance of the system of government ordained by the constitution.” Marshall Field & Co. v. Clark, 143 U.S. 649, 692 (1892). Yet on this account of Chevron we’re examining, its whole point and purpose seems to be exactly that — to delegate legislative power to the executive branch…”

    , and,

    “…Even under the most relaxed or functionalist view of our separated powers some concern has to arise, too, when so much power is concentrated in the hands of a single branch of government. See The Federalist No. 47 (James Madison) (“The accumulation of all powers, legislative, executive, and judiciary, in the same hands . . . may justly be pronounced the very definition of tyranny.”). After all, Chevron invests the power to decide the meaning of the law, and to do so with legislative policy goals in mind, in the very entity charged with enforcing the law. Under its terms, an administrative agency may set and revise policy (legislative), override adverse judicial determinations (judicial), and exercise enforcement discretion (executive). Add to this the fact that today many administrative agencies “wield[] vast power” and are overseen by political appointees (but often receive little effective oversight from the chief executive to whom they nominally report), and you have a pretty potent mix… “

    My initial reaction to all of this?

    I’m feeling like I’m in judicial heaven, or at least the Court Candy Store… but… that’s a first impression. And yes, I’ve heard some folks complaining that he didn’t come out with a full throated defense of the 2nd Amdt in another case – worrisome, but it’s a bit difficult to see how that gibes with the ideas put out in this case – if he is stays consistent with the ideas dealt with here, having this judge on the Supreme Court, would be a big step back onto the road to restoring the Rule of Law.

    Still though, I’ve got quite a bit more reading to do before I really buy into it – good or bad.

    But so far? This is the kind of ‘Winning!‘ that I could get used to.

  • The Donald becomes The President

    Ok, so, a few quick comments about Trump’s inaugural speech. It was simple, direct, unpretentious, even pithy in its restatement of those themes he campaigned upon, which, given his reputation, is all the more striking, as he apparently waved off the s…

  • Red, White and Inaugural Blues – a Rant

    On Friday, the 20th of January, 2017, the 45th President of the United States of America, Donald J. Trump, a man I did not support in the recent election (though I opposed his final opponent, with him), will be sworn into office, and with that oath of office, he will become my, and every other American’s, President.

    ‘On each national day of inauguration since 1789,
    the people have renewed their sense of dedication to the United States.’

    We’re told on the eve of his inauguration that somewhere in the area of 70 Democrat members of Congress are declaring that they will not be attending the inauguration, as a means of protesting the man who will occupy the office of the President of the United States.

    These are elected representatives of the government of the United States of America. They were, and are, elected to represent their constituents in the upholding and crafting of the laws of the land, under that very government, whose laws, and governance of them, impacts every one of our individual rights and lives.

    To explicitly attempt to delegitimize the peaceful and complete transfer of power, to the person duly elected by We The People, in accordance with our laws, to the office of the President of the United States of America, for partisan political purposes (whether from the Left or the NeverTrump’r Right), is, at best, extreme political negligence, and it is undermining to not only the peaceful transfer of political power, but to the preservation of every value which these ‘lawmakers’ supposedly believe in, and were elected to represent.

    That, in my book, is despicable, it is disgusting, and they, and those who blithely see that as somehow being worthy behavior, should be ashamed of themselves.

    Yet people are converging upon Washington D.C. to protest, they are churning out gimmick after gimmick to shout down those they differ with, even as being ‘nazis!’, they come to ‘protest’ … what? Whatever distractions they might flood social media with, what they are actually protesting, is the Democracy!‘, the democratic election of their fellow Americans in accordance with the laws of the land, in a peaceful political contest which is understood upon entering into, that one side is guaranteed to lose, and so by their own actions they show themselves to be immature, dishonest and uncivilized wretches, who are made all the more repulsive by attempting to drape themselves in the spirit of ‘Democracy!‘, while deliberately undermining the democratic process.

    Who needs Russians when you have Pro-Regressive Leftists!

    lawful, peaceful, election of the 45th President of the United States of America. They are protesting in the name of ‘

    Who needs Russians, when you’ve got Pro-Regressive Leftists?! They lost the electoral argument, and yet they feel entitled to protest, deride, and even to refuse to abide by the decision of their fellow Americans, with these cheap, juvenile, theatrics. Some of them, friends of mine and even relatives of mine, I’m ashamed to say, have even characterized these protests and pledges of ‘not my President!‘ as, and I quote: Beautiful.

    There is nothing beautiful in people treating the solemn and peaceful transfer of  political power, as if it were some sort of cheap piece of roadside performance art.

    A Presidential Inauguration is the ritualized transfer of the reigns of power – that pure, dangerous, deadly, political power to penalize, punish, put to death and mandate actions and make war – this immense power is not being wrested away by violent slaughter, but is simply, boringly, being signed over across a sea of vastly differing and turbulent political viewpoints, peacefully, according to law, in a ceremony that has been solemnized by 228 years of tradition, under our Constitution which has been proven more successful and enduring than any other system in all of human history.

    These protesters see nothing remarkable in that. They see nothing disturbing or dangerous in delegitimizing that. They see nothing admirable in this incredible and historic track record which we in America have, of binding down the powers of violence and ambition, by nothing more than the cords of law. They seem unaware that our laws don’t gain the strength to do that by the paper they are printed upon, but by being written upon the hearts of We The People of this nation, as they were for We The Peoples and any who show the ‘wrong’ beliefs and allegiances.

    Fascists projecting fascism

    at least least two centuries. What these ‘beautiful protests’ ominously trumpet to the world now, is that that writing is fading from the hearts and minds of We The People; a people who are foolish enough to think that those laws can be made to fade away, and yet somehow imagine that those ever lurking beasts of ambition and brutality which they’ve made to stir with temptations of escape, will simply remain docile, tame, and quiet as they are unleashed, rather than break free and do violence to

    Good Lord People, our Government, IS US – it isn’t in our buildings, or in our courts, in our military or even in our written laws, but is in our understanding and respect for them. Our Government lays in our self-government, our willing agreement to set aside the resort to use of force, or the encouragement of it, for peaceful and reasonable dispute and agreement and our willingness to abide by reasonable judgments, even and especially when we ‘lose’ the dispute. If we lose that IN US, then it all falls apart, and cannot do otherwise.

    For those hysterical supporters of ‘Democracy!‘ who are out to overturn or undermine the results of a democratic election, and the Rule of Law, in order to force the rest of us to comply with their desires, you should keep in mind, that for all of your claims of caring about this or that disadvantaged minority such and such – if our respect for our laws, and our expectations of being able to rely upon those law to subdue the violent passions of ourselves and our fellows – if We The People are made to feel that a just government can no longer be counted upon to provide justice and order, then it’s not the powerful who are going to suffer – no, that only happens under a system of laws – it is the weak, the weird, and the non-conformist, who will be made to feel the brunt of the powers unleashed by your discarded and forgotten respect for individual rights under the Rule of Law.

    No one who is weak or in need of assistance, will survive that – and especially not any snowflakes.



  • The Powerful threat from within Representative Government

    Ok, sure, it might be a total Captain Obvious move to point out that the term ‘Representative Government‘, is one that contains two very different words, but what’s less obvious, is the fact that before you can understand why the first of those two word’s meaning is so important, it’s necessary to have a fair understanding of what the second word of the term means, and just how dangerous it is to the meaning and purpose of its first word. As noted in my previous post, the trite heads or tails dilemmas that most of our attempts at discussing such matters are so easily diverted into (‘A Democracy! No, a Republic!‘, ‘Electoral College vs. Popular Vote‘, or ‘He Is/Isn’t my President!‘), do nothing to deepen our understanding of either term, and serve mostly to divert our attention away from the questions we’re supposedly considering. But not even the questions can be compacted into the space of calling heads or tails, and the more you puff up one preferred answer over the other, the further away we are all drawn from a useful discussion of them.

    So, with that in mind, it’s worth reminding ourselves of the basics of what it is that government is, how it derives its power, and how and why it is so important to limit its ability to use that power. As the old saying says,

    ‘Government, like fire, is a troublesome servant and a terrible master’.

    You want to use the Power… don’t you…?

    We don’t need to try and attribute that phrase to one or more Founding Fathers, as it often has been, in order to make the truth of it more important and relevant, especially when we’re so often tempted to turn to govt to impose our very best intentions upon the rest of us. The greatest dangers to our liberty, come from our best intentions to improve upon it. It is precisely when we’re caught up in such
    enthusiasms for ‘doing good!’ unto others, that we’re most in need of being tempered by an understanding from history – that is what it is was that made our form of government possible, it is what made, and makes, it exceptional, and without which, neither it, nor we, can be exceptional – at least not in a good way.

    So what is Government? Stripped of the finery and fanfare:

    Government is the means of harnessing the collective power of a community towards… ends. 

    What those ends are, who determines them and authorizes the pursuit of them, and most importantly, what it, and they, will not be allowed to do, depends upon how well your society delimits the powers of those holding the reigns of power. Where Government gains its power ‘to do’ what it will, is by enforcing claims, in whole or in part, upon the possessions, time and lives of its people, and if there are no limits to its claims or ends, then it will turn the collective power of your society, towards accomplishing whatever those in government (or those with their ear) desire to do, and with all of their very best intentions urging them on to do whatever ‘it’ might be.

    Despite the aspirations of our Declaration of Independence, government does not need your consent – it can gain legitimacy from that, sure – but that’s a later development, a ‘nice to have’ (in the eyes of those in positions of power within it), which is in no way necessary for it to wield its power over you.

    At this point it might be useful to take note of a rather shocking point, especially shocking for those of us, like myself, who look to government as the means of establishing justice and defending our rights, and that point is this: those are not the most basic requirement that a society demands from their government! And with a very grudging nod towards Hobbes, what people do demand, first and foremost, is: Order. As Hobbes put it,

    “…For before constitution of Soveraign Power (as hath already been shewn) all men had right to all things; which necessarily causeth Warre: and therefore this Proprietie, being necessary to Peace, and depending on Soveraign Power, is the Act of that Power, in order to the publique peace….”

    I disagree with him, that that provides either a definition or justification for government, but it is, and should be, a frightening and sobering realization that that is the tipping point of political gravity that is always tugging at our perceptions, eagerly awaiting for us to forget our balance and fall back down to its baseline. That point is extremely dangerous to ignore, or to evade the realization that the government that does not effectively provide that fundamental service, will not stand for long; as a society sufficiently shaken up, will sink to any level, in order to enforce that basic compliance upon its own people, if they think it’ll mean escaping from chaos – real or perceived (and if you think that doesn’t apply to modern man, it’s you who are being primitive in your thinking). That ground floor of order forms what I’ve called the ‘Societal Baseline’, and is what I was pointing out in an earlier post that looked into the Yanomamö Indians in the Amazon, it is what makes the brutality of a tribal thug, preferable to having no order at all, and it is that point which all real progress, is measured through the horizontal (legislative, via Govt) and vertical (ethical, through the people) distance a society manages to put between itself and that baseline.

    The first step of real progress, up and away from that baseline, comes when a society’s begins forming rules for its governance, rather than following exclusively upon the wishes of its rulers, and in making them known for all to see and understand, they give a sign that they are developing what can loosely be called ‘laws’. As societies’ begin doing so, they begin forming political structures that move beyond the moment to moment exercise of brute force, by brutes, and take on the various forms of all of the familiar ___cracys’ and ___archy’s (you remember, democracy, oligarchy, etc), which takes them further up the winding path of Chieftains, Tyrants & Kings, until they finally arrive at the Prime Ministers and Presidents that typically head up what we like to think of as legitimate, Representative Governments.

    If you examine the laws of a society as they progress along that path – if they manage to continue along it – there’s an essential characteristic that you’ll see becoming more and more pronounced, which is what makes it possible for their laws to be able to be regarded as capital ‘L’ “Laws” with a straight face, rather than just an assortment of rules written down by thugs, and it’s a development of an idea that I went into some depth upon in previous posts (two in particular, pt 2:Why a Govt of Laws, and not of men? & pt 3:Who Benefits from transforming Rules into Laws), which, sparing you a few thousand of those post’s words, can be summed up in what’s best captured in two translations of one potent phrase from Aristotle’s Politics,

    ‘The law is reason unaffected by desire’,


    ‘The Law is reason free from passion.’

    The more that a people’s laws adhere to and exhibit that sensibility, the more legitimate they and their Laws, are likely to become – it is the means of putting the point upon the arrow of political progress; pointing their society in the right direction, onwards, upwards, and away from that societal baseline of barbaric order. And while it may seem a bit counter-intuitive, that characteristic, in the raw, is also what is being crudely expressed in that primal desire for the societal baseline of Order; seeking relief from the chaos brought on by violent passions and desires that’ve run rampant. Surprisingly, at least a little bit, it is in seeking that order that they also find that the seeking itself, demands an exercise of methodical reasoning in order to bring even that baseline condition about, and continuing with that, developing and reflecting upon that, refining that, that is the natural means of eventually implementing Laws that one day will tower above the mere scribblings of one or another tyrant’s demands of the moment.

    Following closely on Aristotle’s essential ideal, are two from the Roman jurist, Cicero, with his,

    “No one can be judge in his own cause; Hear the other side”

    , and,

    “True law is right reason in agreement with nature”

    These are also logical developments of Aristotle’s advice to separate your passions and desires from your attempts to realize justice; in pursuing that it soon follows that a fair and impartial hearing should be given to both sides of an issue, it is a result of seriously taking that advice to heart, and as a result, your laws, and the application of them, become more reasonable, and those applying and enduring them also begin seeking conclusions derived from factual evidence, rather than reacting to impassioned desires.

    These are not inventions of The West, they are discoveries about what is common to all of mankind, but they were first fully realized in The West. Following these dictums, and ridding the writing and administering of a society’s laws of personal passions and biased desires, is, in the real sense of making progress away from the baseline, Progressive, and it will be accompanied by a visible increase in the methodical, reasonable nature, of their laws. On the other hand, shedding that quality, seeking to appeal to the passions and desires of the many, is Regressive, and deliberately seeking to do so, while justifying those actions and stirring up the passions of the people in order to satisfy the ambitions of their rulers (whether they be one, or the many), is what I refer to as being Pro-Regressive. If you want to know whether your society’s laws are truly Progressive, or Pro-Regressive, look at how those who propose them, urge you to embrace them.

    The direction that our laws move in can be objectively measured as progress over what came before, moving from chaos, to order, to recorded and predictable rules, to rules which make sense together and integrate with each other, developing a progressively less contradictory nature – reasonable, understandable, and flexible enough to be applied in a variety of circumstances, yet rigid enough to be familiar to, and understood by ‘the common man’; that is the path of progress. As these advanced ideas, and the attitudes which accompany them become the norm, such laws as that people govern themselves through, begin to lose their erratic nature, as both the people and their laws become more ordered, more reasonable, more respectful of their fellows lives.

    The Best of Times, and the Worst of Times
    But as wonderful and profound as such progress is, a society has to be on their guard against their own hubris, for while they may have become convinced of the soundness of their good intentions, the nature of government has not changed – not one bit – and the raw force and power which it is, will seep through such blind spots, like groundwater through an old foundation, progressively saturating and weakening it. Government is power, it is force, it can fine, punish, stifle, intimidate, imprison and persecute, it can kill and it can destroy, it is like fire, a troublesome servant and a terrible master, and if you dare presume that you can fully domesticate such primal forces through law, that you can safely use that primal power best suited to preventing or punishing actions, to initiate and do good unto others for what you consider to be for their own good, then you fail the test of Tolkien’s Ring of Power, and turn towards darkness with all of the urgency and false light of your very best of intentions.

    It is at this point, that the question arises as to who it is that will, and should, write a society’s laws. How are they to be chosen? The means of binding both laws and its officers, from engaging in erratic or passionate actions, is best made by means of those laws themselves being ordered by objectively higher laws (see Cicero’s “True law is right reason in agreement with nature”), so that society becomes compatible with what all can see as being true and right.

     But how will they be written, and how will those charged with writing and attending to them, be chosen? This is where ‘The consent of the governed‘ begins to come into play, but how so? Is their consent to be gathered and given in any way shape, manner or form? Are there good and bad ways to gain that consent? Is it possible to curry that consent in such a way as to subvert the consent of the governed, for the benefit of those who would govern them?

    There’s more to the matter than simply encouraging individual choices and preferences; giving political power to the administration of our laws, if those laws are to be Laws, rather than rules in drag, they must be written and applied in a manner as free from personal passions and desires as is possible. Simply having all of the people of that society participating in that process, appealing to them to ‘express their choice!‘, means putting people into power over the laws, by means of inciting passionate desires for wide approval and calls for collective action, which means turning against the very thing that the Laws, and the administration of them, are designed to bar from issues of Law!

    And yet, the consent of the governed is vital to a ‘Representative Government’ – that’s the puzzle at the heart of the first of our terms, ‘Representative’.

    What the ‘Representative’ portion of ‘Representative Government’ must never forget, is that the 2nd word in its term is representative of a fearsome and dangerous power, one that feeds upon your own confidence in your own ability to master it, and especially through your belief that you can ‘do good‘ by imposing your own best judgment upon the choices that other people are trying to make for their own lives. The 1st word in that term must keep in mind, that it can, at best, tame the beast inherent in the 2nd word, but only as a trainer tames a tiger, and that if you turn your back upon it, thinking that your laws alone will keep it in its place (as if they somehow had the power of judgment outside of your own ability to govern yourself), then you can rest assured that your own government will use them as the means of devouring you, from the inside out.

    Despite all of the fear mongering, the real threats to a ‘Representative Government’ rarely come in the form of thuggery and violence from external ‘others!‘, instead they come upon a society from within themselves, through there own good intentions (and thinly disguised desires), by the means of which Frédéric Bastiat’s understood all too well:

    “Government is the great fiction through which everybody endeavors to live at the expense of everybody else.”

    As a people begin to give in to that con, then soon enough they will discover how the expectations of achieving unworthy ends, through high minded laws, is a most perilous matter. If We The People fail to require that our Representatives be, and be selected by means as free of passionate desires as the laws they are to be in charge of, then the troublesome servant will have become the master of them, once again. Unless they and their laws are bound down by recognizably external, and constitutional fixtures, their representatives will become every bit as representative of the most tyrannical of individual tyrants – and especially as they do so in the name of “We The People!“.

    Progress is made when the people support taking substantial steps towards turning their power towards the service of judgment, rather than passionate desires. The Representative portion of our term ‘Representative Government’, is the means open to us for doing that, at least in part, it is the means of seeking and using good judgment, cool, reasonable deliberation and disinterested action, in service to those interests. But before getting into the best means found for electing the Executive of such a system of laws – the Electoral College – we need to dig a bit more into what we mean by the ‘Representative’ portion, of Representative Government – next post.

  • What gifts has Christmas brought you?

    (With a post from 2011, here’s wishing you a very Merry Christmas!)What meaning is there to be found in Christmas, even by those who find no meaning in Christmas at all?First off, grant that the false alternative of ‘Not all Christians are good, theref…

  • Burning our Freedom of Speech in action

    In light of all the uproar last week over Trump’s questioning of whether burning the flag should perhaps be protected as ‘freedom of speech’, or not, I’ll exercise my freedom of speech by questioning some common assumptions about what freedom of speech is, and isn’t.

    To get the easy part out of the way, here’s Trump’s tweet that started the latest round of ‘discussion’:

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

    , now, even allowing for his ‘perhaps’, the notion of losing your citizenship over burning the American Flag, or being imprisoned for a year, is, IMHO, silly, and further sensationalizes a subject that is already too saturated with it. But, that being said, what we associate with the ‘flag burning issue’ is something that needs a lot more consideration than the two existing poles of ‘Burn it!‘ and ‘Revere it!‘, tend to permit, especially since the burning of the flag is the least important aspect of it, and more often than not, it is a distraction from what the real issue is: our Freedom of Speech… and the rest of the 1st Amendment.

    As much as I disrespect those who disrespect our flag, it’s not the burning of the flag that I have an issue with, from a legal standpoint at any rate. What I do have an issue with, is what has become one of those default ‘givens’ that we hear and have heard over and over, from all sides, for so long, and so often, that we no longer get around to seriously questioning it, and that ‘given’ is the idea that the action of destroying property in as inflammatory a means as possible, can be considered ‘speech’ – let alone constitutionally protected speech. For decades I’ve heard that position being asserted (from the Left, and now even from the Right), and while I’ve heard objections to it being ridiculed, I’ve rarely heard the assertion really being questioned, and it seems like maybe it’s about time to begin doing just that.

    Here’s the text of the 1st Amdt:

    “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

    Simply reading the text of it isn’t enough though, you need some understanding of what the idea is, and why it was considered important to prevent the Govt from infringing upon it, before you go attributing your own preferred meaning to it. If it’s been a few years since you’ve done anything of the sort, here are a few links worth reading, beginning with the ideas and debates that went into writing it, up to the case most often referred to in flag burning discussions, Texas v. Johnson:

    In reading these cases and comments, and thinking about what is meant by ‘Freedom of Speech’, it seems to me that most of the judgments attributing the actual burning of flags (or draft cards, etc) to being a form of speech protected under ‘freedom of speech’, or to ‘symbolic speech’, are not only inappropriate, but they cheapen, degrade, and dangerously blur that concept of speech which the framers of the amendment were seeking to preserve and defend. The treatment of the action of burning objects as that were equivalent to speech, waters down and weakens our understanding of what Freedom of Speech is and was meant to be, which I think jeopardizes our hold on this fundamental right far more than even an authoritarian government ever could.

    Examples of just that are easy to find in our recent news headlines, with masses of people
    disregarding the rights of others as they press on with the intention to ‘exercise their own rights‘, by obstructing the free movement of others, and battering or burning their persons, cars, stores, and neighborhoods in riotous actions which they then turn around and righteously justify as being ‘peaceful protests‘ with comments such as,

    ‘It’s a small price to pay for exercising our 1st Amendment Freedom of Speech!’

    Is it really?

    Since we’ve accepted the idea that the destruction of property, when wrapped up in the flag, magically becomes constitutionally protected speech, how coincidental can such rioting in the streets be?

    I suppose that I should probably now get a few things clear about what I’m not saying or questioning, or leaving out of my consideration – I’m not in any way calling into question the need for that foundational liberty of Freedom of Speech to be vigorously defended. The freedom of speech, the ability to express our ideas – even and especially offensive ones – is a vital component of any society that hopes to have, and preserve, the liberty of its people.

    Neither am I questioning the importance of defending the right to political or artistic speech, whether impromptu speech, or as expressed in writing, spoken or performed on stage or on screen, or as in more symbolic forms, such as painting or sculpture, etc. Such measures which illustrate and convey ideas, despite how foul they might seem to me, they are, and should be, protected under the freedom of speech.

    Nor am I in any way questioning the right to peaceably assemble, or to petition government for redress – or for that matter Religious Liberty, on the contrary, and to borrow a phrase, ‘They must all hang together or we will surely all hang separately‘, and the reason I’m questioning this, is to strengthens these vital rights, by thinking them through.

    One thing that I’m definitely not doing though, is questioning whether those actions which destroy the property of another, or doing so on someones property without their permission, actually is – that is not freedom of speech, it’s simply vandalism, as well as an assault upon the political anchor of all of our liberties, property. Such pure vandalism and destruction of property warrants punishment in its own right, before any questions or rationalizations of ‘speech’ come into consideration. Destructive actions which violate the rights of others, are not conveying speech (BTW, when violent and destructive actions are committed for political purposes, doesn’t that flirt with being categorized as terrorism?).

    A clear distinction needs to be made between that of peaceably assembling, petitioning for redress of grievances, giving voice to your dissatisfaction with government, and the action of destroying another’s property, and it is of vital importance that the difference be clear in the minds of We The People. That our Supreme Court has not been especially careful in in that area, IMHO, borders upon negligence, and has borne much poisonous fruit.

    Special Effects are not Speech
    So again, my question isn’t centered around the flag, or any other symbol, but upon the notion that the inclusion of the flag can somehow transform an overtly intimidating or destructive action, into protected speech, without benefit of actual speech or even an artistic representation of it. What I’m questioning, is, whether expanding the range of things protected under the freedom of speech so as to encompass such things as the violent destruction of symbols, strengthens our liberty, or corrupts and weakens the concept of it, and jeopardizes our ability to sustain and enjoy that very liberty that we’re all supposedly so concerned in protecting.

    For instance, let’s remove those things I consider objectionable from the action and see what we wind up with. Let’s say a person bought and paid for the flag themselves, and either went to their own property, or secured permission to another’s property for that purpose, and without any credible effort to incite violence, with no chanting or protests or rude behavior of any kind involved, they simply, calmly, and without saying a word, set the flag on fire.

    Would that be an expression of ‘freedom of speech’?

    If you said ‘yes’, can you explain to me why?

    What I’m wondering is, what is it that you think those flames are saying to you? Do they speak to you of objections? Protests? Displeasure? Hatred? And if so, with what? Foreign policy? Racism? The particular cotton and rayon blend that the flag was printed upon? A dislike of Americans or just for American policy? Explain to me how you know that those sly whispering flames aren’t simply expressing a dislike of the IRS… or of Hollywood, or of any of those other ‘reasons’ I just mentioned?

    If you just tried to put your feeling into speech, you probably found that the specific action of burning the flag is unable to communicate anything of relative certainty, unless it is accompanied by either hostile or reverent actions. And yet even the simplest speech, even dryly and robotically repeating the very chants cited in Texas v. Johnson ‘s “America, the red, white, and blue, we spit on you“, repeating that without any emotion or inflection, or even silently printing that chant out in block letters and without the accompaniment of any visual effects at all, even then, those words clearly communicate an unambiguous dissatisfaction with America. Don’t they?

    Why does the former communicate no clear meaning on its own, while the later is clear under any circumstances?

    The answer is that only one of them is actually a form of speech, and the other is nothing more than a theatrical prop for that speech, a visual special effect, a theatrical contrivance to emphasize an idea, but it is not an idea itself, and so as it contains no communicable idea on its own, it is devoid of the attributes of speech, which is what that portion of the 1st Amendment is there to protect, preserve and safeguard: our ability to entertain and meaningfully communicate ideas in art, discussion and debate.

    And to go a step further, while people assume that burning the flag ‘expresses displeasure’, why are we so quick to flatly assume that it is expressing their dislike of the flag, or even of America? Because it’s on fire? Since the point of arguing that such ‘symbolic action’ is protected speech, can you rightfully ignore that the custom of those who revere the flag, is to burn any flag that’s been soiled, as an expression of their respect for the flag? Or to break it down to the ridiculous, do flaming birthday candles express displeasure of the candles, cake or who you’re presenting them to? Does lighting off fireworks express our displeasure with America? Were the Vikings or American Indians expressing their displeasure for the dead, when they burn their bodies on a funeral pyre?

    If the act of lighting the flag on fire, in and of itself, is ‘speech’, then isn’t it a very strange and mute kind of speech that doesn’t seem able to communicate any one particular kind of thing at all? It is confused or even mute, because burning the flag is an emphatic action, but it is not in itself, speech, or even a substitute for it. The 1st Amendment protects speech, not each persons indistinct and pre-verbal feelings of angst.

    It is ridiculous to pretend that burning a symbol to ashes somehow gives off ‘speech’ – how, in the smoke? By way of some sort of chemical reaction? It is untenable. Those who run up and burn the flag are very likely doing it because they despise something about America, but in justifying such actions as speech, by stretching the concept of what constitutes speech to the point of setting a flag on fire, can that really ‘speak’ anything meaningful to us at all? To say that it can, seems ridiculous to me.

    With the above in mind, take a look at the summary of the SCOTUS case of Texas v. Johnson :

    “JUSTICE BRENNAN delivered the opinion of the Court.
    After publicly burning an American flag as a means of political protest, Gregory Lee Johnson was convicted of desecrating a flag in violation of Texas law. This case presents the question whether his conviction is consistent with the First Amendment. We hold that it is not.
    While the Republican National Convention was taking place in Dallas in 1984, respondent Johnson participated in a political demonstration dubbed the “Republican War Chest Tour.” As explained in literature distributed by the demonstrators and in speeches made by them, the purpose of this event was to protest the policies of the Reagan administration and of certain Dallas-based corporations. The demonstrators marched through the Dallas streets, chanting political slogans and stopping at several corporate locations to stage “die-ins” intended to dramatize the consequences of nuclear war. On several occasions they spray-painted the walls of buildings and overturned potted plants, but Johnson himself took no part in such activities. He did, however, accept an American flag handed to him by a fellow protestor who had taken it from a flagpole outside one of the targeted buildings.

    The demonstration ended in front of Dallas City Hall, where Johnson unfurled the American flag, doused it with kerosene, and set it on fire. While the flag burned, the protestors chanted: “America, the red, white, and blue, we spit on you.””

    This portion of it, I’m in full agreement with, that the govt has no case or place in opposing:

    “…While the Republican National Convention was taking place in Dallas in 1984, respondent Johnson participated in a political demonstration dubbed the “Republican War Chest Tour.” As explained in literature distributed by the demonstrators and in speeches made by them, the purpose of this event was to protest the policies of the Reagan administration and of certain Dallas-based corporations. The demonstrators marched through the Dallas streets, chanting political slogans and stopping at several corporate locations to stage “die-ins” intended to dramatize the consequences of nuclear war….” and “…the protestors chanted: “America, the red, white, and blue, we spit on you.”

    If we assume the best case scenario about the manner in which protesters might have marched through the streets, that much warrants the protections of the 1st Amendment’s to peaceably assemble, and somewhat less clearly, it can make a credible claim to the 1st Amendment’s protection to petition their govt with grievances, and of course the Freedom of Speech.

    But in this portion, however, I do not, and I do not see how anyone can make a credible and legitimate case for claiming to be consistent with a respect for Individual Rights under the Rule of Law, as it is nothing more than violent and destructive actions to the public peace, and to private property, which constitute an assault upon the rights of others:

    “…On several occasions they spray-painted the walls of buildings and overturned potted plants, but Johnson himself took no part in such activities. He did, however, accept an American flag handed to him by a fellow protestor who had taken it from a flagpole outside one of the targeted buildings.

    The demonstration ended in front of Dallas City Hall, where Johnson unfurled the American flag, doused it with kerosene, and set it on fire. …”

    That is neither practicing nor respecting the right of the people to peaceably assemble, nor to petition their Government for a redress of grievances, nor does it intelligibly convey the reasons for doing so, which is what speech is, and is for – which is a point what Montesquieu was getting at in the link above, where he said,

    Words do not constitute an overt act; they remain only in idea.

    , and conflating them with action, is dangerous to the defense of both. This passage,”While the flag burned,” should be separated from ‘…the protestors chanted: “America, the red, white, and blue, we spit on you.” by more than a comma; the later portion is the actual speech with which our liberty depends upon us to protect, while the former, ‘while it burned‘ is nothing more than a special effect to highlight that speech which was spoken – and again, special effects are not themselves speech.

    Burning the flag is an action, not speech, it’s just you burning stuff while stomping your feet, and the more we move towards seeing them as one, the closer we come to putting our freedom of speech in real jeopardy. If you make emotional actions equivalent to speech, you not only encourage the notion that attacks upon persons can be permitted as ‘expressing your freedom of speech’, but you will eventually find, when things go too far, that actual speech will be curtailed, along with such violence, when people have finally had enough of it. You cannot conflate the two, without eventually putting both in great peril.

    If you want to express your displeasure with America in a way that can claim the protections of our freedom of speech, and do so in a manner that doesn’t impinge upon the those other measures protected under the 1st Amendment, then you need to be using words, or clear substitutes or symbols for them. And if you accompany those words with the action of a flaming flag, be aware that those flames only accent the speech, they are not speech itself. Burning the Flag, the symbol of America, is an action, not speech. It is not even properly symbolic, it’s but the active and meaningless destruction of a meaningful symbol. At best such protesters are using destructive or intimidating actions to express FEELINGS! and LOUD NOISES!, but nothing that can be understood as speech.

    What can’t be understood or communicated, can’t be said to be speech – feelings, yes, but not speech, and our 1st Amendment, thank God, does not protect your feelings. Only modern colleges attempt to do that.

    Symbols speak for themselves – destroying them silences that speech, while expressing only your preference for destructive actions, over thoughtful speech
    The flag is, of course, a symbol, and a particularly rich one, deep with meaning in its Stars and Stripes, symbolizing our defining principles of liberty under the Rule of Law established to limit the fearsome power of government, to the purpose of upholding and defending the lives, individual rights and property of its citizens, as citizens, who are regarded as equals before their laws.

    We’ve already seen how poorly the action of burning a flag puts anything intelligible into speech, but does it do any better symbolically? What symbolic speech does the flag burner convey by destroying the symbol of our nation (or any other symbol, for that matter)? I’m not asking why they burn it, or for an evaluation of it, only for you to tell me what it says – can you?

    Are they attempting to symbolically express their dislike for those particular men who fell short in living up to what our flag symbolizes? Or is it their dislike for the worthy ideals that some or many particular people fell short in defending? Are they symbolically criticizing those high ideals, or those who failed to live up to them? Does allowing any ambiguity in that distinction make any damn sense at all? On such an important question, the flag burners are, by their own actions, unfit to express their pre-conceptual angst, seemingly mute before it, unable to do anything but give vent to their emotions by destroying a symbol of elevated concepts and values which they apparently can’t begin to understand or put into words themselves. In a very real sense (though perhaps not legally actionable), burning the flag, is itself an assault upon the spirit of the 1st Amendment, and by means of something other than what it stands in defense of.

    Symbols are able to convey deep concepts and the highest thoughts of ordered speech, and it takes more than destroying those symbols to elevate such destruction to an equivalent level of thoughtful speech. Destroying the symbol of such thought does not itself create or convey thought, it only destroys it, symbolically, or actually. To take it to the extreme, in murdering Martin Luther King as the symbol of the Civil Rights movement, James Earl Ray did not express any ideas worthy of protecting, he did not communicate one iota of speech, point of arguments or words of eloquence, he merely murdered a greater man than he was. MLK is such a powerful symbol today, because he was supremely capable of eloquently communicating high ideas and arguments, through words, and through moving and meaningful symbols of liberty – and the 1st Amendment afforded him the protection of the law to do that, no matter how the Bull Connor’s in Govt at the time desired to revoke his freedom to put those ideas into speech.

    The destruction of symbols, living or inanimate, do not constitute speech, actual or symbolic, they only seek to put an end to such speech. Destructive actions such as that convey no more speech than a savages’ incoherent howl.

    By setting such a symbol as the American Flag on fire, people at best identify themselves as being incapable of freely expressing even a single criticism in words that others can understand – and they show no respect for the need to; they display themselves for all to see as better suited to the savage barbarity which the accepting of such actions as speech is most likely to engender and spread.

    Burning the flag is not, and cannot be, speech – it is only a destructive action, nothing more. In certain contexts it may deserve to be protected; the 9th amdt affords enough unenumerated rights and powers to individuals, to secure and preserve legitimate means of protesting, and I’m sure that a clever lawyer could, and probably should, be be able to cite a defense for people who wish to add such theatrical emphasis to their speeches – if they can do so without violating the rights of their fellow citizens – but it still does not fall under the banner of the Freedom of Speech.

    The question we should be asking ourselves now is not what Trump tweeted or how to punish anything other than arson, but questioning what it is that accepting such actions as speech does to our own understanding of what speech is. And we should question what must surely follow when such barbaric actions are elevated to the level of civilized speech, and unwisely defended on the same grounds, as if they were the same thing – such equivocations can’t help but be dangerous to all of our liberty.

    From out of the ashes
    So if I’m correct in saying that neither vandalism nor violence, can be considered to be ‘freedom of speech’, what do you suppose it is that we’ve invited into our popular consciousness, by saying that such actions are the equivalent of speech? Doesn’t making the claim that such actions are protected forms of speech, say that you have a constitutionally protected right to commit vandalism and violence? That seems as ridiculous as saying that ‘peaceful protests’ can involve forcibly prevent other people’s freedom of movement in going about their lives, destroying public and private property, and rioting in the street.

    I’m not attempting to elevate the flag to the status of a protected object (but aren’t the flag burners actually attempting to surreptitiously do just that?), or to make burning it a taboo – if you want to burn the flag, buy one, take it to where you have the right to burn it, and burn it, gather around the flames and chant over it, broadcast it, stream it, do it however you’d like; flame away to your hearts content. I would not dream of forbidding that to you, and in fact I worry that attempting to extend government power to the preservation of such worthy symbols, does put the liberty it symbolizes in jeopardy.

    In his dissent to the Johnson v. Texas case, Justice Rehnquist went into a long review of the origin and symbolism of the flag which I think is relevant only in so far as to establish that burning it is an intentionally provocative action, meant to provoke a reaction or to be suffered in silence, by those witnessing it,

    “…In Chaplinsky v. New Hampshire, 315 U.S. 568 (1942), a unanimous Court said: “Allowing the broadest scope to the language and purpose of the Fourteenth Amendment, it is well understood that the right of free speech is not absolute at all times and under all circumstances. There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or `fighting’ words – those which by their very utterance inflict injury or tend to incite an immediate breach of the peace. It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.” Id., at 571-572….”[emphasis mine]

    , and he notes what I partly agree with, and partly find fault with:

    “… The result of the Texas statute is obviously to deny one in Johnson’s frame of mind one of many means of “symbolic speech.” Far from being a case of “one picture being worth a thousand words,” flag burning is the equivalent of an inarticulate grunt or roar that, it seems fair to say, is most likely to be indulged in not to express any particular idea, but to antagonize others. Only five years ago we said in City Council of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 812 (1984), that “the First Amendment does not guarantee the right to employ every conceivable method of communication at all times and in all places.” The Texas statute deprived Johnson of only one rather inarticulate symbolic form of protest – a form of protest that was profoundly offensive to many – and left him with a full panoply of other symbols and every conceivable form of verbal expression to express his deep disapproval of national policy. Thus, in no way can it be said that Texas is punishing him because his hearers – or any other group of people – were profoundly opposed to the message that he sought to convey. Such opposition is no proper basis for restricting speech or expression under the First Amendment. It was Johnson’s use of this particular symbol, and not the idea that he sought to convey by it or by his many other expressions, for which he was punished.”

    What I agree with, is

    “… flag burning is the equivalent of an inarticulate grunt or roar that, it seems fair to say, is most likely to be indulged in not to express any particular idea, but to antagonize others…”

    That’s spot on. Which leads to what I disagree with him on, and what I believe undercuts his case, that such actions can then be considered to be “symbolic speech” while at the same time, not be speech. It can be an action, a special effect, a provocation, but it is not symbolic or a symbol, it is only the destruction of a symbol, and should not, cannot be, considered to as speech – symbolic or otherwise. And while I thoroughly understand and agree that the Flag is properly loaded with symbolism, and that it plays a vital role in the hearts and minds of Americans, I do not believe that the govt can play a role in preserving or protecting it.

    Govt can act on the secondary results of the burning of the flag, in that recognizing such actions as Johnson’s were intentionally provocative ones, and were designed to arouse spiteful emotions, and therefore was an act of incitement, which is actionable, in terms of preserving the peace. But I do not think it can have a role in actively protecting our flag as a symbol of America, from Americans. Not because it isn’t a vital symbol, and not because such a thing would be improper for govt to do, but because taking on such a role, for such a purpose, cannot adequately be defined and delimited, without giving the government such power as that role would inevitably turn towards preventing and silencing actual speech, in the name of the symbol of that liberty. Despite Rehnquist’s criticism of an earlier court’s comment, that the SCOTUS took,

    ‘… its role as a Platonic guardian admonishing those responsible to public opinion as if they were truant schoolchildren has no similar place in our system of government…’

    that is pretty much where a prudent evaluation of the matter must end up at.

    While I sympathize with those who’d like to pass a law protecting the American Flag, the power that such a law would give to government would be impossible to contain, and would soon be used to destroy the liberties which that flag stands for. We cannot protect the flag through laws, but only by better understanding what it stands for, and by reasoning with, or speaking out against, those who’d put both flag and the understanding of it in peril.

    Wrap Liberty up in the Rule of Law, not the Flag
    To wrap it up, what I’m saying is that the idea that destroying a symbol can somehow transform provocative actions into speech, without benefit of actual speech, or even an artistic representation of it, is a danger to actual speech.

    You could of course actually paint, speak, stage or film yourself destroying revered and symbolic objects, even including in your ‘art’ the burning of property, even dramatically punching a judge in the face, and get away with calling that artistic expression – in a theatrical setting. But the ‘fourth wall’ is a very real one, and if you step beyond it into ‘real life’ and physically walk up to someone and destroy their property or punch them in the face, you’re not going to get away with calling that either political, artistic, or symbolic speech. It is only violence, and nothing more, and engaging in it carries you across the Fourth Wall from the theater of art, and into a Hobbesian theater of war of all against all; a warring on speech, on property, and so on Individual Rights and the Rule of Law.

    What those who think of themselves as defenders of ‘free speech’ are doing, in redefining what speech is, is extremely dangerous. When a definition is stretched to the point of including that which it is clearly not, along with what is so essential to what it actually is, that is not strengthening the concept which such actions are hiding behind; you are not broadening the identity of speech by doing so, you are corrupting, weakening, and slowly destroying it where it really matters, as questions of ‘what the meaning of ‘is’ is‘ operate like termites in our common understanding. By accepting broad and watered down redefinitions of what speech is, we’ve opened the door to tyrannical abuses of our core rights and liberties, by those who seek to dominate us through such actions, wrapped up in the flag as if they actually were instances of speech. The consequence of our having made such errors, are brutally visible in the popularity of the belief that riotous ‘peaceful protests’ should be tolerated because they have ‘1st amendment protections!‘, as one enthusiast described protesters marching through traffic, terrifying the car’s occupants, damaging their vehicles, and smashing store windows as they passed.

    A glorious symbol that is best protected in the hearts and minds of We The People

    How free can Freedom of Speech be, when protecting the Freedom of Speech of some, entails infringing on, or ending the ability of others, to peacefully discuss  or act under such ideas? In our swallowing that position as being a legitimate one, I think we’ve swallowed a poison pill.

    What seems apparent to me, is that by allowing what is not speech, to be protected as if it were speech, we are jeopardizing our Freedom of Speech by allowing the indiscriminate exercise of physical force and violence to mask itself as being speech, and in so doing makes the freedom of speech – and our liberty – that much less secure.

    If anyone has an argument to show me where I’m going wrong here, I’d dearly appreciate your speaking up.

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