teacherken's musings on everything

Yesterday I wrote a diary entitled I am tired, but not that tired in which I expressed my resolution not to support those who would support the Flag Amendment. I wrote in part

Congressmen, Senators, and candidates -- if you support the Flag Amendment you will forfeit my vote and my support -- and should it become a part of our Supreme Law of the Land, my rejection of you will be permanent. State legislators, I will hold you to the same account. Our Constitution should rarely be amended, and then the most important reason should be the expansion of liberty and its protection, as we saw in the 1st, 2nd, 3rd, 4th, 5th, 6th,, 7th, 8th, 9th, 13th, 14th, 15th, 17th, 19th, 23rd, 24th, 25th and 26th Amendments and in the 21st repealing the one time we did otherwise in the 18th. No one should be voting to change our Constitution to restrict liberty and freedom. The very thought is an abomination in the Biblical sense of that word.

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Now I ask your help.


I am firm on my position. I am however but one voice, that of a 60 year old teacher of no particular importance. I have but one vote, and very little money to spend on political endeavors. By myself I will have little impact.

I believe it is now time for those of us who care about this nation to insist that those who would represent us listen to our voices on how deeply we care for our Constitutional rights. I believe the vote on the flag amendment provides such an opportunity.

I would like see to see a blogswarm. I would like to see those who have their own blogs post on this issue, and as we did with Gonzales, have someone (with greater html skills than I possess) accumulate a linked list of all those posts.

I want to see a commitment that we will not only stand for no further rollbacks of the Constitution and Bill of Rights, we also demand the restoration of our rights to what they were supposed to be.

I will gladly support those politicians who recognize that if we do not maintain our Constitution in all of its fullness, then the terrorists have won and destroyed our liberty, our democracy.

We are supposed to be a government of laws and not of men. In 1776 we turned to rebellion because of the tyranny of a king. I do not propose that we either voluntarily or by acquiescence return to a time where our rights and liberties are subject to to the whims of political leaders.

Lest any reader think the confrontation I request is not important, I want to you think seriously of the consequences. The proposed amendment would be the first constitutional limitation of the First Amendment rights which are so basic to our system. That amendment begins with our religious liberties because the Founders understood how religion could be used to suppress liberty, because they knew the recent history not only of England and the Continent, but also of the early settlement of this nation. The other four freedoms of the First Amendment are essential guarantees that we need in order to fully function as “we the people” - the true sovereigns of this nation. Restrict our political rights and we will cease to live in a democratic republic.

We have had attempts at forced conformity before, but they were legislative. And because the Constitution is the Supreme Law of the Land Justice Robert Jackson could write in his brilliant opinion in West Virginia State Board of Education v. Barnette 319 US 624 (1943) the following as the Court banned mandatory participation in Pledge of Allegiance Ceremonies:

National unity as an end which officials may foster by persuasion and example is not in question. The problem is whether under our Constitution compulsion as here employed is a permissible means for its achievement.

Struggles to coerce uniformity of sentiment in support of some end thought essential to their time and country have been waged by many good as well as by evil men. Nationalism is a relatively recent phenomenon but at other times and places the ends have been racial or territorial security, support of a dynasty or regime, and particular plans for saving souls. As first and moderate methods to attain unity have failed, those bent on its accomplishment must resort to an ever-increasing severity. As governmental pressure toward unity becomes greater, so strife becomes more bitter as to whose unity it shall be. Probably no deeper division of our people could proceed from any provocation than from finding it necessary to choose what doctrine and whose program public educational officials shall compel youth to unite in embracing. Ultimate futility of such attempts to compel coherence is the lesson of every such effort from the Roman drive to stamp out Christianity as a disturber of its pagan unity, the Inquisition, as a means to religious and dynastic unity, the Siberian exiles as a means to Russian unity, down to the fast failing efforts of our present totalitarian enemies. Those who begin coercive elimination of dissent soon find themselves exterminating dissenters. Compulsory unification of opinion achieves only the unanimity of the graveyard.

It seems trite but necessary to say that the First Amendment to our Constitution was designed to avoid these ends by avoiding these beginnings. There is no mysticism in the American concept of the State or of the nature or origin of its authority. We set up government by consent of the governed, and the Bill of Rights denies those in power any legal opportunity to coerce that consent. Authority here is to be controlled by public opinion, not public opinion by authority.

To believe that patriotism will not flourish if patriotic ceremonies are voluntary and spontaneous instead of a compulsory routine is to make an unflattering estimate of the appeal of our institutions to free minds. We can have intellectual individualism and the rich cultural diversities that we owe to exceptional minds only at the price of occasional eccentricity and abnormal attitudes. When they are so harmless to others or to the State as those we deal with here, the price is not too great. But freedom to differ is not limited to things that do not matter much. That would be a mere shadow of freedom. The test of its substance is the right to differ as to things that touch the heart of the existing order.

If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein. If there are any circumstances which permit an exception, they do not now occur to us.

We think the action of the local authorities in compelling the flag salute and pledge transcends constitutional limitations on their power and invades the sphere of intellect and spirit which it is the purpose of the First Amendment to our Constitution to reserve from all official control.

Please note the words that I have bolded. This proposed amendment would undermine the very basis of this decision. It would also open the door to further undermining of the basic liberties that have since 1791 distinguished us from just about every other nation on the face of the earth. And were it to be ratified, it would almost certainly lead to further attempts to undermine our basic liberties.

To any politician who is worried that the voters might not understand the importance, I say “lead!”. You have taken an oath (or in the case of Rush Holt I suppose an affirmation) to support the Constitution, and in the case of the President to the best of his/her ability preserve, protect and defend the Constitution of the United States. I fail to see how you can fulfill that oath by abandoning the basic constitutional principles you swore or affirmed to uphold. Far too many have acquiesced in the attempted gutting of these basic liberties in the name of security. I see nothing in the Constitution that carves out such an exception. You need to stand on your oaths and affirmations - and those of you who seek to be our political leaders should be aware of the oaths and affirmations to which you must assent in order to assume the office for which you seek our votes and support.

Far too many of our citizens do not understand the importance of the defense of minority and even obnoxious points of views and actions. Our system in designed to protect against the tyranny of any majority, temporary or permanent, political or religious, by race or gender.

When they signed the Declaration which put themselves in opposition to King, Parliament and country, those gentlemen in 1776 made a commitment. It is worth remembering that they assented to the following:

And for the support of this Declaration, with a firm reliance on the protection of divine Providence, we mutually pledge to each other our Lives, our Fortunes and our sacred Honour.

It is almost 230 years since men like Hancock, Franklin, Carroll, Gwinnett, Paca, Jefferson, Rush, John and Samuel Adams, Sherman, Gerry, Rodney, Stockton, Hopkinson, and the many more made that commitment. The Constitution was ratified in 1788, the Bill of Rights in 1791, and the 14th Amendment in 1868. In all of our history the only restriction on our rights added to the Constitution was the 18th Amendment in 1919, and we had the good sense to repeal it in 1933.

We have struggled throughout our history to balance liberty and order, freedom and security. Courts and legislatures have wrestled with how the mighty words of the Constitution and its amendments should be interpreted and implemented in statute and opinion. At times the judgments have been flawed, and required further corrective action. All of this has taken place within the framework of a stable Constitution. Since 1791 we have ratified a total of 17 Amendments in 215 years, of which we have 15 in effect (given that the 21st is a nullification of the 18th). We should change the structure of our Constitution only when absolutely necessary, and the primary reason should always lead in the direction of protecting us against tyranny (as one can argue the 22nd Amendment was intended to do) and in ensuring and increasing our liberty.

July 4th again approaches. So it is worth remembering a key part of the document we honor with our celebrations that day. As a teacher of government I recognize that it is not a governing document the way the Constitution is. But it states clearly our understanding of the nature of government in general. Please note what I have bolded:

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. --That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, --That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.

I have drawn a line in the sand. I am taking a stand on behalf of our Constitution, and thereby on behalf of our democratic republic. I cannot in good faith or honesty give any support to anyone unwilling to stand up for the Constitution. I recognize that there will be many who will read these words who will think that the position I take is too extreme, that I am being rash in making this demand at this time, that perhaps there will not be 67 votes for the atrocity of an amendment that so upsets me, or that even if it comes out of the Congress we can use it as an issue to fight in the states. I cannot agree.

For me this issue is too basic. I would never burn a flag, except in accordance with the flag code to destroy a soiled or torn flag. I would not deface one. I acknowledge that it is an important symbol for many, but I will also not recite the Pledge nor participate in the Pledge ceremony. I give allegiance to the Constitution of the United States, and affirm to the best of my ability my commitment to preserve, protect and defend it. I am not the President, but as his sovereign (for I am one of “we the people”) I must be equally bound to its preservation.

I have a power of expression and a freedom to use that power to try to convince others. I know not how effective I will be. I also know that I have a responsibility to use whatever freedom and power I have to defend to the maximum the freedom of others, or else my freedom is meaningless. I do not accept the limitation of expression whether it is political, religious, artistic or even simply juvenile. Without freedom of expression there is no possibility of change. Without the possibility of change we would still have slavery because the speech of abolitionists would have been restricted, women would still not vote or own property in their own names, Jews and other non-Christians would still not be able to hold public office in Maryland. There are still too many who are denied the plenitude of individual rights, and not all the rights we should be guaranteed have their protections clearly delineated in the Constitution and its Amendments.

I will agree to amending the Constitution to guarantee a right to vote, not merely to say that it cannot be denied because of race, age, by poll tax, by gender. I will certainly support an amendment which clearly affirms a right of privacy which would make clear that the actions of the NSA and other government agencies that have violated our individual privacy without oversight or control are not acceptable in a constitutional democracy,

But if I remain silent while demagogues seek political advantage in perverting the principles of our constitution, then I become complicit in that silence, and that I cannot do.

I will conclude with words from a man whom in many ways I do not admire -- as one of Jewish background I cannot be fond of Martin Luther. And yet in each man there is, as George Fox points out, that of God. I find appropriate for this diary to end with the famous words of Luther:

Hier stehe ich und kann nicht anders!

The translation is simple: Here I stand and I can do no other.

I hope I do not stand alone, but if I must, I will.


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