Flag Burning Research Articles

Fletcher on loyalty and universal morality

George Fletcher's Loyalty: An Essay on the Morality of Relationships is a challenging, provocative essay on the moral status of loyalties and personal relationships. Fletcher tells us that this focus on loyalty grew out of a sense of dissatisfaction with the moral universalism of Kant, Bentham, and political liberalism. Like other personalists and communitarians, he seeks to raise the status of personal relationships and explore the implications of making them central. This leads him to interesting discussions of many issues: flag burning, the legitimacy of flag salutes and other rituals to inculcate patriotism, surrogate parenting, idolatry, and religious liberty. What ties these diverse discussions together is Fletcher's desire to move away from a kind of knee jerk liberalism that always gives priority to individual rights over community needs and that stresses consent and voluntary action as the primary (or sole) sources of moral and political obligation. Flectcher emphasizes the involuntary nature of many obligations and the importance of personal and communal relations in our moral life. I have much sympathy with Fletcher's desire to take loyalty seriously. Like him, I formed my initial views about loyalty during the years of the Vietnam war. Resistance to patriotism seemed the appropriate response at a time when loyalty seemed to mean no more than support for an unjustified war. Re-reflecting on these issues in the 1980s, it became apparent that unbridled forms of individualism need to be counterbalanced by a concern for the good of the community.(1) Patriotism may be something that we need, even if its traditional forms can be used to encourage uncritical support of unjust wars. I admire and support Fletcher's desire to get beyond dogmatic reactions and rethink issues having to do with patriotism and community obligations. Nonetheless, I think that he goes badly astray in his criticisms of moral universalism and that his analysis of loyalty is mistaken in important ways. It is these weaknesses that I will focus on in this paper because they need to be remedied if we are to understand the issues that perplex Fletcher and to solve the problems that motivated his book. Loyalty While Fletcher's title leads one to expect a systematic analysis of the nature of loyalty, much of his discussion focuses on particular situations involving loyalty. There are long discussions of Antigone, for example, and of Abraham's willingness to obey God's command to sacrifice Isaac. In general, he does not attempt to articulate or defend a general theory of loyalty. Nonetheless, in various places, Fletcher makes a number of general claims about the nature of loyalty. I want to focus on three that I believe are both important and mistaken. The first involves the logical structure of loyalty. In Fletcher's view, loyalty is always a relation among at least three parties. As he writes: There are always three parties, A, B, and C, in a matrix of loyalty. A can be loyal to B only if there is a third party C (another lover, an enemy nation, a hostile company) who stands as a potential competitor to B, the object of loyalty. [8](2) This is an interesting view of the structure of loyalty, but I do not believe it is correct. While it is certainly true that loyalty to a person or group can be threatened by the possibility of a shift of loyalty to some competitor, it is an important fact that loyalties can also be threatened by indifference and diminished concern. Both loyalty and disloyalty can exist in the absence of competitors. A parent can fail to be loyal to his children, for example, by neglecting the task of tending to their growth. He need not do this because he has found other more attractive children to care for. He might simply loses interest in his own. Or, a husband can fail to be loyal to his wife by being indifferent to her. If he fails to provide her support and affection when they are needed, this is a failure of loyalty, whether or not it is caused by his becoming involved in a competing relationship with another woman. …

The commonality of loyalty and tolerance

The essays in this symposium are gratifying for a number of reasons. First, the six writers, including the editor John Kleinig, have read me fairly and obviously understood my central claims. Their comments testify to the possibility of productive discourse on these difficult philosophical issues. I do have some quibbles with Nathanson's stressing my treatment of minimal loyalty and ignoring my chapter on maximal loyalty, but there is no reason to bore the reader, who would do better to read Loyalty than endure a defense of my vies on tangential points. Further, the topics that the reviewers have selected for criticism are partly predictable, partly refreshingly idiosyncratic. It never occurred to me, as Oldenquist argues, for example, that my position on public flag burning had something in common with Lord Devlin's views on punishing private homosexuality. The difference between Devlin and myself, it seems, is quite simple. If Devlin lived in a society where homosexuality were the norm (and children were produced in laboratories), he would presumably defend the practices of the Queer Nation against those who enjoyed the unnatural practice of meshing different kinds of genitalia. The same thought experiment does not extend to flag burning and other acts of public indecency. Burning the flag every day would hardly have a point: that ritual would become as banal and meaningless as using fuck in every sentence. And if we lived in a society in which corpses were served up for lunch, one might well come upon the idea that we would all feel better about our bodies and our spirits if we changed our ways. Public fornication could conceivably become so normal that no one would notice it, but I tend to doubt that we could become so callous in our sexual vulnerability. Our sentiments of indecency draw on sources deeper than conventional morality. There is happily little in my argument that intersects with Devlin's brand of moral priggishness. The more predictable challenges to my arguments are Ewin's balking at my treating loyalty as a virtue in itself and the related argument, raised in several papers, that loyalty is in fact compatible with the impartial ethics of Kant and Bentham. Marantz's probing when we actually act out of loyalty highlights the same concern. Whether loyalty is an intrinsic value is indeed a difficult and enduring question. I doubt that repeating the arguments of my book would be persuasive a second time around, and therefore I defend my position on the value of loyalty by taking a new tack. There is much to be learned about the role of loyalty in our lives by exploring the commonalities of loyalty and tolerance. At first blush it seems that loyalty and tolerance are addressed to different issues. Loyalties define the bonds by which some people relate to us as insiders, relegating others to the status of outsider. Tolerance is a value that addresses the fair and decent treatment of outsiders. Thus, for example, loyalty to my people or my nation, my duty to stand by them in times of trouble, implies that other peoples and nations stand beyond the range of this duty. I treat these outsiders less favorably; I need not stand by them, fight for them, or care for them with the same solicitude. But still I owe them, as members of distinct cultures, a duty of respect. Paradoxically, we might tolerate the idiosyncracies of outsiders even more than those of people to whom we are loyal. This point has always been reflected in the principles of international comity in the field of marriage and divorce. We do not recognize polygamous marriages among Americans, and at various times in our history we have been viciously intolerant of the American Mormons who engaged in multiple marriages. But if a Sheik comes to the United States from Saudi Arabia with several wives in tow, we recognize the status of each woman as his legal wife. Jewish law applied in the Israeli courts does not recognize the marriage between a Gentile and a Jew, but if the couple goes to Cyprus, marries, and then returns to Israel, the marriage will of course be recognized. …

Messages, motives, and hate crimes

James Weinstein, Jeffrie Murphy, and Larry Alexander all effectively contribute to the conclusion that statutes enhancing the criminal penalties for crimes committed with the motivation of racial hatred do not for that reason present plausible First Amendment issues. If the basis for the First Amendment objection is seen to reside in some supposed impropriety in enhancing punishment based on motive because punishment for motives is tantamount to punishment for thoughts, all three appear to agree that that argument, the views of Susan Gellman and the Wisconsin Supreme Court notwithstanding, should not be taken seriously. Alexander, however, argues that there is a different type of First Amendment concern than the one that drives Gellman and the Wisconsin Supreme Court, and that this First Amendment concern, especially after R.A.V. v. City of St. Paul,(1) should indeed be taken seriously. It is that argument that I want to address here. It is not clear whether Alexander intends to endorse the result and the reasoning in R.A.V., or just to make an argument from positive law--that if R.A.V. is the law, then there is a legal problem. But let us give the Supreme Court the benefit of Alexander's argument (which is much better than the one in justice Scalia's majority opinion), and consider whether R.A.V., as rehabilitated by Alexander, and as reflecting a particular strand of First Amendment thinking, leads to the conclusion that penalty-enhancement is problematic under the First Amendment. So what is Alexander's argument? As I understand it, his argument, with its roots in United States v. O'Brien,(2) starts with the premise that it is presumptively impermissible under the First Amendment for a governmental entity to proscribe otherwise proscribable conduct because of a governmental concern (including both legislative motive(3) and statutory purpose, which are not the same thing) with the message sent out by (the communicative impact of) the proscribed conduct. Although the state may ban flag burning as part of a general proscription on public burning, it may not ban flag burning because of a concern about the effect of the message sent out by the act of burning on someone seeing the burning or hearing about it.(4) From this premise, Alexander argues that similar features are presented by a statute concerned not with assaults simpliciter (the analogue of a statute prohibiting all public burning), a statute which would encompass, incidentally, racially motivated assaults, but with assaults committed because of a motive of racial hatred. To focus on race-based assaults rather than assaults, he argues, is relevantly similar to focusing on flag-burning rather than burning, and thus the O'Brien argument,(5) culminating in R.A.V., presents more of a problem for the penalty-enhancement statutes than may at first sight appear. Even if we take O'Brien and the principle it has spawned as a given, however, I believe that Alexander is mistaken, and I believe his mistake stems from failing to recognize that the concern with communicative impact is only empirically and contingently related to the greater includes the lesser line of argument, and that the invalidity of that argument is an issue only when there is also a governmental concern with communicative impact. In order to isolate the issue, let us return to flag-burning. Because flag-burning could under existing doctrine be prohibited by a more encompassing statute having different motives (such as preventing pollution or the spread of fires), some might think that any less encompassing statute must necessarily be permissible. This is the greater includes the lesser argument, and Alexander and I agree that it is unsound, largely because neither the doctrine nor sound constitutional principles support it. After all, no one would contend that the power to exclude all seventeen-year-olds from the franchise would allow the state to extend the franchise to male but not female seventeen-year-olds. …

State Activism and State Censorship

Recent political debates prompted by the Supreme Court's flag burning decisions have once more demonstrated the depth of the nation's commitment to freedom of speech.1 Although the Court's determination to treat flag burning as an act of political expression, and thus to protect it from state interference, provoked a strong, hostile response from both the President and members of Congress, leading some to call for a constitutional amendment, the campaign to reverse the Court on this issue quickly faded. There was a sense in the body politic that the First Amendment is not simply a technical legal rule, to be amended whenever it produces inconvenient results, but rather an organizing principle of society, central to our self-understanding as a nation and foundational to a vast network of highly cherished social practices and institutions. It can be amended only at the risk of changing the very nature of society. The principle of freedom that the First Amendment embodies is derived from the

Stare Decisis and Judicial Restraint

Stare Decisis and Judicial Restraint Lewis F. Powell, Jr. Editor’s Note: This essay was originally deliv­ eredas theLeslieH.ArpsLecture, to TheAsso­ ciation of the Bar of the City of New York, on October 17, 1989. It was published in the July 1990issueoftheNew YorkStateBarJournaland is reprinted withpermission. ThebeginningofOctoberTerm 1989 marks an appropriate occasion to address again the subject ofstare decisis. At the close ofthe 1988 Term, commentators who agreed on little else unanimously proclaimed a “shift in direction” on the Court. Theydescribed the 1988 Term as a watershed and predicted reexamination of numerous areas ofthe law “previously thought to be settled.” You will not be surprised to learn that I take these pronouncements, like many that have preceded them in past years, with a grain ofsalt. In the era of “sound bites” and instant opinion polls, it is dangerous to apply broad labels to a single Term of the Court. I emphasize at the outset thatinintellect and experience this is a strong Court. The pastTerm presented an arrayofunusu­ allydifficultcases. This inturnresultednot only in five to four decisionsbut in splintered rulings without majority opinions. Unhappily, some opinions—on both sides of issues—included language that in time the authors may regret. I was concerned about the tone of some dissents when I was nominated for the Court in 1971. But I was reassured when it became evident that what one Justice may say about another’s opinion rarely should be viewed as personal criticism. I considered each ofthe Justiceswith whom I was privileged to serve as a personal friend, as well as a lawyer whose qualifications to serve on the high Court I never questioned. Justice Kennedy also has high qualifications. A. Stare Decisis in the 1988 Term Any talk of change at the Supreme Court prompts consideration ofstare decisis. Several of the Court’s opinions in the past Term have contained explicit discussions of stare decisis, both in statutory and constitutional cases. Perhapsthemostsignificant ofthe statutory cases is Patterson v. McLean Credit Union,1 in which the Court reconsidered the decision in Runyon v. McCrary2 that applied42 U.S.C. sec. 1981 to private contracts. The majorityopinion didnot holdthatRunyon was correctlydecided. But the Courtunanimouslyagreedthat, regard­ less of its initial correctness, Runyon should be reaffirmed on stare decisis grounds.3 Justice Kennedy’sCourt opinion reviewed anumber of the Court’s past opinions and stated that ‘“the doctrine of stare decisis is of fundamental im­ portance to the rule of law.’”4 A constitutional case involving stare decisis was South Carolina v. Gathers.5 In Gathers the Court was urged to reconsider Booth v. Maryland,6 an opinion I wrotefortheCourtinmylastTerm. Booth held that the EighthAmendment limits comment in capital sentencing proceedings on attributes of a murder victim and his family that were unre­ lated to the commission of a crime. Justice White, who had dissentedin theBooth case, de­ clined to overrule it. He joined Justice Bren­ nan’s opinionforthe Court inGathers. Thefour dissenters in Gathers explicitly called for overrulingBooth. Justice Scalia discussedstare decisis at length. While he acknowledged “some reservation concerning decisions that have become so embedded iribhr system of govern­ ment that return is no longer possible,” he argued that a Justice must be free to vote to overrule decisions that he or she feels are not 14 JOURNAL 1991 supportedbytheConstitutionitself, asopposed to prior precedents.7 Of course, a new Justice is less bound by precedent in construing a provision of the Constitution than a Justice who was sitting when a precedent was decided. The Court’s decision in Websterv. ReproductiveHealth Serv­ ices,8perhaps more controversial than the “flag burning” case,9 prorides an illustration. Justice Scalia and Justice Kennedy declined to follow Roe v. Wadew in that case. Justice Scalia would have overruled Roe explicitly. Justice Kennedy joined the Chief Justice and Justice White in limiting Roe. The end result was a badly fractured Court withfiveseparate opinions. AsIjoinedRoc and wrotethe Court opinion inAkron CenterforRe­ productiveHealth, Inc.,11 there is no secret as to how I would have voted in Webster. I do not say this as a criticism of the Court. In its long history, the presence on the Court of even a single new member often brings change. B. Current...

Flag Burning and the Constitution

Previous articleNext article No AccessFlag Burning and the ConstitutionMurray DryMurray Dry Search for more articles by this author PDFPDF PLUS Add to favoritesDownload CitationTrack CitationsPermissionsReprints Share onFacebookTwitterLinkedInRedditEmail SectionsMoreDetailsFiguresReferencesCited by The Supreme Court Review Volume 19901990 Article DOIhttps://doi.org/10.1086/scr.1990.3109656 Views: 15Total views on this site Citations: 2Citations are reported from Crossref Copyright 1991 The University of ChicagoPDF download Crossref reports the following articles citing this article:Frances Guerin The Politics of Jasper Johns’s Gray American Flags, (May 2021): 621–636.https://doi.org/10.1007/978-3-030-32865-8_29Katharine Gelber Political Culture, Flag Use and Freedom of Speech, Political Studies 60, no.11 (Mar 2012): 163–179.https://doi.org/10.1111/j.1467-9248.2011.00893.x

Self-Interest, Ideology, and Logrolling in Congressional Voting

LAWS may be passed because of self-interest or because of ideology. All national laws are ultimately passed by Congress; therefore, an analysis of the factors which determine the way in which congressmen vote can be used to determine the extent to which each of these factors is involved in passage of legislation. Because of the development of statistical tools such as logit analysis, which enable the analyst to handle situations in which the dependent variable is dichotomous, determinants of voting have recently been examined using roll-call voting data. The basic technique in this work has been to define the vote by a congressman on a bill as the dichotomous dependent variable and to use economic factors associated with the district as independent variables. But if this research is to proceed, it is necessary to separate out the factors-self-interest, logrolling, and ideology-which actually determine voting. This separation is the purpose of this paper. Kau and Rubin' and Silberman and Durden2 have analyzed voting on minimum wages; Danielsen and Rubin3 have examined voting on energy issues; Davis and Jackson4 have examined voting on income redistribution; and Kau and Rubins have examined the effect of public-interest lobbies such as Common Cause on the legislative process. Thus, statistical analysis of roll-call voting has been, and is likely to continue to be, a useful tool. This work in economics has differed somewhat from related work by political

Constitutional Change in an Interest-Group Perspective

Constitutional Change in an Interest-Group Perspective