The “flag burning” controversy has been a hotly debated issue of election-year political opportunism since the Supreme Court’s 1989 decision, in Texas vs. Johnson, that burning the American flag is constitutionally protected free speech.

On June 27, 2006, a proposed constitutional amendment banning the desecration of the flag was narrowly defeated in the Senate, 66-34, one vote shy of the two-thirds, or 67 votes, required to send it to the states for ratification.

The last time the full Senate voted on it, in 2000, the measure came up four votes short. The amendment cleared the House, 286-130, last year.

The Flag Protection Amendment, S.J. Res. 12, which was sponsored by Senator Orrin Hatch (R-Utah), read: “The Congress shall have power to prohibit the physical desecration of the flag of the United States.”

The Flag Protection Amendment, had it passed, would not have directly prohibited the desecration of the flag. It would have required that Congress enact legislation defining the terms “flag” and “desecration” while also empowering that body with the option of imposing penalties upon the violators of any subsequent policies made against flag desecration.

The Confounding Circumlocution of a Constitutional Non-Conundrum

Flag burning is a phony paradox issue that stirs and exploits the passions of patriots while inspiring jingoistic hypocrisy that is often rationalized in emotional appeals to American sentiment and vanity.

Senator Dianne Feinstein (D-California), who calls the flag “a vibrant symbol of our democracy, our shared values, our commitment to justice, and our eternal memory of those who have sacrificed to defend these principles,” in a June 16, 2006 USA Today editorial, writes:

Some opponents of the Flag Protection Amendment argue that we must choose between trampling on the flag and trampling on the First Amendment. I strongly disagree.

There is no idea or thought expressed by the burning of the American flag that cannot be expressed equally well in another manner. This Amendment would leave both the flag and free speech safe.

Senator Feinstein’s point that ideas can be expressed just as well in other ways that don’t involve burning the flag seems reasonable when taken at its face value. (After all, flag burning is not a terribly effective way to win friends and influence people because it tends to close minds and harden hearts against whatever idea or cause is being demonstrated in that manner.)

However, a slight scratching of its surface reveals that carefully constructed rhetoric as a thin facade acting as a pretense for the limitation of the expression of political ideas that are often just as unpopular as the act of burning the flag.

In democracy, all ideas are equally worthy of expression, regardless of their popularity, which is one of the essential values we share as we work toward fulfilling our commitment to justice.

Principles mean nothing when they are rationalized away the moment they sting our sensibilities (and perhaps our pride, too) and become politically, or otherwise, uncomfortable or inconvenient to keep.

Those who made sacrifices for our freedom did so to defend our actual principles, not the decorative symbols we use to represent them. A flag is nothing but a piece of cloth. No matter how many are burned, for whatever reasons, our principles, and our commitment to them, will remain.

The choice between trampling on the flag or the First Amendment should not be much of a dilemma in light of the fact that the First Amendment protects the right to trample upon the flag and that nothing less than a constitutional amendment is required to restrict that right.

We cannot have it both ways. By making the flag “safe,” this “Flag Protection Amendment” — as well as the precedents it would set — would, by default, endanger our First Amendment right to the free expression of ideas.

The people of a free country have the right to do and say all sorts of awful things that might be considered offensive in polite society, as long as they do not violate anybody else’s rights in doing so.

Like it or not, this is the way that it is and has to be because a “right” to limit unpopular speech, or the free expression thereof, that is an affront to the sensibilities of civilized society, but is not also a violation of the rights of the people, does not and cannot exist.

While I find Christian dominionism to be as dreadful a notion as “white power,” (both ideologies promote the idea that one group of people is somehow superior and entitled to hold a higher status and greater authority than the people whom it perceives as their inferiors) I cannot help but admire religious conservatives’ dedication to their causes and their ability to motivate themselves into action.

The religious right is one of the most powerful of America’s many and varied political movements and voting blocs because, while they make up just a little less than 10% of the population, nearly all of them vote.

What other group can get the executive and legislative branches of our government to sit up and beg, jump through hoops and wag their tails in anticipation of a reward by simply threatening to stay home on Election Day 2006?

This week, our Senate wasted its time and energy debating the Federal Marriage Amendment, which would have prohibited states from recognizing same-sex marriages, knowing that it and had no chance whatsoever of passing.

President George W. Bush and our Senators performed a dog act just to placate religious conservatives who felt that their special interest in “protecting” the institution of marriage from gay and lesbian people who wish to enter into it had been ignored in favor of issues they deem less important such as; the war in Iraq, the immigration controversy, the unstable price of gasoline and spiraling federal spending.

A Predictable Ending

As anticipated by every pundit and politician possessed of a clue (including the amendment’s supporters and sponsors), the FMA was soundly rejected by the Senate, who voted 49-48, on Wednesday, June 7, to limit debate and bring an up-or-down vote, which was 11 fewer than the 60 required, effectively killing the measure in the Senate for this year. The House of Representatives is expected to consider its own version of the FMA later this summer.

With the gain of four Republican seats since the FMA last came up for a vote, in 2004, proponents of the amendment had anticipated at least a 51-vote majority in the 100-member Senate. The 49 votes to keep the amendment alive were one more than the measure had previously received.

The proposed constitutional amendment needs two-thirds support in both the Senate and the House and ratification by at least 38 state legislatures before it can become law. Wednesday’s final tally was 18 votes short of the 67 required.

Two Republicans, Arlen Specter of Pennsylvania and Judd Gregg of New Hampshire, changed their votes from yes, in 2004, to no. A total of seven Republicans voted to kill the amendment; Lincoln Chafee of Rhode Island, Susan Collins of Maine, John McCain of Arizona, Olympia Snowe of Maine and John Sununu of New Hampshire. Chuck Hagel (R-Nebraska), who was traveling with President Bush on Wednesday, did not vote.

Senator Gregg said that in 2004, he believed a Massachusetts Supreme Court decision that recognized homosexuals’ right to marriage in that state would undermine the authority of other states to prohibit such recognition.

“Fortunately, such legal pandemonium has not ensued,” Mr. Gregg said. “The past two years have shown that federalism, not more federal laws, is a viable and preferable approach.”

Senator Ben Nelson of Nebraska was the only Democrat who supported the amendment. Senator Robert Byrd (D-West Virginia) voted “yes” on the motion to move forward with an up-or-down vote, but said he opposed the measure itself. Two Democrats, Christopher Dodd of Connecticut and John Rockefeller of West Virginia, did not vote.

Senator James Jeffords, the independent from Vermont, also opposed cloture.

The Fallout

In a statement, President Bush said, “I thank the senators who supported this amendment, but I am disappointed the Senate did not achieve the necessary number of votes to move the amendment process forward,” remarking that the vote was, “the start of a new chapter in this important national debate.”

Mr. Bush also reiterated his position that, “Marriage is the most fundamental institution of our society, and it should not be redefined by activist judges,” an obvious bow to the religious right’s special interest in demonizing the one branch of government that cannot be trained to jump through political hoops in exchange for votes.

Senate Majority Leader Bill Frist, a likely 2008 presidential contender, offered his own version of that same song and dance, “For thousands of years, marriage — the union between a man and a woman — has been recognized as an essential cornerstone of society,” he said. “We must continue fighting to ensure the constitution is amended by the will of the people rather than by judicial activism.”

The amendment’s supporters angrily denounced the Senate for not putting the amendment to an up-or-down vote.

Robert Knight, director of Concerned Women of America’s Culture and Family Institute, said he was insulted by comments from some senators that gay marriage was not a pressing national issue.

“There’s nothing more important than protecting marriage and families, because without them the United States faces a bleak future in which government is daddy and mommy and the state keeps growing to pick up the pieces of the shattered social order,” Mr. Knight said in a statement.

An advertisement by the Family Research Council, a socially conservative advocacy group, targeted Senators John McCain and Hillary Clinton (D-New York), likely 2008 presidential candidates, declaring that “[They] are ignoring America on gay marriage.”

Southern Baptist Ethics & Religious Liberty Commission president, Dr. Richard Land, said, “Defenders of marriage owe a debt of gratitude to Majority Leader Bill Frist and the other senators who insisted over the objections of many of their colleagues on both sides of the aisle that this issue come to the floor for a vote. They should also draw encouragement that we did get one more vote than in 2004.”

Dr. Land also remarked that, “They should be disgusted by the pathetic failure of the Senate to do far better on this issue than it did.”

Matt Daniels, president of The Alliance for Marriage, which drafted the FMA, pledged to continue its effort. “Today’s vote was an important step in the democratic process to protect the future of marriage for our children and grandchildren.” Mr. Daniels said, “The future of marriage in America is a race between the courts and [the amendment].”

Tony Perkins, president of the Family Research Council, called the Senate “grossly out of step with the American people” but added that “values voters” would work to elect candidates who support the amendment.

While a majority of Americans still defines marriage as an exclusively heterosexual institution, an ABC News poll released this week revealed that an equal majority opposes amending the Constitution for that purpose.

In a congressional election-year pitch to religious conservatives whose interests have been neglected in favor of far more pressing matters such as the war in Iraq, immigration, and the price of gasoline, President George W. Bush, in his weekly radio address, urged the Senate to pass the Federal Marriage Amendment, asserting that it is needed to prevent what he refers to as “activist judges” from overturning state legislation against same-sex marriage.

The amendment would prohibit states from recognizing same-sex marriages while leaving state legislatures free to make their own decisions about what — if any — legal accommodations, other than marriage, they will make for same-sex couples.

In order to become law, the proposed amendment needs two-thirds support in both the Senate and the House, after which it must be ratified by a minimum of 38 state legislatures.

In spite of the widespread belief that the amendment has the proverbial snowball’s chance of passing — even the bill’s sponsor, Senator Wayne Allard (R-Colorado), has acknowledged this political verisimilitude — the Senate nonetheless plans to debate the proposed constitutional ban on same-sex marriage this week.

Democrats have said that the upcoming debate on this issue is a waste of Senate floor time, and is nothing more than a pre-midterm election appeal to social conservatives whose votes were essential to Mr. Bush’s re-election.

The Unappreciated Religious Right

Apparently Mr. Bush and several Congressional Republicans are beginning to take heed of recent threats from the religious right, hard-working political activists who, according to Gary Bauer of the Campaign for Working Families, “[are] a major reason why the president is sitting in the Oval Office today.”

Mr. Bauer had issued an earlier warning that, if Mr. Bush doesn’t start crusading against same-sex marriage, “this is just going to be one more thing that keeps people at home on Election Day.”

Tony Perkins of the Family Research Council has also cautioned Mr. Bush, telling Fox News that the president faces “the very real potential of deflating what’s left of the GOP base. They deflated the fiscal conservatives, because of [the increases in] spending, and now they risk deflating the social conservatives by failing to act on our interests.”

Enter The Moderates

While Mr. Bush and several socially conservative Republican Senators have pushed for the marriage amendment, a number of other Republican voices have dissented.

Senators John McCain (R-Arizona) and John Sununu (R-New Hampshire), oppose the amendment, saying that marriage is a matter that is best left to the states. Several other Republican Senators are also against the measure. Meanwhile, Senator Ben Nelson of Nebraska is the only Democrat who has said that he will vote for the amendment.

First Lady Laura Bush, in an interview on Fox News, advised against politicizing the issue, “I don’t think it should be used as a campaign tool, obviously,” she said. “It requires a lot of sensitivity to just talk about the issue - a lot of sensitivity.”

Mary Cheney, daughter of Vice President Dick Cheney, said, on CNN, that “writing discrimination into the Constitution of the United States is fundamentally wrong.”

The vice president spelled out his position on the subject in August of 2004, “Lynne and I have a gay daughter, so it’s an issue that our family is very familiar with. … With respect to the question of relationships, my general view is that freedom means freedom for everyone. People ought to be able to free — ought to be free to enter into any kind of relationship they want to.”

However, likely being mindful that the November 2004 presidential election had not yet taken place, Mr. Cheney added, “At this point … my own preference is as I’ve stated. But the president makes basic policy for the administration. And he’s made it. ”

Incumbents Beware

Not only are the religious conservatives feeling neglected, moderate Republicans are also feeling somewhat alienated. A number of Republicans from both factions are troubled and confused by the Party’s mixed messages on the subject of same-sex marriage.

These fractures within the GOP have caused a disconcerting paradox for several vulnerable Republican incumbents whose political balancing acts will be judged at the polls this November. If they push hard on issues like the Federal Marriage Amendment, religious conservatives will likely respond favorably, but moderates who favor small government and states’ rights will be turned off.

Republican Party strategist Craig Shirley suggests that, “There is a fear, among some in the party, that the Republicans are being identified too much as a theological party.”

According to GOP pollster Tony Fabrizio, half of today’s Republicans are “theocrats” who believe government should “promote traditional values by protecting traditional marriage.” And the other half wants less government intrusion into the personal lives of the people.

Mr. Fabrizio says, “We can’t afford to alienate moderate voters any more than they are already alienated… . Issues have a shelf life. Gay marriage passed everywhere [on state ballots] in 2004, but today, a lot of people look at that issue and think, ‘It is so over and done.’ Our party base is already fracturing, and if we emphasize gay marriage now, it would create new divisions.”

What The Polls Say

Recent polls show that there is far less support for amending the Constitution to ban same-sex marriage than there was in 2004. According to a March 22, 2006 report by Pew Research Center, 51% currently oppose the civil recognition of same-sex marriages, which is a dramatic change from the 63% who were against it in 2004. Two years ago, 59% of Republicans strongly opposed same-sex marriage, while only 41% take that position now.

Likewise, the percentage who are in favor of same-sex marriage has increased greatly from 29% in 2004 to 39% today. In June of 1996 just 27% favored legalizing same-sex marriage. Support grew to 35% in March of 2001 and increased to 38% in the summer of 2003.

That widening support fell away in February 2004 when the Massachusetts Supreme Court recognized homosexuals’ right to marriage. The subsequent debates over that historic decision sparked a temporary resurgence in opposition, which did not last long after the 2004 election.

A national debate on same-sex marriage could potentially cause a backlash against socially conservative Republicans, who may be perceived as giving priority to an issue moderates find unimportant when contrasted with serious matters like the war in Iraq, immigration, and the price of gasoline. Same-sex marriage didn’t even make the top 20 in a recent Fox News poll of issues about which Americans are most concerned.

Furthermore, a study by a conservative-leaning research center, the American Enterprise Institute, observed that public opinion has become increasingly more accepting of homosexuality.

Pew Research has also found this to be the case. In addition to shifting public sentiment toward same-sex marriage, they report that 46% are in favor of allowing gay and lesbian people to adopt children, up from 38% in 1999. And the American people support, by a wide margin of 60% to 32%, a policy that allows homosexuals to serve openly in the military.

The war on drugs was lost the moment it was declared. As we should have learned from the results of that “Noble Experiment” we conducted between 1920 and 1933, outlawing things that the people, for the most part, usually enjoy without violating the rights of others does not result in orderly and unquestioning compliance, but rather in gangsterism and the corruption and violence of the black markets that naturally form to supply the demand for those outlawed things. Nonetheless, prohibitionists continue to insist that interdiction can eventually work, “if only…”

In a May 29, 2006 commentary for the St. Louis Post Dispatch, Daniel K. Duncan and Edward F. Tasch of the St. Louis area chapter of the National Council on Alcoholism and Drug Abuse made yet another weak and logically flawed case for the continuation of a ridiculously ineffective policy of drug interdiction that creates more problems than it solves while masquerading as a solution to itself.

The title of the editorial in question is, “Legalization is a Terrible Idea,” which, ironically enough, is a concept with which I heartily agree.

“Legalizing” currently illegal drugs will only serve to unclog our criminal justice system and eventually reduce our prison populations, but it will do nothing about the vast underground economy that supplies the neverending demand for certain uncontrolled substances.

If we are to ever have any hope of eliminating the black markets and the gangsterism, corruption and violence that go with them, we must face the reality of our human nature, abandon the pipe dream of a “Drug Free America,” and take control of the market, bringing it out of the shadows and into the light so that we can know who is selling what to whom and for how much. For this purpose, “legalizing” illegal drugs is not enough. We must go several steps farther and regulate unregulated drugs.

Strangely enough, Mr. Duncan and Mr. Tasch opened their editorial with a quotation from H.L. Mencken, “For every problem there is one solution: simple, neat and wrong,” an axiom that is congruent with regard to prohibitionist policies as well as the notion of “legalization.”

Untenable

Defending an untenable position is impossible if one plays by the strict rules of logic. Prohibitionists, knowing that such contests almost invariably serve to reveal the numerous weaknesses of their position, do not often engage in actual debates with tangible opponents, but rather with themselves, acting in both roles so that they may avoid the embarrassment of being faced with the inevitable exposure of the untenability of the boondoggle known as the war on drugs.

When prohibitionists implement this strategy of debating with themselves, they make numerous tactical errors, such as opening with a concession that the very policy they are attempting to defend is a failure:

So, the war on drugs is not working. Agreed. But the question to ask is, “Why?” Is it not working because using drugs is really a fine idea, and we’ve been unjust and unreasonable in not letting everyone do whatever they want to do? Or is it not working because the way we’ve gone about waging this war set us up for failure?

Without a doubt, we think it’s the latter.

Indeed, having set up a nifty little false dichotomy, Mr. Duncan and Mr. Tasch appear to have hit the nail on the head with that one, thereby sucking us into the illusion that the failure of the war on drugs is a matter of methodology, not the policy itself. I am not fooled — and neither is anybody else who does not take comfort in the 80-plus year-old status quo.

Ostensibly predicting that such proclamations carry no weight without subsequent proposals of ideas for more effective implementations, Mr. Duncan and Mr. Tasch go on to hypothesize that the trouble with the institution of drug prohibition is that it focuses upon supply instead of demand:

The premise underlying these approaches is the idea that supply drives demand: The more drugs there are, the more people use them. It is a fatally flawed assumption. The truth is just the opposite: Demand drives supply, and until we accept the significance of this fundamental failure of understanding, the strategies we come up with will continue to fail. In other words, the failure of the war on drugs is no justification for legalizing these harmful substances.

The quotation above belies the fact that we already have numerous laws and policies that are intended to address demand, such as drug courts and other “harm reduction” measures.

And nevermind the oversimplification of the complex economic theory known as supply and demand, for it is quite obviously a clumsy propagandistic segue into an emotional appeal to ignorance-supported fears of outlaw drugs — as well as the old implied threat of anarchy behind the notion of “legalization,” which is actually a prohibitionist term for a sensible drug policy that involves regulation rather than interdiction (it is for this very reason that drug policy reform activists and advocates should avoid using the “L” word and the “D” word).

Cue The Straw Men!

What would a defense of the drug war be without those thatched bamboozlers? Mr. Duncan and Mr. Tasch apparently understand their usefulness:

People still steal, so let’s legalize stealing. People still speed, so let’s remove all the speed limits. People still drink and drive, so let’s legalize drinking and driving. Date-rape continues; let’s legalize date-rape. The point? Shifting from one flawed premise to another solves nothing.

The classic sophism contained within the above paragraph is almost unworthy of a response, but it must nonetheless be addressed for the sake of folks who might be unfamiliar with the concept of “red herrings.”

Mr. Duncan and Mr. Tasch have submitted a proposition that is not logically relevant to its “conclusion.” The vast majority of outlaw drug consumers do not actually violate the rights of others while they are enjoying their favored inebriants. However, thieves, speeders, drunk drivers and date rapists most decidedly do violate the rights of their victims when they steal, speed, drive while intoxicated and rape their dates.

In what could be construed as an homage to the 18th Amendment, Mr. Duncan and Mr. Tasch address the question of why alcohol is legal when it is our nation’s most abused drug:

Incredibly, advocates of legalizing drugs often point to alcohol as an example of a successfully legalized drug. This is a terribly weak argument. Do they really not understand that — in terms of lives disrupted, ruined and ended before their time — the legal drug alcohol is by far a bigger problem than any other drug?

Don’t Mr. Duncan and Mr. Tasch understand why the 21st Amendment was ratified after only 13 years of Prohibition? Apparently not.

The Good Stuff

Aside form the fact that drug policy reformers are much better dressed nowadays than they were in the 1960s and 70s, the toughest obstacle facing today’s drug prohibitionists is, by far, our very own American history.

Juxtapositions of the modern drug war with Prohibition (1920-1933) are a drug warriors’ worst nightmare because they are the most effective and convincing arguments in the reformers’ arsenal. It is these historical comparisons that have rendered any and all possible defenses of the war on drugs baseless, ineffective and vulnerable.

Some say that by legalizing drugs, the gangs that subsist on the revenue from trafficking will cease to be a problem. Nonsense. Kids don’t join gangs to sell drugs; they join gangs to belong to something, to gain a sense of identity and to feel protected.

While it is indeed true that kids often join gangs for a sense of identity and belonging that they may not get in their homes, that sense of identity and belonging springs from the central purpose of the gang’s business interests, which do include the high risk undertaking of theft (cars, jewelry, electronics and prescription drugs), but are comprised mostly of the low risk enterprise of “dealing,” the manufacture, distribution and sale of unregulated drugs.

How about the argument that legalizing drugs would eliminate the black market in drugs and, thus, reduce the number of crimes committed to support the habits of addicts. Really? So once drugs were legalized, all the addicts suddenly would get good-paying jobs to earn the money they need to buy their drugs legally? Ridiculous.

Our policy of drug prohibition and interdiction provides the untaxed and unregulated black market with artificial inflation and price supports that sustain the high market value of certain unpatentable drugs, which would become very inexpensive under a policy of regulation and taxation.

However, while some addicts do commit crimes in order to support their habits, they are usually non-violent offenses such as, shoplifting, panhandling, and prostitution. Meanwhile, the violent crimes are most often committed by the dealers, not their customers.

The violence associated with the drug trade almost always springs from business disputes between drug dealers, their associates, and competitors because, in the realm of the anarchical underground economy, the manufacturers, distributors and sellers of unregulated drugs do not have access to courts of law and must therefore “settle” their business disputes with guns, knives and bombs instead of lawyers, mediators and judges.

Meet the New Solutions, Same as the Old Solutions

Mr. Duncan’s and Mr. Tasch’s proposed solutions involve three basic strategies: preventing young people from starting to use drugs, making sure that these prevention programs work by requiring “follow-up public education and awareness campaigns of extremely high quality and sophistication,” and a combination of a “degree of decriminalization” (the old “D” word rears its semantically ugly head) and “greater access to quality treatment programs.”

Rounding out that third “strategy,” of course, is the old prohibitionist standby: “and much more stringent enforcement of anti-trafficking laws.” This one’s been tried numerous times before only to be eschewed in favor of less draconian measures once the classic dynamic of “getting tough on drugs” is rediscovered: increases in drug law enforcement are always followed by increases in corruption and violent crime.

And let’s not forget that, in Saudi Arabia, the punishment for drug dealing is beheading — and, yet, they still have addicts.

Conclusion

Drug abuse is a public health problem that will never be fully solved because it is not a condition in and of itself, it is a side effect that has been attributed to a myriad of disorders, conditions, diseases, dysfunctions and syndromes, which are associated with self-destructive behaviors.

People don’t abuse drugs (legal, illegal, prescription or over-the-counter) simply because they exist and have addictive properties, but because the drugs mask their pain and make them feel better — until they wear off, at least.

If we are to address drug abuse and addiction as a public health problem rather than as an issue of law enforcement, then we must take our focus away from drugs themselves, regardless of their various legal statuses, for they are not truly relevant to the underlying causes of self-destructive behavior.

Mr. Duncan and Mr. Tasch believe that the public health problem of drug abuse can be solved “by honestly acknowledging what we’ve learned about what works and what doesn’t.” While I wholeheartedly agree with this sentiment, I do not understand why they have not applied this formula to that other “drug problem” that causes more troubles than it solves while pretending to be the one and only solution to itself.