The writers over at the Two Percent Company delivered condemnation to Senators who voted for the Flag Burning Amendment last week. They complained that, “when people that we expect to be semi-intelligent and semi-sane (at least compared to most of today's Republicans) vote for something this obviously wrong, it . . . disappoints us.”
I am going to go out on a limb and identify myself as somebody who is at least semi-intelligent and semi-sane. I also appreciate the fact that a Constitutional Amendment to burn the flag violates a basic principle of liberty. My view can be found in other posts that I have written on this issue.
Yet, if I had been a Senator, I have found myself voting for this Amendment.
A Senator or a Representative is an agent of the people from the district that he represents. Like all agents, they are duty-bound to execute the wishes of those who hire him unless their demands are so morally objectionable that they are unconscionable. The point at which a legislator can no longer represent the people is the point that he should resign. Worse, if a person is willing to admit that he cannot in good conscience participate in the civil institutions, at that point he must also declare that they only course left open is civil (and, perhaps, uncivil) disobedience.
Now, I would have likely done something that seems unheard of in political circles, and probably explains part of the reason why I would not last long in politics.
I would have gone to the people that I represent and said, “I am going to vote for this because you asked me to do so, and I am here to express your will. However, I hold that you are wrong. I hold that anybody who prohibits flag burning does not grasp the concept of free speech in specific, or freedom in general. Free speech means permitting people to express ideas that you find objectionable.
“Ultimately, there is no difference between insisting that flag burners go to jail (or worse) and insisting that people who draw pictures of Mohammad go to jail (or worse). Both groups assert the same arguments in defense of their cause – that desecrating a cultural icon is grounds for punishment. It would be one thing to admit this and to either permit both types of actions or punish both. It is quite another to be the champions of hypocrisy who say, ‘It is wrong for you to call for the punishment of those who desecrate your cultural icons; and, at the same time, those who desecrate my cultural icons should surely be punished.
“Those who insist on voting for this law prove themselves no better than the rioting Muslims they condemned only a few short months ago.”
Yet, after saying all of this, I would likely vote for the measure, if I determined that the people that I represented wanted me to do so.
The Agent's Duties
If you were a movie star, and I was your agent, it would be entirely outside of my real of responsibility to dictate which movies you would do or not do. I would reserve the right to offer your advice, but the final decision is yours, not mine.
This includes your decision to do movies that deliver messages that I do not agree with. If you want to do a movie that supports capital punishment, while I condemn capital punishment, it would be wrong for me to reject the script and say that you will not do the movie. If I am truly opposed to capital punishment to the degree that I could not, in good conscience, support your efforts to work on this movie, I would be obligated to resign my position before I would have the right to vote “no” on the capital punishment script.
So, when it comes to the flag burning amendment, I would act as an agent for the people that I represent. I would go to them and explain, as I have done above, why they should have me vote “yes” on this proposal. However, if I am unable to convince them, and they should continue to insist that I say “yes,” I would be obligated to either say “Yes,” or to resign and allow them to find somebody else who can serve as their agent.
Another point of moral contention that I have is that I think that a legislator should represent his entire district, not just his party. That is, he should not go back and say, “What do the Democrats in my district want?” or “What do the Republicans want?” but should ask, “What do the people want?” If the people back home are strongly in favor of such an amendment, though my party tends to be against it, I would view it as my duty to represent the people with my vote, not my party.
A Flag Burning Amendment might well be favored by Republicans and not favored by Democrats. My vote will be determined by whether it is favored by the people without regard to whether they are Republican or Democrat.
Another consideration that I would raise with my critics would go like this.
“You might want to take care who you are calling an idiot; you might discover that you are standing in front of a mirror. The way this district is set up, only a person willing to vote in favor of a flag burning amendment is capable of holding this particular seat. So, you have a question to ask. That question is not whether to have somebody in this seat who will vote against such an amendment. The question is which person who would vote for such an amendment would you want in this seat?”
I do consider the flag burning amendment to be a violation of principle, but not so much of a violation that I think it would be worth resigning over. There has been very little flag burning in the history of this country, and those who would burn the flag would still have other ways available to express dissatisfaction over their government. A lot of freedom and a lot of ability to express dissatisfaction remain.
I would then have to weigh this one infraction of a principle against the huge infractions that I may expect from a replacement legislator whose moral qualities I may suspect will be worse than my own.
The Nazi Guard Defense
Now, this does come uncomfortably close to the Nazi Guard defense. The Nazi Guard defense is the claim made by the Nazi concentration camp guard who says, “I was not as abusive of the inmates as my likely replacement would have been. I stayed at my post and did my job to save the inmates from the brutality that they would have experienced at the hands of my likely replacement.”
At some point it is reasonable to argue, “Those excuses carry no weight. You participated in a war crime and you should be prosecuted for it.”
The person responding to my vote for a flag burning amendment could make the similar claim that, “You participated in an infraction of the right to free speech and you should be condemned for it.”
Answering the Charge
Yet, I would argue that my vote would differ from the actions of the Nazi Guard in two areas that make condemnation inappropriate.
First, I would have met my obligation to make it known that I was acting as I thought I had a duty to act, but was doing so under protest. My actions would have been comparable to the Nazi Guard who, nonetheless, was vocal in his opposition to concentration camps and the maltreatment of those involved, who fought and argued against the camps to whatever degree that he was able.
Second, and much more important, the transgression here is much smaller than the genocide. Telling a person that he may not burn a flag is an insignificantly small infraction compared to telling him that he may not continue to live, or that he would have to endure conditions similar to torture.
Should a police officer resign his position unless he is in 100% agreement with the moral quality of every law that he promises to enforce? The answer is “no.” This rule would require that we have no police officers, because every police officer can find at least one law that he will not only disagree with, but find morally objectionable.
The decision to become a police officer does not mean that an individual must give up his moral conscience, but he must agree to do things that he may think are wrong. That is, unless the wrongs are so great that he cannot in good conscience continue his work. Executing Jews, we may argue, crosses the line. Arresting people who burn the flag, I believe, is a law we can expect law enforcement officers to enforce even if they (correctly) find it morally objectionable.
The principles that govern when a law enforcement officer should enforce laws he disagrees with are the same as the principles that govern when a legislator should represent the views of the people in his district. If the people back home want me to vote in favor of The Final Solution, I would refuse and resign – as I would expect the police officer or the soldier to refuse and resign. If the people back home want me to vote in favor of a flag burning amendment, I would do so, under protest, in the same way that I would expect the police officer to enforce the law, even if he does so under protest.
The One Vote Margin
Another fact to keep in mind is that one is foolish to think that the Senators went to the floor without knowing what the final vote would be. As an imaginary Senator, I would have likely been involved in a lot of backstage discussion about the vote. I would have had some insight as to how the votes were going. If the vote seemed close, such that my one vote might have affected the outcome, that would have affected my vote. In other words, I can easily imagine this being a situation where, if one Senator changes a vote from “no” to “yes”, that another Senator changes his vote from “yes” to “no” to maintain the balance.
I would suspect that the Democratic Party got together in a smoke filled room somewhere and said, “We can afford to have ten of our Senators vote for this Amendment. For the sake of preserving what little power we have, let us allow Senators A, B, C, D, E, F, G, H, I, and J vote ‘yes’. This will help them back home. The rest of us will vote ‘No.’ The measure will still be defeated.”
It is, I think, rash to assume that Senators are not smart enough to work out these types of strategies. The simple “one vote defeat” might not mean what the authors at Two Percent Company thinks it means.
The Final Solution
Ultimately, as an imaginary Senator who voted for the flag burning amendment in spite of my personal protests against it, I would like to respond to the Two Percent Company.
“I’m not the person you need to be talking to – or about. You should be focusing your attention on the people that I represent. Tell them to give me different orders and I will do so. If I follow your advice, there will be a Republican in this seat on the next election. Now, tell me, if you were me, would you really sacrifice this seat to a Republican for the sake of voting against an Amendment you already knew was going to be defeated anyway?"