2416 "I" Street, NW
Washington, DC 20037
June 14, 1990
The Honorable Robert Dole
United States Senator
Senate Office Building
Washington, D.C. 20015
Dear Senator Dole:
I was one of your early supporters before both the Iowa and New Hampshire Primaries and your campaign staff accepted my offer to organize the thousands of American residents on the Mexican side of the border and the Bay of Bahia California. I wrote to tell you how disappointed I was at the outcome of the Convention. I'm pleased to see that you and the President seem to be putting past feelings behind you and that you're supporting his program. Events in Eastern Europe, the USSR, and South Africa are almost unbelievable and offer hope for the next fifty years beyond anything I, or any professional diplomat I knew during my thirty year career in the Foreign Service, could have predicted or foreseen. And I spent several years working on NATO Committees analyzing events in the Satellites and in the State Department's Bureau of Intelligence preparing early morning briefings for the Secretary and Under Secretary on events in Eastern Europe and the USSR!
So while I'm as disturbed by the Court's latest flag burning decision as anyone, I hate to see our attention and efforts diverted into such side issues as flag burning -- especially when it looks like the White House and Congress are stampeding into an effort to bring about a Constitutional amendment to achieve this -- when we should be giving priority to guiding the New Europe (EC 1992, re-united Germany, what to do about NATO, and all that) into new and safe channels. Not to mention such overreaching domestic problems as the central government budget, balance of payments, Savings and Loan and emerging commercial bank problems, the challenge of Japan and what to do about American education. Government has only so much vitality to expend and we should take care to devote it to first magnitude problems.
I think this business of confusing Constitutionally protected free speech -- which was intended to protect freedom of political expression -- with unrestrained action offensive to the vast majority of the citizenry, holds great danger for the future as fringe political movements -- not to mention fringe artists, musicians, and movie makers -- will create another major problem for the country as various anti-societal individuals and groups search for ways to use the decision to open the door for extreme forms of social action, as well as pornography and violence in art.
Following the original flag burning decision and well before the recent case was argued before the Court I wrote Chief Justice Renquist and the Solicitor General to bring to their attention the precedent of an at least equally significant case -- involving freedom of religion. In Reynolds vs the United States the Court a hundred years ago upheld what many then considered a clearly ex-post facto infringement of a whole people's religious convictions regarding marriage, maintaining that Mr. Reynolds could indeed adopt and preach whatever belief system he felt God required, but when it came to putting his beliefs into practice in a way that offended the morality of the majority by taking multiple wives, the State could step in to sanction such practice. I told the Chief Justice and the Solicitor General that I hoped they would find the Reynolds case a precedent in distinguishing personal beliefs and freedom of expression from practice in the flag burning case: people should be free to attempt to persuade a majority of voters to their point of view. This is democracy. But when they put into action practices that are offensive to the majority and which they know infringe existing law before succeeding in persuading others to join them in modifying laws they don't like, there is precedent that such offensive actions be sanctioned by those sworn to uphold the law.
Unfortunately, the Court, by a narrow majority, gave greater scope to flag burners than it did a hundred years ago to the deeply held religious beliefs of my great grandparents, where the Court's decision sundered marriages of many years standing, separating wives and children from husbands and fathers at great emotional cost and financial hardship.
Be this as it may, I am now equally disturbed, as I have already said, that the President and a large number of legislators seem to be stampeding to amend the Constitution to override this Court decision. We have passed almost as many amendments during my lifetime as were passed during the first hundred years of the nation's existence (excluding the first ten which constitute the Bill of Rights and which were adopted virtually as part of the original writ). As a student of the Constitution and Professor of Political Science, I have come to call this "legislation by constitutional amendment". Beyond the dispersion of scarce top-level attention from more significant issues, which I've already mentioned, I've even more deeply seated reasons for hoping to persuade you as the President's arm in the Senate to attempt alternative solutions to the flag issue.
The Constitution of the United States is a model precisely because it is so short and restrained. Unlike the Organic laws of most nations, which go on for dozens of pages detailing all sorts of secondary issues, many of which must be rewritten from time to time to take into account changing cirumstances, the American Constitution can be read, understood, and remembered in its essentials by every citizen and schoolchild. It is magnificent in its generality, scope and stability. This is as it should be, and is perhaps the most important reason Lord Acton called it the most gloriously inspired document ever stricken off by the hand of man at one sitting. Once the basic form of republican government, the separation of powers and the checks and balances of the three branches of government, the relations between the states and federal government, the manner of electing and seating representatives is set forth, and the protection of citizen rights established, the remainder of our governance is left to legislation readily modifiable by subsequent Congresses taking into account changing social conditions and preferences. If we start amending the Constitution to prohibit flag burning, we'll soon be drawn into going on to ensure balanced budgets, line item veto power, and, eventually, trying to resolve the abortion issue (and, perhaps, pornography). In short order we'll have a document which will be indistinguishable from the constitutions of any number of other nations, extending to dozens of pages and being beyond the capacity of citizens to read and understand. And with constantly changing conditions, we'll also find ourselves continually inclined to modify and remodify our basic document -- as virtually all other governments with written constitutions do.
Many regret having limited the eligibility of our presidents to two terms and there is current talk of rescinding this amendment adopted only because of the exceptional wartime decision of President Franklyn Roosevelt. Most would agree this amendment was premature: we've only had one two term President since Dwight Eisenhower forty years ago ! We've already rescinded the social legislation attempted with Prohibition. Taking into account some actions reported to have occurred during Watergate and the shooting of President Reagan, some are even concerned about the amendment permitting the Cabinet to declare the President unfit to continue in office.
Remarkably, despite so much questionable tinkering, ours is the oldest substantially unchanged form of government on the face of the earth. And this, most would argue, is primarily because of the reverence of the American people for the Constitution.
Summing up: I am seriously concerned that by adopting "legislation by Constitutional amendment", every time a serious difference of opinion arises between the Court and the Legislature or the White House, respect for the Constitution will diminish, and one day in the not too distant future, we'll have a call for a Convention to rewrite the document. This is particularly disturbing as social anomy increases and traditional respect for the established institutions of government diminishes among our youth -- most of whom know little enough about history or civics, not to mention geography or political theory.
As a U.S. Foreign Service Officer serving abroad for thirty years, I've at times been overwhelmed by the simple mindedness of Americans traveling abroad who take for granted that all their Constitutional guarantees automatically follow them abroad like a protective halo, not recognizing that when they absent themselves from our shores, they voluntarily subject themselves to foreign laws and foreign customs. As a people, we just don't understand how fragile our protections, our privileges, and our favored lifestyle is, and how much these derive from our glorious Constitution. If we get too faddish in casually changing the foundation of our government to reflect what should, in the normal course of events, be handled by statute -- "legislating by constitutional amendment" -- we'll only accelerate the loss of reverence for our palladium. In many Latin American countries, it is almost unheard of for a constitution to endure for twenty years.
If I sound like a political Conservative, I assure you I am -- by study, disposition, and observation of the way unreflective "liberals" have loused up governments and economies from Sweden to Chile and from China to California. From study, reflection, and observation, I am convinced that it is reverence for established government and accepted practices and traditions which brings even the most liberal among us most of the political freedoms and social assurances we Americans take for granted. Just consider the governments of the world! Of the hundred and sixty some odd sovereign nations, one can count on two hands those which enjoy genuine freedom, justice, and prosperity!
A SUGGESTION:
If the Senate really wants to do something about flag burning, I suggest you work towards excluding such heavy social issues as abortion, pornography, and disruptive actions such as flag burning and gross public art, which go beyond free speech from the Court's jurisdiction (something Congress can do by simple legislation). If the Court should, however, strike down such restrictions on its jurisdiction (which, let it be remembered, it's never done so before, recognizing that the Constitution clearly places such authority in the hands of Congress -- recalling further that the jurisdiction of the Court has been modified several times during our two hundred year history), Congress could then up the ante, passing and inviting the states to ratify a carefully crafted all purpose amendment reiterating the power of Congress to so restrict the jurisdiction of the Court at will. Subsequent Congresses could then narrow or broaden the Court's jurisdiction to reflect the societal needs or political views of the era.
Such action would place responsibility for modifying the nation's approach to social justice, equal rights, access to education, welfare rights, abortion, balanced budgets, etc., etc. in the hands of elected officials responsible to the people, as in Great Britain, instead of in the hands of political judges appointed for life and unresponsive to the people's preferences expressed at the polls.
To be sure, some might be reluctant to put such powers in the hands of one branch of government: but this would not really be the case. All the normal checks and balances would continue in force and this could readily be explained to the people. Each House would preserve its normal power to reject such legislation based on member reading of their consitutencies, and the President would continue to be able to exercise his power to reject such narrowing or broadening of the Court's jurisdiction, as with all other legislation, should he consider Congress to be going beyond the will of the people. At least some of us would feel more confident placing these judgments jointly in the hands of the two elected branches rather than as at present seeing the Judicial Branch extending it's prerogative to enact law by unchecked, unilateral decree -- even to the extent of imposing taxes on local jurisdictions for purposes dictated by the Courts.
Indeed, such a limitation of its jurisdiction might actually improve the image of the Supreme Court and of government at large. The Court has been blamed directly or indirectly for much of the deterioration in public norms of behavior because of questionable criminal justice, abortion, school access, drug, and public welfare decisions. And Congress has been tarred by Court rejection of legislation clearly reflecting the preferences of the people -- Court, Congress, and White House alike being seen as unable or unwilling to solve the problems of drugs, muggings, and street crime. With the Court deprived of authority to decide high tension social issues, the public might then understood that it must turn for redress to those it had elected to represent its interests where normal checks and balances operate, rather than making the Supreme Court the whipping boy.
I have sent a rather briefer version of this letter to a number of other senators in the hopes of stimulating a deeper debate on the flag burning amendment, hoping that they, and you, will be moved by my argument against "legislation by amendment" and will press (a) for adoption of the alternative approach mentioned of seeking to limit the Court's jurisidiction so as to permit definitive legislation to protect the symbol of our national union. And, should the Court unreasonably refuse to acquiesce in having its jurisdiction so limited, (b) to resolve this and related social issues once and for all by working for a single "all purpose" amendment specifically authorizing the Congress to limit Court jurisdiction in any significant areas of social, criminal, fiscal, or moral discord regarding which the Legislative and Executive Branches are in agreement to eliminate the need once and for all of having to resolve each and every major social issue by amendment.
Sincerely,
David B. Timmins
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