Quote:
Originally Posted by dculkin
 I have not studied the matter, but I don't think that makes sense. Are you saying that legislators don't take the Constitution into account when drafting legislation? And was it just a coincidence that the drafters of the voluntary protocols for the treatment of flags happened to pick the language that conformed to the First Amendment? A more likely scenario, I would think, is that the legislature started off with language that respected the First Amendment and that the court cases didn't come along until someone tried to make the voluntary standards mandatory. |
Your comment makes no legal or historical sense.
At the time that the statute was enacted, the genreal consensus was that burning the flag, or otherwise desecrating the flag, was not "speech" protected by the 1st Amendment. So why would the legislator taken into consideration a principle that did not even exist.
As far as they were concerned, desecrating the flag was verbotem.
Why would legislators, working during pre Civil War times, pass a piece of legislation protecting the rights of blacks. Until the Emancipation Declaration passed, blacks had no rights.
It would pretty amazing if the legislators who enacted the flag act could have, and would have, anticipated that some 50 or 60 years down the line desecrating the flag would be protected by the 1st. Amend.
If you can show me some case law, on or around the time the statute was enacted, holding that the desecration of the flag is protected speech then your argument would make some sense. Otherwise it is just more nonsense.