
                         Roanoke Times
                 Copyright (c) 1995, Landmark Communications, Inc.

DATE: SUNDAY, June 17, 1990                   TAG: 9006180356
SECTION: EDITORIAL                    PAGE: C3   EDITION: METRO 
SOURCE: MATTHEW J. FRANCK
DATELINE:                                 LENGTH: Long

ISSUE ISN'T THE FLAG, BUT THE POWERS OF THE COURT

AGAIN, the U.S. Supreme Court has overturned a statute banning the burning of the American flag. Again, the politicians and the press rush to stake out opposing positions on what should be done next: leave things as the court (by the merest one-vote margin) has left them, or overturn the ruling in the only way most people think is possible, by enacting a 27th Amendment to the Constitution. The elements of each position are entirely predictable.

On the left, the governing assumption is that amending the Constitution would amount to trimming back the protections of the Bill of Rights for the first time in 199 years. This assumes what is essentially at issue: whether the five members of the court got it right when they asserted, against every precedent prior to last year's Johnson case (decided by the same 5-4 vote), as well as against common sense and the plain language and intent of the First Amendment, that free speech is infringed by a statute criminalizing a species of non-verbal conduct on moral grounds.

Four justices thought otherwise, and many Americans (myself included) think that reason and law were on their side. But the court's defenders, in opposing an amendment to correct this error, will have captured the high ground if they can successfully equate the opinion of five black-robed lawyers with the Constitution itself. All they need do is obfuscate the obvious difference, and stick to the position that when the court speaks, constitutional debate among citizens is at an end.

Hence the twin problems of the right. Equally predictably, the president and his allies in Congress have reacted viscerally to the court's decision by calling for a constitutional amendment - but if they concede their opponents' premise that this means curtailing the First Amendment (presumably becauase the flag is so important), rather than correcting a misreading of it, they deserve to lose.

Avoiding that pitfall, though, is the easy part. The second problem for proponents of an amendment is that even if they win, they lose. For they will be confusing the trivial for the grave, a symptom of the cause of our difficulties.

Few critics of the flag decisions, and none in public office, seem to have grasped that the real issue is whether the Constitution permits, let alone requires, that the nation be governed on matters of policy by the unelected, life-tenured judiciary, rather than by the people's elected representatives. The real issue, in short, is not over the flag or freedom of "expression" (try to find that word in the Constitution), but over power: Who rules America?

No 27th Amendment is necessary, certainly not one that clutters the text of the Constitution by empowering Congress and state legislatures to exercise an insignificant power to jail insignificant people - although (or more accurately, because) it is a power those assemblies quite clearly possess, regardless of what the court has said.

Worse still, as with other amendments proposed in the recent past to restore school prayer, overturn court-ordered busing, and revive anti-abortion laws, nothing would fail quite like success. Amend the Constitution on any one or even all of these issues, and you have only slightly altered the text the court has already become accustomed to abusing under the guise of interpretation.

The Constitution does not unambiguously prohibit laws permitting school prayer, or banning abortion or flag desecration, and certainly does not command busing for the racial integration of schools. And wherever the Constitution does not unambiguously prohibit or command, there is the legitimate realm of legislative discretion.

But we cannot solve our present difficulties by adding new words to the Constitution stating what was obvious to everyone before the court said otherwise. The court that used to issue legal opinions on the meaning of the Constitution now issues policy opinions on the shape of the America it thinks we should live in, as any reader of both sides in the flag rulings can find out for himself.

There can be no end to it if the route we take is debating amendments to overturn this decision, and that one, and the other. Yesterday's bad policies may be reversed, which is no small thing (as, for instance, any pro-lifer would surely argue); but tomorrow's will not be forestalled.

Fortunately the Constitution, as it stands today, affords ample opportunity for the debate we should be having - on the judicial-power Article III rather than the First Amendment. Congressional debate on the withdrawal of some of the federal courts' jurisdiction might be a fruitful beginning, and any legislation that emerges would require fewer votes than a constitutional amendment.

Even better would be an impeachment or three, where some real issues could be aired in the invigorating atmosphere of a Brennan, Marshall or Blackmun on trial for his job. The Framers understood the impeacehment power to be available for the redress of judicial usurpation of legislative authority.

But while the means are there, the will is lacking. Witness last year's Flag Protection Act, just overturned: the Congress was so uncertain that it possessed a power it obviously possesses, and so acquiescent in the face of judicial supremacy over constitutional interpretation, that it included a provision nervously permitting expedited Supreme Court review of its handiwork the moment someone challenged it.

We're a long way yet from a robust assertion of constitutional equality by our elected representatives.

by CNB