Law

onl- l^e explained in light of the ongoingrn”Tenth Amendment movement,” thernattempt (bv mostly Republicans) to re-rn i c the last number of the Bill of Rights.rnThis amendment, passed beeause of thernFounders’ fear that the federal governmentrnwould overwhelm, erush, andrnfinally dissolve the state governments,rnwas designed to preserve our system ofrnfederalism, or dual federal and staternsovereignty. The idea was that the federalrngovernment would deal with truly nationalrnconcerns, such as interstate andrnforeign trade, national defense, a nationalrncurrency, and the conduct of foreignrnrelations, and that virtually all other aspectsrnof American life and law would bernleft to the state governments. The idearnbehind the Tenth Amendment is thatrnthe goernment closest to the people—rni.e., state, not national, government—rncould best address most of Americans’rnproblems and ensure the preservation ofrnpopular soN’creignty itself, the very foundationrnof the Constitution.rnBut why is the Tenth Amendmentrnmovement suddenh- in force? How hasrnit managed, at long last, to sway whatrnma be a majority of the SupremernCourt? One explanation is that the federalrngo ernment has finally grown so big,rnthe deficit so large, and the corruption ofrnfederal officials so obvious that even naturalrndefenders of the federal governmentrnhave grown alarmed. Another reason isrnthe poj^ular perception that the federalrngovernment is now dedicated to advancingrnradical minority opinions, no matterrnhow offensie the’ may be to cherishedrnAmerican beliefs and traditions. Thernflag-burning controversy is a primernexample.rnIn Texas v. Johnson (1989), the UnitedrnStates Supreme Court, by a narrow fivcto-rnfour majority, overturned about 100rnyears of constitutional jurisprudence andrnheld that Texas’s statute, which forbaderndesecration of the United States flag,rnwas unconstitutional because it out:-rnlayed “speech” guaranteed by the FirstrnAmendment. Flag burning, said thernCourt’s majorit, was simply speech.rnThis was too much for Justice Rehnquist,rnwho, writing for the four dissenters, explainedrnthat flag burning wasn’t speechrnbut an outrageous act of arson, more like,rnin his words, “an inarticulate grunt” thanrnthe type of political speech the FirstrnAmendment was designed to protect.rnMoreover, Rehnquist noted, some of thernSupreme Court’s greatest champions ofrnFirst Amendment free speech, most notablyrnHugo Black and Fad Warren, hadrnquite clearly indicated that punishingrnflag burning did not run afoul of thernFirst Amendment, because flag burningrnwasn’t speech.rnBut the majority’s expansive readingrnof the First Amendment, in which anrnextremely wide variety of acts could berninterpreted as protected speech, hit a resonantrnnote with the academy and thernmedia, which applauded the majority’srndecision as a triumph for cherishedrnrights. Many citizens, however, believingrnthe flag was still worth preserving, beseechedrnCongress and President Bush.rnThe President dutifully suggested a constitutionalrnamendment to overturn Texasrnv. ]ohnson, but instead Congress passed arnstatute designed to punish flag burning.rnIn 1990, the Supreme Court struckrndown this statute as well, which has ledrnonce again to an attempt to pass a constitutionalrnamendment protecting thernflag.rnEven though the opponents of thernFlag Amendment tried to paint it as arndangerous trampling of American freedoms,rnat the same time the’ sought torndismiss it as a trivial concern, not worthrnraising to a constitutional lcel. As theyrndid in 1989 and 1990 when the amendmentrnwas first discussed, its critics railedrnat its proponents for attempting to trivializernor “clutter” the Constitution. Thernquestion of how something terrifyingrncould be simultaneously trivial was neverrnaddressed. But the truth is that the FlagrnAmendment is neither trivial nor anrnattack on the Bill of Rights, and onernsuspects its enemies actually sense this.rnReal speech—verbal, written, published,rnor broadcast—would be unaffectedrnby the Flag Protection Amendment,rnand no Americans would be barred fromrnexpressing any ideas that they can nowrnexpress. Moreover, the amendment effortrnis actually an attempt to turn backrnthe tide of “self-actualization” jurisprudencernthat sustains the liberals’ expansivernreading of the First Amendment. Itrnwas that jurisprudence—a bastard sort ofrnconstitutional reading—that also gavernus the right to purchase contraceptivesrnin Griswold v. Conneeticut (1965), thern”woman’s right to choose” in Roe v.rnWade (1973), and the right to ban schoolrnprayer in Lee v. Weisman (1992).rnSuch jurisprudence assumes that therntask of the Constitution was to create arnnational government that would stop thernstates from interfering with any person’srnlifestyle choices. But the Constitution’srnFramers were not late 18th-century JohnrnStuart Mills, or precursors of new-agernself-improvement mongers. Indeed, thernFramers crafted the Bill of Rights in orderrnto restrain the federal governmentrnfrom imposing particular cultural choicesrnon the people of the states. The projectrnof the liberal self-actualizers, then,rnactually perverts the very purpose of thernBill of Rights, since they seek to straitjacketrnthe states and the federal governmentrninto promoting their ovn limitedrncultural vision. The Bill of Rights,rnthrough a dubious line of SupremernLIBERAL ARTSrnDAHMER THE HUMANITARIANrnAccording to the Milwaukee Sentinel last September, Joyce Flint, the mother of serialrnkiller Jeffrey I^ahmer, whose body has been cremated, said she “wants her son’s brainrnexamined to determine whether biological factors influenced his actions. ‘Jeff alwaysrnsaid that if he could be of am help, he wanted to do whatever he could.”‘rnlANUARY 1996/45rnrnrn