The Instigator
ConservativePolitico
Pro (for)
Losing
0 Points
The Contender
Mimshot
Con (against)
Winning
19 Points

Flag Burning Should Be Illegal

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Post Voting Period
The voting period for this debate has ended.
after 5 votes the winner is...
Mimshot
Voting Style: Open Point System: 7 Point
Started: 2/9/2012 Category: Politics
Updated: 5 years ago Status: Post Voting Period
Viewed: 11,738 times Debate No: 20994
Debate Rounds (3)
Comments (16)
Votes (5)

 

ConservativePolitico

Pro

The burning of the American Flag by citizens of the United States of America should be illegal.

I will be arguing Pro.

First Round acceptance only.
Mimshot

Con

I accept. Good luck.
Debate Round No. 1
ConservativePolitico

Pro

Thank you for accepting this debate.

The Flag

The US flag and all flags are powerful symbols and are more than just cloth that you can burn in order to express your freedom of speech.

The flag consists of a few key components that we must review:

50 stars
13 strips
red, white and blue

- 50 stars represent each of the 50 states currently in the Union

- 13 stripes to represent the original 13 colonies of the British Empire

- red for the blood shed and valor

- white for purity and innocence

- blue for justice and vigilance
[1]

Now as we can see the flag is a representation of everything from our history to our values and is far more than a simple symbol but a complex weave of America that we use to represent the entire country.

The Pledge of Allegiance

Most, if not all, Americans have said the Pledge of Allegiance at some point in their lifetime. Now many people don't think twice about saying it but it is a binding pledge.


I Pledge Allegiance I Promise to be faithful and true (Promise my loyalty)
to the flag to the emblem that stands for and represents
of the United States all 50 states, each of them individual, and individually represented on the flag
of America yet formed into a UNION of one Nation.
and to the Republic And I also pledge my loyalty to the Government that is itself a Republic, a form of government where the PEOPLE are sovereign,
for which it stands, this government also being represented by the Flag to which I promise loyalty.
one Nation under God, These 50 individual states are united as a single Republic under the Divine providence of God, "our most powerful resource" (according to the words of President Eisenhower)
Indivisible, and can not be separated. (This part of the original version of the pledge was written just 30 years after the beginning of the Civil War and demonstrates the unity sought in the years after that divisive period in our history)
with Liberty The people of this Nation being afforded the freedom to pursue "life, liberty, and happiness",
and Justice And each person entitled to be treated justly, fairly, and according to proper law and principle,
for All. And these principles afforded to EVERY AMERICAN, regardless of race, religion, color, creed, or any other criteria. Just as the flag represents 50 individual states that can not be divided or separated, this Nation represents millions of people who can not be separated or divided.


[2]

As we can see here the Pledge has a large meaning that you are bound to accept and defend once it is recited. Pledging your allegiance to something says that you will always stay loyal to the thing you have pledged yourself to and cannot be undone unless you specifically denounce the pledge which in this case means becoming an ex-patriot.

The Pledge is similar to things like:
marriage
contracts and other binding agreements

You can't just get out of it whenever you'd like. To get out of the pledge you must then get out of your US citizenship by emigrating.

When the Pledge is spoken you are promising to be faithful and true to the flag and all it represents.

You are pledging your loyalty to the flag itself and the government it stands for. Your allegiance is to the flag and to the United States which stands behind it.

Burning

Burning is used as a message in order to convey displeasure, hate, protest or the cutting of ties with something such as the term bridge burning.

When you burn the US flag you are in essence burning the nation it stands for, burning all of the values it stands for and in turn you are cutting yourself off and alienating yourself from the United States of America.

That being said...

Treason


treason - a violation of allegiance to one's sovereign or to one's state. [3]


As you can see by this definition, treason constitutes violating your allegiance to one's state.

US citizens are born with an obligation and a natural allegiance to the United States which is then fortified and cemented by reciting the Pledge of Allegiance.

The flag represents our sovereign state.

By burning the symbol that represents the United States you are thereby denouncing everything the US stands for and you are showing that you are distancing yourself or cutting ties with the government it represents. Now this is a violation of your allegiance to the flag and therefore to the state it represents and is classified as treason.

It is treasonous for a US citizen who has recited the Pledge of Allegiance to burn the Flag of the United States of America. Flag burning is not protected by the First Amendment anymore than saying "I'm going to kill the President" is or crying "bomb" on a plane.

Flag burning is treason.

Thank you.


[1] http://www.usconsulate.org.hk...
[2] http://www.homeofheroes.com...
[3] http://dictionary.reference.com...
Mimshot

Con

I thank my opponent for the opportunity to debate him on this important topic. I also apologize to all those involved for the confusion I caused in accepting this debate as I foolishly did not read the comment board before accepting.

While I have considerable experience in informal debate, my exposure to formal debates and the particular customs of this site are limited, so I apologize in advance if my arguments do not conform to them. My opponent has grouped his arguments into four contentions, so I will make four responses and then add two contentions of my own

Response 1. The flag
I agree that this was an accurate description of the traditional U.S. flag and its symbolism as understood by most Americans. I would note that the purportedly official description of the flag is found at 4 U.S.C. §1 and the sections that follow[1]. I would direct you to my contention 2 (and I include my contention 2 here, by reference, if needed for some procedural rule to preserve the argument), but I will not otherwise contest this point.

Response 2. The Pledge of Allegiance
I agree that my opponent as accurately stated the pledge of allegiance. I take no position on the accuracy of his interpretation (in the grey column) of the words, but will stipulate for the purposes of this debate that his interpretation is reasonable. I would, however, like to raise two points in response to my opponent's contention that the pledge is a binding commitment.

R1a. The pledge of allegiance is not a contract
A contract requires more than a statement. In particular, a contract requires an offer and its acceptance and an exchange of "consideration"[2]. Consideration in this context means goods, services, or other things of value. Thus the pledge of allegiance cannot be a contract for two reasons. First, as an inanimate object, the flag cannot make an offer to contract with you, nor could it accept your offer to enter into a contract. A contract to which one of the parties lacks the capacity to contract is invalid. Second, under the terms of the pledge of allegiance nothing is offered in return for the pledge-taker's allegiance. Thus the pledge lacks consideration. Contracts are frequently held to be invalid because there was not an exchange of consideration[4]. Thus the pledge of allegiance is not a contract and not in any way legally binding.

R1b. Many people recite the pledge of allegiance when they are not of legal age to consent to an agreement.
The context in which most Americans recite the pledge of allegiance is in primary or secondary school. This is typically prior to the age at which people are considered adults in the United States[5]. Many Americans never recite the pledge once they are old enough to make legally binding commitments. I suspect that the types of people who would burn the U.S. flag are very unlikely to be those who would recite the pledge of their own free will upon reaching legal adulthood.

Response 3. Burning
"When you burn the US flag you are in essence burning the nation it stands for..."

I disagree with this premise and my opponent offers no support for it. Either way it is largely irrelevant what message one burning the flag is trying to convey. The first amendment prohibits the government from restricting what messages its citizens can convey except subject to strict scrutiny [6]. The requirements for strict scrutiny have not been met here.

Response 4. Treason
While my opponent has found a definition for treason, generally, this definition does not apply in the United States. The Constitution of the United States, Article III, section 3 states that treason against the United States, "Shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort."[7] This does not describe flag burning. Therefore, flag burning is not treason.

Counter Contentions:

Contention 1. Flag burning is an expression of protest protected by the first amendment
When I find actions my country has taken disappointing, I attempt to change those behaviors by contacting my representatives or trying to convince my acquaintances. I do not think flag burning is a good way to express frustration. However, other people do. They feel burning the flag of their country is a way to say that they disprove of its actions. This form of expression is protected by the First Amendment to the constitution (See: Street v. New York [8]). The First Amendment is one of our most cherished traditions and its protections should not be repealed.

Contention 2. Flag burning is a dignified way to retire a worn flag
Flag burning ceremonies are a common way to retire a flag that is too warn to be flown. This practice should not be illegal. You cannot outlaw only protest burnings because then you are back to outlawing only the protest and not the burning itself.

Contention 3. The proposition violates equal protection
Since the proposed law applies only to U.S. citizens it violates the equal protection clause of the 14th Amendment, which states that no one shall be denied "equal protection under the law"[7].

Contention 4. It makes no sense to outlaw burning something that does not exist
The U.S. Constitution grants congress limited powers. Those powers not explicitly granted to it are reserved for the states (10th Amendment [7]). Among the enumerated powers of congress one cannot find the power to declare a flag of the U.S. (U.S. Constitution Article I, section 8 [7]). Therefore, the laws defining the U.S. flag (at title 4 U.S. Code) are unconstitutional. If congress does not have the power to define the flag of the United States, how can congress outlaw burning it?

Wow, those characters ran out fast. References in comments.

Debate Round No. 2
ConservativePolitico

Pro

R1a.

I never said the pledge of allegiance is a contract, I said it was similar to one. It is not a contract. Let my clarify.

You do not have to be any age to pledge loyalty to someone or something. People under the age of 18 pledge their loyalty to sports teams, schools, family, religion and other institutions long before they can enter into a legal contract.

While it is not a contract I would like to point a few things out about your argument:

- the flag may be an inanimate object but the thing it represents, the US government and her people, is not inanimate and can provide you well being, protection and security.

- while the pledge is not legally binding the recitation of such a pledge shows that you have pledged your loyalty and allegiance to the United States, you cannot then burn the thing that represents it without destroying that loyalty

- all citizens have a duty and obligation to be loyal to their nation

- once again the pledge is not an official legal document so you do not have to be 18 in order to enter into it

Strict Scrutiny

I disagree, a flag burning law would indeed pass the strict scrutiny test.

Government interest - the government would have an interest to protect the symbol of the United States, to protect against comforting the enemies of the United States while preventing the spread of terrorism or anti-American sentiments.
Narrowly tailored - this law would serve one purpose only, to protect the rights and dignity of the US flag, this law would serve no other purpose or touch any other areas
Least restrictive means - this would be the simplest way to end flag burning by banning flag burning [1]

So a flag burning law would indeed pass the Strict Scrutiny test.

"OR in adhering to their Enemies, giving them Aid and Comfort"

The burning of the US flag by Americans on US soil would indeed adhere to the beliefs of the enemies of the United States by giving theme Comfort. You can't say that terrorists would be heartened to see Americans burning our flag. You can't say that Russia and Iran wouldn't be comforted and feel proud to see people burning our own symbol in the US. This does adhere to the anti-American ideas of our enemies and would comfort them greatly making the burning of the US flag still a treasounous act.

C1.

Again, I point out that while we have a right to free speech that right is not completely free or unregulated. There are plenty of things I can't do.

I can't harrass you.
I can't threaten to kill you.
I can't say I want to kill the president.
I can't scream fire in a theater.
I can't shout bomb on an airplane.
I can't lie in court.
I can't bring false testimony or slander public figures.

This First Amendment right does not guarentee complete and total freedom of speech. In the same way I can't threaten to kill the president or plot to bring down the United States, neither then should I be able to burn the US flag. While I can express my desire to murder someone, I can also end up in court for that expression. I can't express my will to do art on the side of a public building. The First Amendment is wonderful, I agree. But it is not completely overreaching like you imply. It would be no trouble to add the burning of the US flag to this list of things you can't say or express.

C2.

Burning a person is also considered a dignified way to retire a body however I cannot burn someone out of spite or malice. Burning retired flags would be fine just as cremation is fine but cremation does not allow for the burning of live people nor does the prohibition of burning live people ban the practice of cremation.

C3.

The US Constitution only applies to US citizens. And if this is the case then we'll make US flag burning illegal on US soil. This does not change my argument. Immigrants who are citizens of other countries must adhere to our laws but should not garner protection of our Constitution.

C4.

Your last point is not applicable because Congress finds ways to pass laws that do not coincide with the Constitution. However, this law could be passed under the Elastic Clause which states that Congress can pass any law it finds neccessary and proper to carry out its duties.[1] Since the burning of the US flag can hearten our enemies and feed anti-American protests it can fit into this clause. Also, Congress manages to pass plenty of laws which do not fit with the 10th Amendment. How does Healthcare? How does Stimulus? If it could be passed onto the states then great, I never said it had to be a federal law. Florida is a state, under the 10th Amendment they could pass an anti-flag burning law. Florida is in the United States therefore the Resolution still applies.

Conclusion

- the flag is a symbol of the United States and since you can't destroy the United States or work to bring down the government you cannot therefore burn the flag

- flag burning does not fit into the First Amendment

- people cannot in good taste, without violating their loyalty to the United States, burn the US flag

- flag burning passes Strict Scrutiny

- flag burning adheres to enemies of the US and gives them comfort

** Also I would like to make a note that the character limit is binding. Sources outside of a debate are not to be counted by voters based on site rules. I cannot post arguments in the comments therefore sources in the comments do not count. Perhaps this is something you can keep in mind for the future.

Thank you.

[1] http://en.wikipedia.org...
[2] http://dictionary.reference.com...
Mimshot

Con

As a preliminary mater, let me say that including references in comments is a common practice in the debates I have seen on this site. Since the issue has been raised, however, I will include my previous set of references below so as to not exceed 12000 characters total.
  1. http://bit.ly...
  2. http://bit.ly...
  3. http://bit.ly...
  4. http://bit.ly...
  5. http://bit.ly...
  6. http://bit.ly...
  7. http://1.usa.gov...
  8. http://bit.ly...

I will also add for this round:

Now, on to the merits.

Pledge of allegiance

My opponent concedes that the pledge is not "an official legal document," thereby reinforcing my premise that it is not legally binding. We should not punish people for reneging on a not-legally-binding agreement. Moreover, my opponent concedes (beyond what I would claim) that the pledge of allegiance is akin to allegiance to a sports team. A free society should not incarcerate a grownup for withdrawing allegiance to a sports team favored while a child. Nor, should we be concerned with purely symbolic hostility directed at our nation's emblems.

My opponent states, "All citizens have a duty and obligation to be loyal to their nation." I agree, but that loyalty is, as he says, to the nation and its ideals, not its symbols or leaders. What of a soldier who is ordered to shoot foreign civilians, or American Jews, or Republicans? Refusing such an order would be more loyal to the United States than following it. Dissent can be a greater form of loyalty than compliance.

Strict Scrutiny and C1

My opponent confuses "government interest" with "compelling government interest." Quashing dissent has never been held to be a compelling government interest -- very much the opposite, in fact. Moreover, flag burning bans have been held to fail strict scrutiny in Texas v. Johnson[b]. The Constitution would need to be amended to remove first amendment protections for flag burning to effect a ban.

There certainly are exceptions to the first amendment, but flag burning has previously been held not to be one[8,b]. All of the exceptions my opponent listed involve tangible harm (like people being trampled leaving a theater) and none of them involve political speech. The question before the Supreme Court in the case above was "whether Texas has asserted an interest ... unrelated to the suppression of expression" (emphasis added)[b]. The ban proposed is strictly related to expression particularly because, as stated below, the ban does not apply to reverent burnings, only irreverent ones.

Treason

The phrase is "Aid and Comfort." My opponent seems to have missed the logical conjunctive. What is needed to be convicted of treason is an "overt act"[7] of giving material aid to an enemy, not merely doing something that an enemy may like. His preposterously broad reading would yield absurd results. Certainly the U.S. World Cup team's losing gives some comfort to Ayatollah Khomeini, but I think we all agree the players should not be held for treason. Finally, even if to burn the flag were treason, this fact would not support the proposition. Treason is already illegal under 18 USC 115 [c], so if burning the flag were treason there would be no need to pass an additional law banning flag burning.

C2

My opponent here and in his reply to C1 clearly illustrates that what he is truly interested in is purely censorship. It is fine for him if you want to burn the flag out of respect for our government, but not out of protest. It is exactly this kind of discrimination between favored ideas and unfavored ones that the first amendment was designed to prevent. If Congress has the power to ban burning the American flag in protest, why not the Confederate flag? If Congress has the power to ban burning the Confederate flag, then why would it not have the power to ban waving a Confederate flag or a Gadson flag or a church flag?

Burning a live person is not a form of speech and can be banned because of the material harm caused that person. Burning someone in effigy is protected under the first amendment.

C3

Some parts of the Constitution apply to citizens, some parts to all people, and authors of the constitution know how to distinguish the two. In the 15th amendment it says, "The right of citizens of the United States..." The 14th amendment says, "No state shall ... deny any person..." The first amendment says neither. It is a restriction on the government stating "Congress shall make no law..." That restriction was extended to the state legislators by the 14th amendment[d].

C4

The power for stimulus spending comes from the tax and spend clause. Health care purportedly comes from the power to regulate interstate commerce, but this exercise of Congressional power is now being challenged in court and may be overturned. The necessary and proper clause only applies to actions "necessary and proper" to carrying out the enumerated functions. Because Congress has the power to create post offices it has the power to create the crime of robbing a post office. There is no such predicate for creating a national flag. Moreover, Congress taking one unconstitutional action does not grant it the power to take another.

Summary

Like my opponent, I find flag burning offensive and disrespectful. There are others, however, who feel that it is the most powerful way to voice their disappointment in the actions of their government. There can be no free society without the right to protest government action, and that is exactly what the proposed ban seeks to take away. It does not ban the act of burning the flag, only the idea that it's being burned in protest of the government. In the words of president Eisenhower, "May we never confuse honest dissent with disloyal subversion."[a] My opponent does just that.

Debate Round No. 3
16 comments have been posted on this debate. Showing 1 through 10 records.
Posted by 16kadams 5 years ago
16kadams
It happens to often.
Posted by ConservativePolitico 5 years ago
ConservativePolitico
Ugh... time to redo lol
Posted by 16kadams 5 years ago
16kadams
happens to me. What you do:

C/P it before you press review.
Posted by ConservativePolitico 5 years ago
ConservativePolitico
Omg... I had my whole argument typed out and when I clicked post it told me to loggin and then it deleted the whole thing!

*Raging Frusteration!*
Posted by 16kadams 5 years ago
16kadams
No mim continue
Posted by thett3 5 years ago
thett3
I will debate you on this.
Posted by Mimshot 5 years ago
Mimshot
Oops sorry. Isn't there a way to challenge directly? We can speed tie this out if you want.
Posted by 16kadams 5 years ago
16kadams
kk
Posted by ConservativePolitico 5 years ago
ConservativePolitico
I'll do it over for yah if you want after this one.
5 votes have been placed for this debate. Showing 1 through 5 records.
Vote Placed by ScarletGhost4396 5 years ago
ScarletGhost4396
ConservativePoliticoMimshotTied
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Reasons for voting decision: The rebuttals provided by the CON were at worst masterful and persuasive, and his knowledge about the American Constitution is far more superior than that of the PRO. Not only that, but the CON has provided plentiful resources in order to back up his claims. My vote must go to the CON.
Vote Placed by Sisyphus67 5 years ago
Sisyphus67
ConservativePoliticoMimshotTied
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Reasons for voting decision: Pro cited the reasonable limits on the expression of free speech (shouting bomb on a plane, et al) that are designed to protect PEOPLE from the damaging effect of speech and tried to correlate those effects with the perceived injury to persons received from a flag burning. No actual harm comes from expressions such as these (or burning a Bible or Koran). Pros argument that one had to emigrate to get out of the pledge of allegiance was very thin. Con made an excellent case.
Vote Placed by Maikuru 5 years ago
Maikuru
ConservativePoliticoMimshotTied
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Reasons for voting decision: Pro starts by strongly asserting the commitments associated with reciting the pledge, only to later compare the implied allegiance to the loyalty one feels for a sports team. This completely takes the wind out of Pro's sails, though he was left with few options after Con's precise and pointed attacks in Round 2. Con successfully shows that Pro's stance undermines the valued acts of protest and disagreement that the flag and country represent. Arguments to Con.
Vote Placed by 16kadams 5 years ago
16kadams
ConservativePoliticoMimshotTied
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Reasons for voting decision: Now, I believe con in the last round basically won the debate. He debunked pros main argument, treason, and provided many sources, to boot. Also he had more credible sources. Also as con points our the pledge of allegiance is not legally binding, or required to follow it. Con disproved pros main points while his where still for the most part standing in the end. Good debate.
Vote Placed by THEBOMB 5 years ago
THEBOMB
ConservativePoliticoMimshotTied
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Reasons for voting decision: This is a difficult debate to judge as both sides presented valid arguments. But, Pro did not adequately respond to fact burning a flag is a proper way to retire it. This resolution calls for ending all flag burning, not just burning out of spite. While it can be disrespectful it still is a tenant of a free society to allow a person to express their views of the USA.