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As Treanor emphasizes, "What appears to be a puzzling, unconvincing, and uniquely aggressive exercise of judicial review was fully consistent with prior judicial decisions in which courts had invalidated statutes that trenched on judicial authority and autonomy" (455).
Texas v. Johnson (1989). Perhaps as no other issue in the post-September 11, 2001 climate is that of flag-burning. The debate is heated and emotionally charged, and it is easy to get caught up in the rhetoric. Nevertheless, it is important to keep in mind what the flag represents to many people and avoid characterizations that would lead to misunderstandings. The U.S. flag and - in the case of Texas v. Johnson, state flags can mean a great deal to citizens and it is natural to expect them to want their flags honored and respected. When people use the symbolism inherent in the national or a state flag, they touch buttons that are not otherwise reachable and it is not surprising to see legislation seeking to ban such activities in response. Notwithstanding the ability of flags to be used for this button-touching purpose, though, it is equally important to keep in mind just what the First Amendment is all about.
The U.S. flag and the several state flags also represent the fundamental constitutional right of all Americans to speak their minds in any fashion they desire, and this right has been expanded to include such a wide array of activities that to prohibit flag-burning just does not make sense. The U.S. flag from this perspective protects the very right of its citizens to burn it whenever they damn well please. As Raskin (2003) emphasizes, "Because 'speech' and 'nonspeech' were mixed together in the flag-burning [in Texas v. Johnson], Justice Brennan followed the Court's O'Brien standard, which requires government to show a 'sufficiently important governmental interest in regulating the nonspeech element' in order to justify any 'incidental limitations on First Amendment freedoms'" (2000). This author also notes that Justice Brennan also maintained that the asserted "governmental interest," though, must be "unrelated to the suppression of free expression" (Texas v. Johnson 414-17 cited in Raskin at 211). According to this author, "The problem for Texas was that its asserted interest 'in preserving the flag as a symbol of nationhood and national unity' was precisely related to political expression. The state wanted to control the symbolic uses of the flag to prevent anti-government messages (emphasis added) (Raskin 211). To hold otherwise, the Court reasoned, would be to sanction different treatments by different interest groups in the physical integrity of the flag. For example, to hold that the ceremonial burning of flags when they had become unserviceable was allowed but to outlaw the practice by those who wanted to burn flags for other reasons would be say that "the flag itself may be used as a symbol only in one direction. We would be permitting a State to 'prescribe what shall be orthodox'" (Texas v. Johnson 414-17 cited in Raskin at 211).
The research showed that each of the three branches of federal government enjoy certain responsibilities and rights and the system of checks and balances that exists provides some balance between them. When the Supreme Court, in its capacity as the "ultimate expositor of the constitutional text," determines that a law fails its judicial review, it would seem there is little the other branches can do to compel it to act otherwise. Certainly, in his capacity as commander in chief of the nation's armed forces, the president could surround the Court building with troops and it is likely this option has been seriously contemplated by several presidents in moments of frustration with their initiatives because of a Supreme Court decision. Nevertheless, the research also showed that the concept of judicial review, even though it is not specifically explicated in the Constitution, remains a fundamental component of the American legislative process and Chief Justice Marshall's decision in Marbury v. Madison set the stage for this concept today.
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Marcus, Maeva. Origins of the Federal Judiciary: Essays on the Judiciary Act of 1789. New York: Oxford, 1992.
Raskin, Jamin B. Overruling Democracy: The Supreme Court…[continue]
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