A reader writes in to ask for my take on the flag-burning amendment that just passed the house and which, allegedly, may actually pass the Senate. [At the moment I cannot find a full copy of the text of the current amendment, but if it is anything like previous amendments it gives Congress (but not the states) power to punish desecration of the American flag; it might even shore up the constitutionality of the proposed federal-inalienable-freedom-to-fly-the-flag act.] The New York times counts 65 Senators who have voted for the amendment in the past or promised to vote for it this time.

I assume there is a sort of prisoner's dilemma game going on here; probably far fewer than 67 U.S. Senators would actually like to see the flag-burning amendment pass (since elites, which Senators are, tend to oppose these measures at much higher rates than the general population) but there is a certain mileage to be gained in using a popular issue like this to burnish one's conservative or moderate credentials. Thus, the optimal outcome for these swing senators is probably to vote for the bill but have it fail. But of course, if too many of them vote for it . . . it passes the Senate, and presumably will roar quickly through the states.

Of course, one does want to encourage the notion that the Constitution means what it says, and the notion that unpopular Constitutional provisions should be amended rather than ignored. Still, one can't abstract from the ultimate merits of the question. I have no mixed feelings about the amendment. Like Eugene Volokh, but contra the governments of all fifty states and the U.S. House, I think that it is a great thing that people can burn our flag with impunity (except, of course, from arson laws).

One of the charms, one of the deep moral virtues, of our system of constitutional government is the way it constantly undermines itself-- the separation of powers and federalism force government to fight against itself; the free speech and press clauses and the right to bear arms help ensure that people retain not just the right but the power to fight the government if need be; standing, jurisdiction, statutes of limitations, the grand jury, jury nullification and prosecutorial discretion all incorporate the idea that facial enforcement of the law is not always a desirable thing (this is what my a Civ Pro classmate professor used to call "too much justice"). In a small way, the right to burn the flag is a symbol of the same thing-- the (peculiarly American?) ideal that a free society thrives on not just order but also tension, dynamism, and political conflict, and the (universal?) ideal that a just government is one that is not afraid of challenge. Changing the symbol will not change the substance, of course, but I like symbols, and since I think the self-questioning nature of American government is a Very Good Thing, I'd be really happy to see this one preserved.

When I was in Delaware a few weeks ago looking for an apartment, I took the opportunity to drive a short distance into Pennsylvania. There was a bookstore in a barn about 30 miles north of Wilmington, but it was closed when I arrived. I got ravenously hungry on the way back, but was stuck in a terrible storm - cold, windy, and the rain was almost hail-like in its ferocity. So I found one of those depressing highway rest-stops along the road and parked.

It was as bad as I feared, though an improvement over those days when the most exciting thing in the rest-stop was one of those funny novelty toy machines near the cigarette dispenser at the door to the bathroom. There was, to my surprise, a starbuck's - whatever one may think of the chain, they are a welcome addition. But I didn't want coffee. And the only choices for food were Roy Roger's or some kind of extremely dubious taco hut.

I stood paralyzed for a moment, and then trudged towards the burger joint. I don't mind Roy Roger's roast beef on those occasions when I'm only eating to keep myself from gnawing on odds and ends, and you can make an almost creditable tomato salad from their "fixin's" bar, if the ingredients are more or less fresh. Still, I was sad. The fries weren't worth eating, since they were on heat lamps, and there wasn't a non-processed dessert to be seen.

That is, until I notice a small basket underneath the cashier's desk, filled with amateurishly packaged sweet potato pies. The label said New Jersey, and that they were made by "Sweet Potato Pie, Incorporated". My map said I was near New Jersey. So I bought three of them and waddled off to stuff myself with my fake tomato salad, the roast beef, and the intriguing pies. They turned out to be really good, especially for a buck or so apiece, stuck in a basket near the floor of a desultory rest stop. But I forgot about them until ten minutes ago, when I staggered away from my bar exam review to browse the web. I shouldn't have, because there's an interesting story here. specifially, it turns out that Sweet Potato Pie, Incorporated of New Jersey is a locally owned "African American Family Business", profiled by the library of Congress. And somehow, their small, tasty, pies had gotten themselves into the middle of what looked to be a rest-stop Roy Rogers. The pies were, in other words, exactly what they looked like - the product of what was at least once a smaller home industry.

Those pies made the continuing quasi-monsoon a lot easier to bear on my way back to Virginia. And I shouldn't really have found them. Not there. Not in Roy Roger's. So I guess the message is to keep your eyes open. Even in a rest stop.

Heidi Bond asks below (as she has asked before) whether a group-blog counts as a jount publication for Erdos purposes. This question has been answered before on this blog-- probably not unless the post is joint-authored.

Does co-blogging give you an Erdos number of the first kind?

Don Herzog picks on Representative Bartlett's freedom-to-display-the-american-flag bill. The bill would forbid homeowners' associations from forbidding the display of the flag. In that sense it's like the plethora of state and local laws that usually restrict what homeowners' associations can restrict, and fairly unexceptional. Of course, this bill is federal, and so Professor Herzog (rightly) points out that even after Raich any connection to the commerce clause is quite dubious.

I wonder, though, why assume that this bill would be justified under the ubiquitous commerce clause? After all, from whence does the power to specify or create a flag come from in the first place? According to David Currie, 63 U. Chi. L. Rev. 1, 47, the Third Congress understood its power to create a flag to be "inherent in nationhood"-- an argument which is reinforced by comparative constitutionalism and history. The Third Congress fretted about its enumerated powers a lot and certainly wouldn't have pegged a flag as commerce clause legislation without a huge fight.

But once we've put the American Flag outside of the commerce clause box, indeed outside of the Article 1, Section 8 box at all, it isn't fair to protest that other laws dealing with said flag aren't in the list of enumerated powers either. The Necessary and Proper clause applies not only to the Art. 1 Sec. 8 powers but to "all other Powers vested by this Constitution in the Government of the United States," so I take it the relevant question for Rep. Bartlett's flag act is not as Professor Herzog erroneously assumes, what relationship homeowners' associations, flags, et. al. have to interstate commerce. The relevant question is whether a federal law that provides an inalienable right to wave the flag is "necessary and proper," in the Constitutional sense, to Congress's presumed power to create the flag in the first place. This seems to me quite an open question.

To be honest, I am a little uneasy with the "inherent in nationhood" argument for the Federal definition of the American Flag-- we are supposed to be a government of enumerated powers, after all. But given the constitutionality of the American Flag, which Professor Herzog does not question, the constitutionality of federal flag-waving law is non-frivolous, and certainly not "constitutionally hopeless".

[It is possible that Professor Herzog has in mind some different enumerated-power home for the flag; surely(?) not the interstate commerce clause, but perhaps the war powers (as Justice Rehnquist has implied), or the 14.5 power, or something else. But whatever it is, it's probably that enumerated power that would provide better grounding to the Bartlett Flag Act.]

Admittedly, I'm a bit shady on the details of the study in the New York Times Amanda discusses below, but supposing that the article is true, it raises a few interesting questions (cf., of course, over and over again, my thoughts on Scientific Sexification):

1) Are "Democrat" and "Republican" reasonable indicators of political position, or is there a better indicator for political belief?
2) Does ideas on gun control, taxes and abortion a Democrat or Republican make? Are they even good metrics for position on a political spectrum?
3) Given the recent Republican majority, does this mean that America is genetically selecting for Republicans?
4) How does one account for the Democratic president a mere five years ago? (i.e., exactly how fast is the genetic drift of Democrats in the population?)

5) Perhaps most importantly: in order to get a Democratic majority, do Democrats at the same position of the political spectrum need to be having sex more?

Some food for thought, hopefully.