David R. Henderson  

In Praise of Ineffective Politicians

Why I'm Not Freaking Out... Did John Allison just endorse ...

Twitter today is all heated up with justifiable upset about Donald Trump's latest anti-liberty proposal: a prison sentence and possibly loss of citizenship for someone who burns a flag. Other tweeters have pointed out that the prison sentence part of what he proposes is similar to the legal sanctions in a bill on flag burning that Senator Hillary Clinton co-sponsored: the Flag Protection Act of 2005.

Aside: One of the biggest benefits of the web is that it's much harder now to stuff things down the memory hole, and this latest revelation about Senator Clinton is one such instance.

I mention Clinton, not to join the chorus of people attacking her, fun as that might be, but to make a different point: her bill didn't go anywhere. Indeed, she was fairly ineffective as a U.S. Senator. Many people, including Donald Trump, have criticized her for that. But I come to praise her. I would love to have politicians who are effective at protecting and increasing our freedom. But sometimes the best we can do is get politicians who are ineffective at reducing our freedom.

A 19th century politician named Gideon J. Tucker wrote, "No man's life, liberty or property are safe while the Legislature is in session." He could have added that they're not safe even when the legislature is out of session. But the point remains: If they're in session, they're often (usually?) trying to reduce our freedom and so it's great when they're ineffective at doing so.

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COMMENTS (10 to date)
Mike Sax writes:

I notice an interesting dynamic. Hillary Clinton is caricatured as the most evil person to have ever lived for doing something that most normal politicians do.

When Trump is called out for something the defense is again and again that Hillary Clinton did it so it's ok.

Funny how it works. She's pure evil. I'm now doing Policy A. You don't like it? Well Hillary Clinton also did it.

In any case even if that bill in 2005 honestly is apples to apples with what Trump is talking about-it isn't-she was 1 of 100 Senators.

Trump as a President who doesn't respect constitutional norms can do all kinds of damage in this regard.

It seems to suggest that free speech he doesn't like will be prosecuted.

P.S. It's' amazing now that the woman has lost those who hate her still take pleasure in attacking her.

We truly are slouching towards being a Banana Republic.

Alexandre Padilla writes:


But even that bill was passed, even if Trump succeeded to convince the Congress to pass such an Act, it would end up being struck down by the US Supreme Court. I can't believe that Trump, Clinton, and the senators/rep who supported such Act are unaware of Texas v. Johnson (1989), which invalidated state prohibitions on desecrating the flag because such prohibitions violate the First Amendment.

My comment doesn't invalidate your main point, which I agree with. However, I find troubling that people who go around talking about respecting the US Constitution don't understand how their big ideas violate the Constitution.

Khodge writes:

Yes, ineffective politicians are exactly what we need. We need, even more, news outlets that do not make bills passed a positive on the political report card.

Jon Murphy writes:


From what I understand, the 2005 bill attempted to forge a middle ground between the SC ruling and the "flag outrage." It tried to classify only certain kinds of burning, burnings done to incite violence rather than make a political statement,illegal. That may have been enough to pass the Court.

Michael Byrnes writes:

The 2005 bill, according to that link, was pure theater. It made it illegal to burn a flag "with the primary purpose and intent to incite or produce imminent violence or a breach of the peace".

I'm curious. Under current law, what actions can one legally undertake "with the primary purpose and intent to incite or produce imminent violence or a breach of the peace"?

Alexandre Padilla writes:


I am no expert but the US Supreme Court decision addressed that issue. The Texas court which was overruled by the US Supreme Court made that argument that burning the flag would incite outrage and was anonymous to incite violence. The non-unanimous decision (I didn't mention that) argued that was subjective and didn't addressed other type of flag burning or burning that do the opposite. The dissent opinion tried to argue again that flag burning could incite violence and there was room for government to regulate it.

Ultimately, I doubt the 2005 Act or Trump proposal would pass the Constitutionality test.

Shane L writes:

Here in Ireland we had a recent interesting complaint by an opposition member of parliament that the government has passed too few laws. He was a member of a previous government coalition, defeated in this year's election:

"Just 14 Acts have been passed since they took office, and just 20 this year in total. That compares to 66 Acts passed last year.

"Indeed, I can’t think of any year during my time in the Oireachtas [legislature] when so few bills became law."

His view, and I imagine most people's view here, is that it is the job of government to get things done, and that often means passing many laws. I thought of American friends, especially with libertarian leanings, who described political gridlock as a feature, not a bug!

Andrew_FL writes:

Clinton also voted against a the Flag Desecration Amendment in 2006, for what it's worth, as did Bob Bennett, despite them being the bipartisan duo who introduced the 2005 bill.

JK Brown writes:

Alexandre Padilla,

You are making the mistake of assuming politicians are honorable people and care about constitutionality. They pass legislation for their own political benefit. They suffer little or nothing when those acts are struck down by the courts years later. And there is always the chance as Chief Justice Roberts did in the Obamacare case, that the court will stretch to make new legal powers.

Passing an act against burning the flag has real benefit for the legislators in their constituencies. They can hardly be faulted if the evil judges overturn it?

JK Brown writes:

Popular lawmaking is a very recent phenomena in human history. Unfortunately, the advent of democracy came with the impulse to "make a law" to tyrannize those who don't live as the advocated.

But no one, I think, has ever called attention to the enormous differences in living, in business, in political temper between the days (which practically lasted until the last century) when a citizen, a merchant, an employer of labor, or a laboring man, still more a corporation or association and lastly, a man even in his most intimate relations, the husband and the father, well knew the law as familiar law, a law with which he had grown up, and to which he had adapted his life, his marriage, the education of his children, his business career and his entrance into public life -- and these days of to-day, when all those doing business under a corporate firm primarily, but also those doing business at all; all owners of property, all employers of labor, all bankers or manufacturers or consumers; all citizens, in their gravest and their least actions, also must look into their newspapers every morning to make sure that the whole law of life has not been changed for them by a statute passed overnight; when not only no lawyer may maintain an office without the most recent day-by-day bulletins on legislation, but may not advise on the simplest proposition of marriage or divorce, of a wife's share in a husband's property, of her freedom of contract, without sending not only to his own State legislature, but for the most recent statute of any other State which may have a bearing on the situation.

Thus at first the American people got the notion of law-making; of the making of new law, by legislatures, frequently elected; and in that most radical period of all, from about 1830 to 1860, the time of “isms” and reforms — full of people who wanted to legislate and make the world good by law, with a chance to work in thirty different States — the result has been that the bulk of legislation in this country, in the first half of the last century, is probably one thousandfold the entire law-making of England for the five centuries preceding. And we have by no means got over it yet; probably the output of legislation in this country to-day is as great as it ever was. If any citizen thinks that anything is wrong, he, or she (as it is almost more likely to be), rushes to some legislature to get a new law passed. Absolutely different is this idea from the old English notion of law as something already existing. They have forgotten that completely, and have the modern American notion of law, as a ready-made thing, a thing made to-day to meet the emergency of to-morrow.

--Popular Law-making: A Study of the Origin, History, and Present Tendencies of Law-making by Statute, Frederic J. Stimson (1910)

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