Who Rules in America and UK?

If I need reminders of the differences between the principles of American and British government, it only requires a look at issues which we in Merry Olde would regard as peripheral but where in USA they take centre stage.

In England, there are no laws preventing the public burning of a flag which depicts the Union Jack or the English Cross of St. George, provided the act does not lead to arson, etc. If people want to waste money buying a flag and burning it in public, they have the right to do so. However, should Parliament decide to outlaw British flag burning in public, that would end of the matter. Since 1688, the Crown in Parliament has been sacrosanct, thus an Act of Parliament becomes a binding law unless and until repealed by Parliament. If a law proves very unpopular and the government refuses to change it, the public can express its displeasure by voting that government out of office, leaving it to the incoming government to repeal that law.

Constitutional experts might challenge me on two grounds. First, the UK is subject to the laws of the European Union and if the EU decides that flag-burning is lawful, the British Act may be defeated. However, it is always open to Parliament to withdraw from the EU and the latter cannot prevent an exit. Second, a challenge to the relevant UK courts to defeat the Act might succeed but only on grounds of interpretation of the written words of the Act. The courts have no right to challenge the will of Parliament, however distasteful an Act may be.

In America, the law is different. To many Americans, setting alight the Stars and Stripes is beyond offensive. What it is not is illegal. For decades, those Americans who abhor flag burning have called for punitive measures to prevent it. However, in America the First Amendment to the Constitution is paramount. No state or federal legislation seeking to prevent flag burning in public would be constitutional.

This week, the governor of South Carolina called for the Confederate flag that has flown on the statehouse grounds for more than 50 years to be removed, in the aftermath of the Charlestown killings. “We are here in a moment of unity in our state, without ill will, to say it’s time to remove the flag from the capitol grounds,” said Governor Haley. “One hundred and fifty years after the end of the civil war, the time has come.”

Suddenly a symbol that the governor herself, only days earlier, had said was beyond her power to move seemed to be on the verge of removal by a broad bipartisan consensus. However, if the state legislature rejects the proposal, the Governor is stuck, unless and until a court rules in her favour. The state legislature intends to address the flag issue in an extraordinary session this week.

A tangential issue arose recently when the Supreme Court ruled that messages displayed on specialised vehicle licence plates are a form of speech and the State of Texas was entitled to reject a proposed design that featured the Confederate flag. At first sight, the ruling might seem contradictory but the court explained that the design proposed by the Sons of Confederate Veterans would not simply reflect the views of the driver but by implication the state in a manner it did not want to endorse. As the Confederate flag is closely associated with the American Civil War and slavery. Justice Breyer expressed the majority view: “Texas cannot compel a motorist to display a message he or she finds objectionable.”

Let’s take another issue which concerns motorists: speed cameras. In the UK, we have had these deterrents for fifteen years or more. The UK courts upheld an objection which charged police entrapment because cameras were disguised and placed in positions which were difficult to see. Now the camera boxes must be painted bright yellow and be clearly visible.

In America, motorists don’t face the restriction of speed cameras. Five years ago, the Supreme Court heard a case that dealt with a laboratory analysis of drug evidence. Justice Scalia wrote: “Forensic evidence is not uniquely immune from risk of manipulation…and an analyst may alter evidence in a manner favourable to the prosecution.”  The ruling meant that the state or local authority would be obligated to ensure the speed camera employee testified in court as to the evidence revealed by that camera. This would have made the prosecutions unduly expensive Furthermore, some states including Minnesota have ruled speed cameras unconstitutional on the basis that the photograph identified the car and licence number, not the driver.

In America, court rulings on these types of issues are not necessarily an end in themselves. If a sufficient number of American citizens want to outlaw flag burning or approve the displaying of flags on licence plates, or want the installation of speed cameras, and if members of Congress were persuaded to pass an amendment to the Constitution to this effect, American law would change. What are the chances? Probably zero. Passing an amendment to the Constitution is a lengthy and difficult business. Omitting the Bill of Rights, there have been only 17 Amendments to the Constitution ratified since 1795, and two of those amendments, on Prohibition, cancelled each other out.