Just-Affirmative-Grant Theory

Answer 1

1) Affirmative Power - The 28th Amendment was properly, albeit swiftly, enacted. Although the super-majority requirements of the amendment process are meant to force deliberation, the absence of deliberation does not invalidate an otherwise proper amendment. Any flaws in the amendment process (of which there do not appear to be any), would not be justiciable in any event.
Unlike other amendments, e.g., 13, 14, 15, 19, the 28th Amendment contains no separate enforcement clause, but this is understandable in that the 28th is exclusively a grant of power; thus, an enforcement clause would be redundant. The grant of concurrent authority to the states and Congress is odd but not unprecedented. (See the repealed 18th Amendment.) In other
It merely creates a new power subject to the previously existing limits. However, this just-an-affirmative-grant theory is problematic in that the 28th Am purports to confer an affirmative power on the states; yet the states do not derive their affirmative powers from the federal Constitution; thus, as to the states, the point of the Amendment is to lift the 1st Am's bar to flag-desecration prosecutions, and it is logical to assume that this is the point with respect to the federal government as well. Moreover, the obvious purpose of the 28th Am is, at a minimum, to overrule Texas v Johnson and United States v. Eichman. To hold otherwise would be to deny the People's ability to amend the Constitution. In a prosecution against White, White could object that he did not violate the Act because the homemade 49-star flag was not "the flag of the United States." To the extent that the Act covers imperfect flag replicas, White could argue, it exceeds the government's power under the 28th Amendment. These are close questions; however, the difficulty of determining what exactly counts as a U.S. flag is ordinarily invoked as an argument against a flag-desecration amendment, and by passing the amendment, Congress and the states rejected this argument. Presumably, the 28thAmendment gives Congress some leeway to define a U.S. flag broadly. Whether it did so in the Act is largely a question of statutory construction, while the assignment asks for constitutional arguments. {Comment: Perhaps the statute fails to give proper notice, a due process issue that some answers raised.} Finally, Vermont probably has third-party standing to raise the 1st Am objection on the ground that overly broad laws chill free speech, and should be amenable to challenge by any party with Article III