Flag Desecration Amendment
Encyclopedia
The Flag Desecration Amendment, often referred to as the flag burning amendment, is a controversial proposed constitutional amendment
to the United States Constitution
that would allow the United States Congress
to statutorily prohibit expression of political views through the physical desecration
of the flag of the United States
. The concept of flag desecration continues to provoke a heated debate over protecting a national symbol, protecting free speech
, and protecting the liberty represented by a national symbol.
While the proposed amendment is most frequently referred to colloquially in terms of "flag burning," the language would permit the prohibition of all forms of flag desecration
, which may take forms other than burning, such as using the flag for clothing or napkins.
The most recent attempt to adopt a flag desecration amendment failed in the United States Senate
by one vote on June 27, 2006.
The full text of the amendment (passed several times by the U.S. House of Representatives
):
This proposed amendment was intended to give Congress the right to enact statutes criminalizing the burning or other desecration of the United States flag in a public protest. Proponents of legislation to proscribe flag burning argue that burning the flag is a very offensive gesture that deserves to be formally outlawed. Opponents maintain that giving Congress such power would essentially limit the principle of freedom of speech
— enshrined in the First Amendment to the United States Constitution
and symbolized by the flag itself.
The theories underlying these First Amendment principles include a robust national discourse about political and social ideas, individual self-realization, the search for truth, and speech as a "safety valve." These concepts are expounded in both the majority and dissenting opinions of the cases described below. There Justice William Joseph Brennan, Jr. noted that the "Principal function of free speech under our system of government is to invite dispute; it may indeed best serve its high purpose when it induces condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger."
found that 63% of Americans opposed amending the constitution to outlaw flag burning, up from 53% in 2004. A USA Today
/Gallup Poll in June 2006 found that 54% of Americans opposed a flag desecration amendment. A USA Today/Gallup Poll in June 2006 reached a different conclusion, with 56% supporting a constitutional amendment, but down from 63% favoring a flag burning amendment in Gallup's 1999 poll. Another poll conducted by CNN
in June 2006 found that 56% of Americans supported a flag desecration amendment.
was passed by Congress in 1968 in response to protest burnings of the flag at demonstrations against the Vietnam War
. Over time, 48 of the 50 U.S. states also enacted similar flag protection laws. All of these statutes were overturned by the Supreme Court of the United States
by a 5-4 vote in the case Texas v. Johnson
, 491 U.S. 397
(1989) as unconstitutional restrictions of public expression. Congress responded to the Johnson decision by passing a Flag Protection Act, only to see the Supreme Court reaffirm Johnson by the same 5-4 majority in United States v. Eichman
, 496 U.S. 310
(1990), declaring that flag burning was constitutionally-protected free speech.
In both cases, William J. Brennan wrote the majority opinion, joined by Thurgood Marshall
, Harry Blackmun
, Antonin Scalia
, and Anthony Kennedy
(Kennedy also authored a separate concurrence in Johnson), and the dissenters in both cases were then-Chief Justice William Rehnquist
(who authored a dissent in Johnson), and Justices John Paul Stevens
(who authored dissents in both cases), Byron White
and Sandra Day O'Connor
.
The decisions were very controversial and have prompted Congress to consider the only remaining legal avenue to enact flag protection statutes — a constitutional amendment. Each Congress since the Johnson decision has considered creating a flag desecration amendment. From 1995 to 2005, beginning with the 104th Congress
, the proposed amendment was approved biennially by the two-thirds majority necessary in the U.S. House of Representatives, but it consistently failed to achieve the same constitutionally-required super-majority vote in the U.S. Senate (during some sessions, the proposed amendment did not even come to a vote in the Senate before the expiration of the Congress' term). The last time it was considered, in the 109th Congress, the Amendment failed by one vote in the Senate.
in 2005 in contrast to the 312 yes votes a decade earlier during the 104th.
The chronology of the Congress's action upon the flag-desecration amendment runs over a period of more than ten years:
In order to be added to the Constitution, it must likewise be approved by a two-thirds vote of those present and voting in the 100-member Senate, as well as be ratified by at least three-fourths of the 50 state legislatures. Senators had until the end of 2006 to take action on H.J. Res. 10 during the remainder of the 109th Congress. On March 7, 2006, Senate Majority Leader Bill Frist
announced that he would bring the bill up for consideration in June 2006. On Monday, June 26, 2006, the Senate began debate on the proposed amendment. The following day, the amendment, sponsored by Senator Orrin Hatch
, fell one vote short in the Senate, with 66 in support and 34 opposed. The Republican nay votes were from Bob Bennett
(UT), Lincoln Chafee
(RI), and Mitch McConnell
(KY). The vote on Senator Richard Durbin's alternative amendment, which would have given Congress the power to ban flag desecration intended to intimidate or breach peace on federal land, was 36-64. Opponents pointed to the proximity of the vote to the November 7, 2006 Congressional Election, and claimed that the vote (and a recent vote on the Federal Marriage Amendment
) was election year grandstanding.
, Chief Justice William H. Rehnquist wrote:
Rehnquist also argued that flag burning is "no essential part of any exposition of ideas" but rather "the equivalent of an inarticulate grunt or roar that, it seems fair to say, is most likely to be indulged in not to express any particular idea, but to antagonize others."
Quoting the famous lines, "Shoot if you must, this old grey head, but spare your country's flag," from the Civil War poem, "Barbara Fritchie," he said the flag was "the visible symbol embodying our Nation."
groups and First Amendment
defenders, point out the rarity of flag desecration in the United States, and assert that the proposed amendment is the epitome of "a solution in search of a problem." They also say that an amendment making such activity illegal would undermine the very principles for which the flag stands; jailing protesters of dissenting opinion—such as those who burn national flags—is common under authoritarian regimes.
Another argument stems from the fact that groups such as the American Legion
and the Boy Scouts of America
regularly burn flags as a way to dispose of them in a respectful manner in keeping with the United States Flag Code
. According to this argument, the amendment would single out people who committed the same acts with different intentions — thus, the amendment would regulate free thought, in contradiction with the First Amendment. Additionally, the question arises of what exactly constitutes a "flag
". Small paper flags attached to toothpicks represent a difficult borderline case. One might also wonder whether, for example, stamping out a chalk flag drawing by walking on it (or even drawing it on a surface where people regularly walk) is a form of desecration. It is further pointed out by some opponents that as flag desecration is done as a means of protest, it is an attention-getting act. Thus calling attention to it by prosecuting and jailing those responsible (and turning them into martyrs and political prisoners in the eyes of their supporters), would serve only to make flag desecration a more attractive means of protest, and therefore, increase the incidence of it.
In light of this argument, the framing of this Amendment as dealing with flag burning is misleading. As the Supreme Court has never declared it unconstitutional to ban the burning of flags, it is not clear that a Constitutional Amendment would be necessary to effect such a ban. Indeed, most localities have ordinances restricting the burning of any material, flags included. In Texas v. Johnson, the Supreme Court did not find that it is unconstitutional to ban the burning of flags, but that it is unconstitutional to ban "the expression of particular political views" through the burning of flags. Thus, this Amendment is aimed not at banning the burning of flags, but at banning the expression of particular political views through the burning of flags.
Furthermore, it must be understood that while this is presented as preventing flag burning, the term "desecration" refers to a much broader range of activities, and in fact can be applied to anything that is determined to be "disrespectful", including not only affirmative acts, but failures to act. Previous arrests under flag-desecration laws have been made for symbolic desecration such as failure to salute the flag, refusal to pledge allegiance
to the flag, and speaking contemptuously of the flag. Some Jehovah's Witnesses
, Muslim
s, and others feel that the pledge and salute elevate the flag above the status of God. Amending the Constitution to make flag desecration laws possible might also result in the punishment of members of these religious groups. For example, in the case of Minersville School District v. Gobitis
, 310 U.S. 586
(1940), the Supreme Court upheld the expulsion from school of children who refused to recite the pledge of allegiance on religious grounds. Thus, some American citizens fear one day being forced to salute the flag and being legally coerced into saying the pledge of allegiance if this amendment is enacted. However, this decision was overturned in West Virginia State Board of Education v. Barnette
.
In the majority opinion in Texas v. Johnson, Justice William J. Brennan wrote:
"We do not consecrate the flag by punishing its desecration, for in doing so we dilute the freedom that this cherished emblem represents."
published a report titled "Implementing a Flag-Desecration Amendment to the U.S. Constitution: An end to the controversy ... or a new beginning?". The report pointed out that the effect of the proposed amendment would likely be challenged on collateral matters in ways that will require the courts, and ultimately the U.S. Supreme Court, to parse the exact meaning of ambiguous terms contained therein. The focus of the report was on the meanings that would be assigned to the phrases, "physical desecration" and "flag of the United States."
The phrase "physical desecration" might be open to various interpretations concerning the uncertainty of the context of desecration. For example, uncertainty exists over whether the term includes the wearing of the flag as clothing, receiving a tattoo of the flag, or flying a flag upside-down. It is uncertain what can be interpreted as "physical desecration", as it may or may not require that the flag actually be physically damaged, or even merely made to appear damaged. It is also unclear whether "virtual
flag desecration" (which could be defined as an artistic depiction of flag desecration, a computerized simulation of flag desecration, or burning any object which has a flag on it) would be subject to the amendment. There is also a question over whether the perpetrator of such an act is required to have a specific intent to "desecrate" in order to be prosecuted. The Report of the 108th Congress, in proposing this amendment, stated:
This seems to suggest that the amendment will apply only to acts where the actor intends offense.
Since the amendment would allow prohibition against only "the flag of the United States," it could be construed as only applying to flags that are the property of the United States government, as opposed to private property. This language could also be interpreted as being limited to flags that meet the exact specifications for the United States flag laid out in federal law. It is unclear what effect the amendment would have with respect to former flags of the United States, such as the 48-star flag that preceded the admission of Alaska
and Hawaii
, or the original 13-star Betsy Ross flag
, or how far from the traditional definition of a flag a symbol could deviate (for example, having orange stripes instead of red) before falling out of the ambit of the amendment's jurisdiction.
The First Amendment Center concluded that the Supreme Court was likely to interpret this language narrowly, resulting in decisions that would not satisfy either proponents or opponents of the proposed amendment. Other possible interpretive issues were not addressed by the First Amendment Center report.
First, no scope is stated in the amendment. The Supreme Court has previously held that Congress may prohibit foreign acts that have an effect in the United States, in Hartford Fire Insurance Co. v. California
, 509 U.S. 764
(1993), and certainly the desecration of the flag on foreign soil would likely have the intended effect of offending United States citizens. However, the general rule is that a law does not apply outside the United States unless the language of the law expressly provides for such an application. It is therefore unclear whether Congress would be able to prescribe punishments for those who burn the flag of the United States in a foreign country.
Second, the amendment would empower Congress to act, but not the states. Congress might interpret the amendment as giving it the power to ratify state laws to this effect, as it does for interstate compact
s. The Court may find that the amendment has a preemptive effect
, acting as a bar to anyone other than Congress itself passing such regulations. If so, then cases involving flag desecration would likely be restricted to the U.S. federal courts, as are cases involving criminal violations of copyright law. These are the only criminal courts over which Congress has jurisdiction to permit federal crimes to be heard.
All of these questions would necessarily await the interpretative role of the courts, and such a process would likely require several years for the resolution of each issue.
Constitutional amendment
A constitutional amendment is a formal change to the text of the written constitution of a nation or state.Most constitutions require that amendments cannot be enacted unless they have passed a special procedure that is more stringent than that required of ordinary legislation...
to the United States Constitution
United States Constitution
The Constitution of the United States is the supreme law of the United States of America. It is the framework for the organization of the United States government and for the relationship of the federal government with the states, citizens, and all people within the United States.The first three...
that would allow the United States Congress
United States Congress
The United States Congress is the bicameral legislature of the federal government of the United States, consisting of the Senate and the House of Representatives. The Congress meets in the United States Capitol in Washington, D.C....
to statutorily prohibit expression of political views through the physical desecration
Desecration
Desecration is the act of depriving something of its sacred character, or the disrespectful or contemptuous treatment of that which is held to be sacred or holy by a group or individual.-Detail:...
of the flag of the United States
Flag of the United States
The national flag of the United States of America consists of thirteen equal horizontal stripes of red alternating with white, with a blue rectangle in the canton bearing fifty small, white, five-pointed stars arranged in nine offset horizontal rows of six stars alternating with rows...
. The concept of flag desecration continues to provoke a heated debate over protecting a national symbol, protecting free speech
Freedom of speech
Freedom of speech is the freedom to speak freely without censorship. The term freedom of expression is sometimes used synonymously, but includes any act of seeking, receiving and imparting information or ideas, regardless of the medium used...
, and protecting the liberty represented by a national symbol.
While the proposed amendment is most frequently referred to colloquially in terms of "flag burning," the language would permit the prohibition of all forms of flag desecration
Flag desecration
Flag desecration is a term applied to various acts that intentionally destroy, damage or mutilate a flag in public, most often a national flag. Often, such action is intended to make a political point against a country or its policies...
, which may take forms other than burning, such as using the flag for clothing or napkins.
The most recent attempt to adopt a flag desecration amendment failed in the United States Senate
United States Senate
The United States Senate is the upper house of the bicameral legislature of the United States, and together with the United States House of Representatives comprises the United States Congress. The composition and powers of the Senate are established in Article One of the U.S. Constitution. Each...
by one vote on June 27, 2006.
Proposed amendment
United States House of Representatives
The United States House of Representatives is one of the two Houses of the United States Congress, the bicameral legislature which also includes the Senate.The composition and powers of the House are established in Article One of the Constitution...
):
- The Congress shall have power to prohibit the physical desecration of the flag of the United States.
This proposed amendment was intended to give Congress the right to enact statutes criminalizing the burning or other desecration of the United States flag in a public protest. Proponents of legislation to proscribe flag burning argue that burning the flag is a very offensive gesture that deserves to be formally outlawed. Opponents maintain that giving Congress such power would essentially limit the principle of freedom of speech
Freedom of speech
Freedom of speech is the freedom to speak freely without censorship. The term freedom of expression is sometimes used synonymously, but includes any act of seeking, receiving and imparting information or ideas, regardless of the medium used...
— enshrined in the First Amendment to the United States Constitution
First Amendment to the United States Constitution
The First Amendment to the United States Constitution is part of the Bill of Rights. The amendment prohibits the making of any law respecting an establishment of religion, impeding the free exercise of religion, abridging the freedom of speech, infringing on the freedom of the press, interfering...
and symbolized by the flag itself.
The theories underlying these First Amendment principles include a robust national discourse about political and social ideas, individual self-realization, the search for truth, and speech as a "safety valve." These concepts are expounded in both the majority and dissenting opinions of the cases described below. There Justice William Joseph Brennan, Jr. noted that the "Principal function of free speech under our system of government is to invite dispute; it may indeed best serve its high purpose when it induces condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger."
Polls
A summer 2005 poll by the First Amendment CenterFirst Amendment Center
The First Amendment Center is an advocacy group in the United States that works to preserve and protect First Amendment freedoms through information and education. The Center serves as a forum for the study and exploration of free-expression issues, including freedom of speech, of the press and of...
found that 63% of Americans opposed amending the constitution to outlaw flag burning, up from 53% in 2004. A USA Today
USA Today
USA Today is a national American daily newspaper published by the Gannett Company. It was founded by Al Neuharth. The newspaper vies with The Wall Street Journal for the position of having the widest circulation of any newspaper in the United States, something it previously held since 2003...
/Gallup Poll in June 2006 found that 54% of Americans opposed a flag desecration amendment. A USA Today/Gallup Poll in June 2006 reached a different conclusion, with 56% supporting a constitutional amendment, but down from 63% favoring a flag burning amendment in Gallup's 1999 poll. Another poll conducted by CNN
CNN
Cable News Network is a U.S. cable news channel founded in 1980 by Ted Turner. Upon its launch, CNN was the first channel to provide 24-hour television news coverage, and the first all-news television channel in the United States...
in June 2006 found that 56% of Americans supported a flag desecration amendment.
Judicial and legislative history
The first federal Flag Protection ActFlag Protection Act
Reacting to protests during the Vietnam War era, the United States 90th Congress enacted Public Law 90-381 , later codified as 18 U.S.C. 700, et. seq., and better known as the Flag Protection Act of 1968. It was an expansion to nationwide applicability of a 1947 law previously restricted only to...
was passed by Congress in 1968 in response to protest burnings of the flag at demonstrations against the Vietnam War
Vietnam War
The Vietnam War was a Cold War-era military conflict that occurred in Vietnam, Laos, and Cambodia from 1 November 1955 to the fall of Saigon on 30 April 1975. This war followed the First Indochina War and was fought between North Vietnam, supported by its communist allies, and the government of...
. Over time, 48 of the 50 U.S. states also enacted similar flag protection laws. All of these statutes were overturned by the Supreme Court of the United States
Supreme Court of the United States
The Supreme Court of the United States is the highest court in the United States. It has ultimate appellate jurisdiction over all state and federal courts, and original jurisdiction over a small range of cases...
by a 5-4 vote in the case Texas v. Johnson
Texas v. Johnson
Texas v. Johnson, , was an important decision by the Supreme Court of the United States that invalidated prohibitions on desecrating the American flag enforced in 48 of the 50 states. Justice William Brennan wrote for a five-justice majority in holding that the defendant's act of flag burning was...
, 491 U.S. 397
Case citation
Case citation is the system used in many countries to identify the decisions in past court cases, either in special series of books called reporters or law reports, or in a 'neutral' form which will identify a decision wherever it was reported...
(1989) as unconstitutional restrictions of public expression. Congress responded to the Johnson decision by passing a Flag Protection Act, only to see the Supreme Court reaffirm Johnson by the same 5-4 majority in United States v. Eichman
United States v. Eichman
United States v. Eichman, 496 U.S. 310 was a United States Supreme Court case that invalidated a federal law against flag desecration as violative of free speech under the First Amendment to the Constitution. It was argued together with the case United States v...
, 496 U.S. 310
Case citation
Case citation is the system used in many countries to identify the decisions in past court cases, either in special series of books called reporters or law reports, or in a 'neutral' form which will identify a decision wherever it was reported...
(1990), declaring that flag burning was constitutionally-protected free speech.
In both cases, William J. Brennan wrote the majority opinion, joined by Thurgood Marshall
Thurgood Marshall
Thurgood Marshall was an Associate Justice of the United States Supreme Court, serving from October 1967 until October 1991...
, Harry Blackmun
Harry Blackmun
Harold Andrew Blackmun was an Associate Justice of the Supreme Court of the United States from 1970 until 1994. He is best known as the author of Roe v. Wade.- Early years and professional career :...
, Antonin Scalia
Antonin Scalia
Antonin Gregory Scalia is an American jurist who serves as an Associate Justice of the Supreme Court of the United States. As the longest-serving justice on the Court, Scalia is the Senior Associate Justice...
, and Anthony Kennedy
Anthony Kennedy
Anthony McLeod Kennedy is an Associate Justice of the United States Supreme Court, having been appointed by President Ronald Reagan in 1988. Since the retirement of Sandra Day O'Connor, Kennedy has often been the swing vote on many of the Court's politically charged 5–4 decisions...
(Kennedy also authored a separate concurrence in Johnson), and the dissenters in both cases were then-Chief Justice William Rehnquist
William Rehnquist
William Hubbs Rehnquist was an American lawyer, jurist, and political figure who served as an Associate Justice on the Supreme Court of the United States and later as the 16th Chief Justice of the United States...
(who authored a dissent in Johnson), and Justices John Paul Stevens
John Paul Stevens
John Paul Stevens served as an Associate Justice of the Supreme Court of the United States from December 19, 1975 until his retirement on June 29, 2010. At the time of his retirement, he was the oldest member of the Court and the third-longest serving justice in the Court's history...
(who authored dissents in both cases), Byron White
Byron White
Byron Raymond "Whizzer" White won fame both as a football halfback and as an associate justice of the Supreme Court of the United States. Appointed to the court by President John F. Kennedy in 1962, he served until his retirement in 1993...
and Sandra Day O'Connor
Sandra Day O'Connor
Sandra Day O'Connor is an American jurist who was the first female member of the Supreme Court of the United States. She served as an Associate Justice from 1981 until her retirement from the Court in 2006. O'Connor was appointed by President Ronald Reagan in 1981...
.
The decisions were very controversial and have prompted Congress to consider the only remaining legal avenue to enact flag protection statutes — a constitutional amendment. Each Congress since the Johnson decision has considered creating a flag desecration amendment. From 1995 to 2005, beginning with the 104th Congress
104th United States Congress
The One Hundred Fourth United States Congress was a meeting of the legislative branch of the United States federal government, composed of the United States Senate and the United States House of Representatives. It met in Washington, DC from January 3, 1995 to January 3, 1997, during the third and...
, the proposed amendment was approved biennially by the two-thirds majority necessary in the U.S. House of Representatives, but it consistently failed to achieve the same constitutionally-required super-majority vote in the U.S. Senate (during some sessions, the proposed amendment did not even come to a vote in the Senate before the expiration of the Congress' term). The last time it was considered, in the 109th Congress, the Amendment failed by one vote in the Senate.
Congressional votes
During each term of Congress from 1995 to 2005, the proposed amendment was passed by the House of Representatives, but not the Senate, falling four votes short on two occasions in the upper body. As approved by the House of Representatives each time, the joint resolutions called for ratification by state legislatures—of which a minimum of 38 state legislative approvals would be required (three-fourths of the 50 states) within a period of seven years following its proposal by both houses of Congress. As can be seen by the votes in the House of Representatives, support for the amendment appears to be slipping with only 286 yes votes during the 109th Congress109th United States Congress
The One Hundred Ninth United States Congress was the legislative branch of the United States, composed of the United States Senate and the United States House of Representatives, from January 3, 2005 to January 3, 2007, during the fifth and sixth years of George W. Bush's presidency. House members...
in 2005 in contrast to the 312 yes votes a decade earlier during the 104th.
The chronology of the Congress's action upon the flag-desecration amendment runs over a period of more than ten years:
| Congress | Resolution(s) | Vote date | Yes | No | Link |
|---|---|---|---|---|---|
| 104th Congress 104th United States Congress The One Hundred Fourth United States Congress was a meeting of the legislative branch of the United States federal government, composed of the United States Senate and the United States House of Representatives. It met in Washington, DC from January 3, 1995 to January 3, 1997, during the third and... |
House Joint Resolution 79 | June 28, 1995 | 312 | 120 | http://clerk.house.gov/evs/1995/roll431.xml |
| Senate Joint Resolution 31 | December 12, 1995 | 63 | 36 | http://www.senate.gov/legislative/LIS/roll_call_lists/roll_call_vote_cfm.cfm?congress=104&session=1&vote=00600 | |
| 105th Congress 105th United States Congress The One Hundred Fifth United States Congress was a meeting of the legislative branch of the United States federal government, composed of the United States Senate and the United States House of Representatives. It met in Washington, DC from January 3, 1997 to January 3, 1999, during the fifth and... |
House Joint Resolution 54 | June 12, 1997 | 310 | 114 | http://clerk.house.gov/evs/1997/roll202.xml |
| 106th Congress 106th United States Congress The One Hundred Sixth United States Congress was a meeting of the legislative branch of the United States federal government, composed of the United States Senate and the United States House of Representatives. It met in Washington, DC from January 3, 1999 to January 3, 2001, during the last two... |
House Joint Resolution 33 | June 24, 1999 | 305 | 124 | http://clerk.house.gov/evs/1999/roll252.xml |
| Senate Joint Resolution 14 | March 29, 2000 | 63 | 37 | http://www.senate.gov/legislative/LIS/roll_call_lists/roll_call_vote_cfm.cfm?congress=106&session=2&vote=00048 | |
| 107th Congress 107th United States Congress The One Hundred Seventh United States Congress was a meeting of the legislative branch of the United States federal government, composed of the United States Senate and the United States House of Representatives. It met in Washington, D.C. from January 3, 2001 to January 3, 2003, during the final... |
House Joint Resolution 36 | July 17, 2001 | 298 | 125 | http://clerk.house.gov/evs/2001/roll232.xml |
| 108th Congress 108th United States Congress The One Hundred Eighth United States Congress was the legislative branch of the United States federal government, composed of the United States Senate and the United States House of Representatives from January 3, 2003 to January 3, 2005, during the third and fourth years of George W. Bush's... |
House Joint Resolution 4 | June 3, 2003 | 300 | 125 | http://clerk.house.gov/evs/2003/roll234.xml |
| 109th Congress 109th United States Congress The One Hundred Ninth United States Congress was the legislative branch of the United States, composed of the United States Senate and the United States House of Representatives, from January 3, 2005 to January 3, 2007, during the fifth and sixth years of George W. Bush's presidency. House members... |
House Joint Resolution 10 | June 22, 2005 | 286 | 130 | http://clerk.house.gov/evs/2005/roll296.xml |
| Senate Joint Resolution 12 | June 27, 2006 | 66 | 34 | http://www.senate.gov/legislative/LIS/roll_call_lists/roll_call_vote_cfm.cfm?congress=109&session=2&vote=00189 |
In order to be added to the Constitution, it must likewise be approved by a two-thirds vote of those present and voting in the 100-member Senate, as well as be ratified by at least three-fourths of the 50 state legislatures. Senators had until the end of 2006 to take action on H.J. Res. 10 during the remainder of the 109th Congress. On March 7, 2006, Senate Majority Leader Bill Frist
Bill Frist
William Harrison "Bill" Frist, Sr. is an American physician, businessman, and politician. He began his career as an heir and major stockholder to the for-profit hospital chain of Hospital Corporation of America. Frist later served two terms as a Republican United States Senator representing...
announced that he would bring the bill up for consideration in June 2006. On Monday, June 26, 2006, the Senate began debate on the proposed amendment. The following day, the amendment, sponsored by Senator Orrin Hatch
Orrin Hatch
Orrin Grant Hatch is the senior United States Senator for Utah and is a member of the Republican Party. Hatch served as the chairman or ranking member of the Senate Judiciary Committee from 1993 to 2005...
, fell one vote short in the Senate, with 66 in support and 34 opposed. The Republican nay votes were from Bob Bennett
Robert Foster Bennett
Robert Foster "Bob" Bennett is a former United States Senator from Utah and a member of the Republican Party. In 2006, Bennett was tapped to serve on the Senate Republican Leadership Team as Counsel to the Minority Leader, United States Senator Mitch McConnell...
(UT), Lincoln Chafee
Lincoln Chafee
Lincoln Davenport Chafee is an American politician who has been the 74th Governor of Rhode Island since January 2011. Prior to his election as governor, Chafee served in the United States Senate as a Republican from 1999 until losing his Senate re-election bid in 2006 to Democrat Sheldon...
(RI), and Mitch McConnell
Mitch McConnell
Addison Mitchell "Mitch" McConnell, Jr. is the senior United States Senator from Kentucky and the Republican Minority Leader.- Early life, education, and military service :...
(KY). The vote on Senator Richard Durbin's alternative amendment, which would have given Congress the power to ban flag desecration intended to intimidate or breach peace on federal land, was 36-64. Opponents pointed to the proximity of the vote to the November 7, 2006 Congressional Election, and claimed that the vote (and a recent vote on the Federal Marriage Amendment
Federal Marriage Amendment
The Federal Marriage Amendment H.J. Res. 56 was a proposed amendment to the United States Constitution which would have limited marriage in the United States to unions of one man and one woman...
) was election year grandstanding.
Arguments for the amendment
Proponents of the amendment argue that protecting the flag is necessary because of the uniquely important nature of the flag. They argue the flag is the most revered symbol of the United States itself, and thus burning it is a profoundly offensive gesture towards all its citizens. In his dissenting opinion in Texas v. JohnsonTexas v. Johnson
Texas v. Johnson, , was an important decision by the Supreme Court of the United States that invalidated prohibitions on desecrating the American flag enforced in 48 of the 50 states. Justice William Brennan wrote for a five-justice majority in holding that the defendant's act of flag burning was...
, Chief Justice William H. Rehnquist wrote:
"The American flag, then, throughout more than 200 years of our history, has come to be the visible symbol embodying our Nation. It does not represent the views of any particular political party, and it does not represent any particular political philosophy. The flag is not simply another 'idea' or 'point of view' competing for recognition in the marketplace of ideas. Millions and millions of Americans regard it with an almost mystical reverence regardless of what sort of social, political, or philosophical beliefs they may have. I cannot agree that the First Amendment invalidates the Act of Congress, and the laws of 48 of the 50 States, which make criminal the public burning of the flag."
Rehnquist also argued that flag burning is "no essential part of any exposition of ideas" but rather "the equivalent of an inarticulate grunt or roar that, it seems fair to say, is most likely to be indulged in not to express any particular idea, but to antagonize others."
Quoting the famous lines, "Shoot if you must, this old grey head, but spare your country's flag," from the Civil War poem, "Barbara Fritchie," he said the flag was "the visible symbol embodying our Nation."
Arguments against the amendment
Opponents of the flag desecration proposal, including civil libertiesCivil liberties
Civil liberties are rights and freedoms that provide an individual specific rights such as the freedom from slavery and forced labour, freedom from torture and death, the right to liberty and security, right to a fair trial, the right to defend one's self, the right to own and bear arms, the right...
groups and First Amendment
First Amendment to the United States Constitution
The First Amendment to the United States Constitution is part of the Bill of Rights. The amendment prohibits the making of any law respecting an establishment of religion, impeding the free exercise of religion, abridging the freedom of speech, infringing on the freedom of the press, interfering...
defenders, point out the rarity of flag desecration in the United States, and assert that the proposed amendment is the epitome of "a solution in search of a problem." They also say that an amendment making such activity illegal would undermine the very principles for which the flag stands; jailing protesters of dissenting opinion—such as those who burn national flags—is common under authoritarian regimes.
Another argument stems from the fact that groups such as the American Legion
American Legion
The American Legion is a mutual-aid organization of veterans of the United States armed forces chartered by the United States Congress. It was founded to benefit those veterans who served during a wartime period as defined by Congress...
and the Boy Scouts of America
Boy Scouts of America
The Boy Scouts of America is one of the largest youth organizations in the United States, with over 4.5 million youth members in its age-related divisions...
regularly burn flags as a way to dispose of them in a respectful manner in keeping with the United States Flag Code
United States Flag Code
The United States Flag Code establishes advisory rules for display and care of the flag of the United States. It is Chapter 1 of Title 4 of the United States Code . This is a U.S. federal law, but there is no penalty for failure to comply with it and it is not widely enforced—indeed, the U.S...
. According to this argument, the amendment would single out people who committed the same acts with different intentions — thus, the amendment would regulate free thought, in contradiction with the First Amendment. Additionally, the question arises of what exactly constitutes a "flag
Flag
A flag is a piece of fabric with a distinctive design that is usually rectangular and used as a symbol, as a signaling device, or decoration. The term flag is also used to refer to the graphic design employed by a flag, or to its depiction in another medium.The first flags were used to assist...
". Small paper flags attached to toothpicks represent a difficult borderline case. One might also wonder whether, for example, stamping out a chalk flag drawing by walking on it (or even drawing it on a surface where people regularly walk) is a form of desecration. It is further pointed out by some opponents that as flag desecration is done as a means of protest, it is an attention-getting act. Thus calling attention to it by prosecuting and jailing those responsible (and turning them into martyrs and political prisoners in the eyes of their supporters), would serve only to make flag desecration a more attractive means of protest, and therefore, increase the incidence of it.
In light of this argument, the framing of this Amendment as dealing with flag burning is misleading. As the Supreme Court has never declared it unconstitutional to ban the burning of flags, it is not clear that a Constitutional Amendment would be necessary to effect such a ban. Indeed, most localities have ordinances restricting the burning of any material, flags included. In Texas v. Johnson, the Supreme Court did not find that it is unconstitutional to ban the burning of flags, but that it is unconstitutional to ban "the expression of particular political views" through the burning of flags. Thus, this Amendment is aimed not at banning the burning of flags, but at banning the expression of particular political views through the burning of flags.
Furthermore, it must be understood that while this is presented as preventing flag burning, the term "desecration" refers to a much broader range of activities, and in fact can be applied to anything that is determined to be "disrespectful", including not only affirmative acts, but failures to act. Previous arrests under flag-desecration laws have been made for symbolic desecration such as failure to salute the flag, refusal to pledge allegiance
Pledge of Allegiance
The Pledge of Allegiance of the United States is an expression of loyalty to the federal flag and the republic of the United States of America, originally composed by Christian Socialist Francis Bellamy in 1892 and formally adopted by Congress as the pledge in 1942...
to the flag, and speaking contemptuously of the flag. Some Jehovah's Witnesses
Jehovah's Witnesses
Jehovah's Witnesses is a millenarian restorationist Christian denomination with nontrinitarian beliefs distinct from mainstream Christianity. The religion reports worldwide membership of over 7 million adherents involved in evangelism, convention attendance of over 12 million, and annual...
, Muslim
Muslim
A Muslim, also spelled Moslem, is an adherent of Islam, a monotheistic, Abrahamic religion based on the Quran, which Muslims consider the verbatim word of God as revealed to prophet Muhammad. "Muslim" is the Arabic term for "submitter" .Muslims believe that God is one and incomparable...
s, and others feel that the pledge and salute elevate the flag above the status of God. Amending the Constitution to make flag desecration laws possible might also result in the punishment of members of these religious groups. For example, in the case of Minersville School District v. Gobitis
Minersville School District v. Gobitis
Minersville School District v. Gobitis, , was a decision by the Supreme Court of the United States involving the religious rights of public school students under the First Amendment to the United States Constitution...
, 310 U.S. 586
Case citation
Case citation is the system used in many countries to identify the decisions in past court cases, either in special series of books called reporters or law reports, or in a 'neutral' form which will identify a decision wherever it was reported...
(1940), the Supreme Court upheld the expulsion from school of children who refused to recite the pledge of allegiance on religious grounds. Thus, some American citizens fear one day being forced to salute the flag and being legally coerced into saying the pledge of allegiance if this amendment is enacted. However, this decision was overturned in West Virginia State Board of Education v. Barnette
West Virginia State Board of Education v. Barnette
West Virginia State Board of Education v. Barnette, 319 U.S. 624 , is a decision by the Supreme Court of the United States that held that the Free Speech Clause of the First Amendment to the United States Constitution protected students from being forced to salute the American flag and say the...
.
In the majority opinion in Texas v. Johnson, Justice William J. Brennan wrote:
"We do not consecrate the flag by punishing its desecration, for in doing so we dilute the freedom that this cherished emblem represents."
Potential interpretations of the amendment
In 2005, the First Amendment CenterFirst Amendment Center
The First Amendment Center is an advocacy group in the United States that works to preserve and protect First Amendment freedoms through information and education. The Center serves as a forum for the study and exploration of free-expression issues, including freedom of speech, of the press and of...
published a report titled "Implementing a Flag-Desecration Amendment to the U.S. Constitution: An end to the controversy ... or a new beginning?". The report pointed out that the effect of the proposed amendment would likely be challenged on collateral matters in ways that will require the courts, and ultimately the U.S. Supreme Court, to parse the exact meaning of ambiguous terms contained therein. The focus of the report was on the meanings that would be assigned to the phrases, "physical desecration" and "flag of the United States."
Virtual
The term virtual is a concept applied in many fields with somewhat differing connotations, and also, differing denotations.The term has been defined in philosophy as "that which is not real" but may display the salient qualities of the real....
flag desecration" (which could be defined as an artistic depiction of flag desecration, a computerized simulation of flag desecration, or burning any object which has a flag on it) would be subject to the amendment. There is also a question over whether the perpetrator of such an act is required to have a specific intent to "desecrate" in order to be prosecuted. The Report of the 108th Congress, in proposing this amendment, stated:
"...'desecrate' means deface, damage, or otherwise physically mistreat in a way that the actor knows will seriously offend one or more persons likely to observe or discover his action..."
This seems to suggest that the amendment will apply only to acts where the actor intends offense.
Since the amendment would allow prohibition against only "the flag of the United States," it could be construed as only applying to flags that are the property of the United States government, as opposed to private property. This language could also be interpreted as being limited to flags that meet the exact specifications for the United States flag laid out in federal law. It is unclear what effect the amendment would have with respect to former flags of the United States, such as the 48-star flag that preceded the admission of Alaska
Alaska
Alaska is the largest state in the United States by area. It is situated in the northwest extremity of the North American continent, with Canada to the east, the Arctic Ocean to the north, and the Pacific Ocean to the west and south, with Russia further west across the Bering Strait...
and Hawaii
Hawaii
Hawaii is the newest of the 50 U.S. states , and is the only U.S. state made up entirely of islands. It is the northernmost island group in Polynesia, occupying most of an archipelago in the central Pacific Ocean, southwest of the continental United States, southeast of Japan, and northeast of...
, or the original 13-star Betsy Ross flag
Betsy Ross flag
The Betsy Ross flag is an early design of the flag of the United States, popularly attributed to Betsy Ross, using the common motifs of alternating red-and-white striped field with five-pointed stars in a blue canton. The flag was designed during the American Revolution and features 13 stars to...
, or how far from the traditional definition of a flag a symbol could deviate (for example, having orange stripes instead of red) before falling out of the ambit of the amendment's jurisdiction.
The First Amendment Center concluded that the Supreme Court was likely to interpret this language narrowly, resulting in decisions that would not satisfy either proponents or opponents of the proposed amendment. Other possible interpretive issues were not addressed by the First Amendment Center report.
First, no scope is stated in the amendment. The Supreme Court has previously held that Congress may prohibit foreign acts that have an effect in the United States, in Hartford Fire Insurance Co. v. California
Hartford Fire Insurance Co. v. California
Hartford Fire Insurance Co. v. California, 113 S.Ct. 2891 , was a controversial United States Supreme Court case which held that foreign companies acting in foreign countries could nevertheless be held liable for violations of the Sherman Antitrust Act if they conspired to restrain trade within the...
, 509 U.S. 764
Case citation
Case citation is the system used in many countries to identify the decisions in past court cases, either in special series of books called reporters or law reports, or in a 'neutral' form which will identify a decision wherever it was reported...
(1993), and certainly the desecration of the flag on foreign soil would likely have the intended effect of offending United States citizens. However, the general rule is that a law does not apply outside the United States unless the language of the law expressly provides for such an application. It is therefore unclear whether Congress would be able to prescribe punishments for those who burn the flag of the United States in a foreign country.
Second, the amendment would empower Congress to act, but not the states. Congress might interpret the amendment as giving it the power to ratify state laws to this effect, as it does for interstate compact
Interstate compact
An interstate compact is an agreement between two or more states of the United States of America. Article I, Section 10 of the United States Constitution provides that "no state shall enter into an agreement or compact with another state" without the consent of Congress...
s. The Court may find that the amendment has a preemptive effect
Federal preemption
Federal preemption refers to the invalidation of US state law when it conflicts with Federal law.-Constitutional basis:According to the Supremacy Clause of the United States Constitution,...
, acting as a bar to anyone other than Congress itself passing such regulations. If so, then cases involving flag desecration would likely be restricted to the U.S. federal courts, as are cases involving criminal violations of copyright law. These are the only criminal courts over which Congress has jurisdiction to permit federal crimes to be heard.
All of these questions would necessarily await the interpretative role of the courts, and such a process would likely require several years for the resolution of each issue.
Popular culture
- The SimpsonsThe SimpsonsThe Simpsons is an American animated sitcom created by Matt Groening for the Fox Broadcasting Company. The series is a satirical parody of a middle class American lifestyle epitomized by its family of the same name, which consists of Homer, Marge, Bart, Lisa and Maggie...
episode "The Day the Violence DiedThe Day the Violence Died"The Day the Violence Died" is the eighteenth episode of The Simpsons seventh season and originally aired on March 17, 1996. It was written by John Swartzwelder and directed by Wesley Archer. Kirk Douglas guest stars as Chester J...
" has a clip titled "I'm an Amendment to Be" where an amendment banning flag burning sings that the problem lies with "a lot of flag-burners who have got too much freedom" and that he wants to "make it legal for policemen to beat them," as there are "limits to our liberty".
See also
- Flag desecrationFlag desecrationFlag desecration is a term applied to various acts that intentionally destroy, damage or mutilate a flag in public, most often a national flag. Often, such action is intended to make a political point against a country or its policies...
- Street v. New YorkStreet v. New YorkIn Street v. New York, 394 U.S. 576 , the United States Supreme Court held that a New York state law making it a crime "publicly [to] mutilate, deface, defile, or defy, trample upon, or cast contempt upon either by words or act [any flag of the United States]" was, in part, unconstitutional because...
- Texas v. JohnsonTexas v. JohnsonTexas v. Johnson, , was an important decision by the Supreme Court of the United States that invalidated prohibitions on desecrating the American flag enforced in 48 of the 50 states. Justice William Brennan wrote for a five-justice majority in holding that the defendant's act of flag burning was...
- Street v. New York
- Flag Protection ActFlag Protection ActReacting to protests during the Vietnam War era, the United States 90th Congress enacted Public Law 90-381 , later codified as 18 U.S.C. 700, et. seq., and better known as the Flag Protection Act of 1968. It was an expansion to nationwide applicability of a 1947 law previously restricted only to...
- United States v. EichmanUnited States v. EichmanUnited States v. Eichman, 496 U.S. 310 was a United States Supreme Court case that invalidated a federal law against flag desecration as violative of free speech under the First Amendment to the Constitution. It was argued together with the case United States v...
- United States v. Eichman
- Censorship in the United StatesCensorship in the United StatesIn general, censorship in the United States, which involves the suppression of speech or other public communication, raises issues of freedom of speech, which is constitutionally protected by the First Amendment to the United States Constitution....
- Freedom of speech in the United StatesFreedom of speech in the United StatesFreedom of speech in the United States is protected by the First Amendment to the United States Constitution and by many state constitutions and state and federal laws, with the exception of obscenity, defamation, incitement to riot, and fighting words, as well as harassment, privileged...
External links
- Text of the proposed Amendment from the Library of Congress
- Committee Report on the Flag Protection Constitutional Amendment
- A History of Flag-Burning Laws. A history of U.S. laws banning flag burning and other forms of flag desecration, from 1897 to the proposed Flag Desecration Amendment.
- On Language: Desecration. Column in the New York TimesThe New York TimesThe New York Times is an American daily newspaper founded and continuously published in New York City since 1851. The New York Times has won 106 Pulitzer Prizes, the most of any news organization...
(July 31, 2005) by William SafireWilliam SafireWilliam Lewis Safire was an American author, columnist, journalist and presidential speechwriter....
on the use of the word desecration in the proposed amendment. - Cracking the Flag-Burning Amendment
- A Brief History of Flag Burning
- SourceWatch article on Citizens Flag Alliance