Flag Desecration Amendment

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The Flag Desecration Amendment, often referred to as the flag burning amendment, is a proposed amendment to the United States Constitution that would allow the United States Congress to statutorily proscribe the physical desecration of the flag of the United States. The concept of flag burning continues to provoked a heated debate over the protecting a national symbol and protecting the free speech.

While the proposed amendment was most frequently referred to colloquially in terms of flag burning, the language would have permitted the prohibition of all forms of flag desecration, which may take forms other than burning. Conversely, the amendment would not have prohibited the burning of the flag in accordance with the United States Flag Code, which indicates that the preferred way to destroy a damaged flag is by burning it respectfully.

Image:Flag of the United States.svg

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The proposed amendment

The full text of the amendment (passed several times by the U.S. House of Representatives):

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 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.

Principal 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 Brennan 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." 491 US 397, 408 (1989)

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Judicial and legislative history

The first federal Flag Protection Act was passed by Congress in 1968 in response to protest burnings of the flag at demonstrations against the Vietnam War.Template:Ref Over time, 48 of the 50 U.S. states also enacted similar flag protection laws as well. 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.

After the Johnson decision, Congress quickly passed a new Flag Protection Act, which was also struck down by the Supreme Court the following year by the same 5-4 majority in the case U.S. v. Eichman, 496 U.S. 310 (1990). The Court decided (5-3) that flag burning constitutionally protected expression.

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. Since 1995, beginning with the 104th Congress, the proposed amendment has been approved biennially by the two-thirds majority necessary in the U.S. House of Representatives, but it has consistently failed to achieve the same, necessary 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 Congress' term).

Starting in 1989, the legislatures of all 50 states have passed non-binding resolutions memorializing Congress to propose the flag-desecration amendment to the states for ratification, with Vermont being the most recent example in 2002.Template:Ref Additionally, countless local governments and civic organizations have sent non-binding petitions to Congress asking that this amendment be proposed for ratification.

In both the Johnson and Eichman decisions, the statutes were struck down by a block composed of Justices William J. Brennan, Thurgood Marshall, Harry A. Blackmun, Antonin Scalia, and Anthony Kennedy. The dissenters in both cases were Chief Justice William H. Rehnquist , and Justices John Paul Stevens, Byron R. White and Sandra Day O'Connor.

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Congressional votes

During each term of Congress since 1995, the proposed amendment has passed 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 have 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 "yea" votes during the 109th Congress in 2005 in contrast to the 312 "yea" votes a decade earlier during the 104th.

The chronology of the House of Representatives' action upon the flag-desecration amendment runs over a period of more than ten years:

During this current 109th Congress, the amendment (in the form of House Joint Resolution No. 10) passed with 286 yeas, 130 nays, and 18 "not voting" in the House of Representatives on June 22, 2005. In order to be added to the Constitution, it must likewise be approved by a vote of at least two-thirds of the 100-member Senate, as well as be ratified by at least three-fourths of the 50 state legislatures. Senators have until the end of 2006 to take action upon H.J. Res. 10 during the remainder of the 109th Congress.Template:Ref Template:Ref On March 7, 2006, Senate Majority Leader Bill Frist announced that he would bring the bill up for consideration in June 2006. Template:Ref

A summer 2005 poll found that 63% of Americans opposed amending the constitution to outlaw flag burning, up from 53% in 2004.[1]

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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, and thus burning it is a profoundly offensive gesture towards all its Citizens. In his dissenting opinion in Texas v. Johnson, late 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 Frietchie," he said the flag was "the visible symbol embodying our Nation."

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Arguments against the amendment

The proposed amendment has met with resistance from civil liberties groups and first amendment defenders. Opponents of the flag desecration proposal 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 is 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. The amendment would single out people who are committing the same acts with different thoughts in their heads. Thus, the government would be trying to regulate free thought, certainly not keeping with the First Amendment. Opponents also 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".

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."

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Potential interpretations of the amendment

If enacted, the effect of the amendment will 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.

First, the amendment would empower Congress to act, but not the states. However, Congress might interpret this as giving it the power to ratify state laws to this effect, as it does for interstate compacts. Since no scope is stated in the amendment, it is also unclear whether Congress would be able to prescribe punishments for those who burn the flag of the United States in a foreign country. 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.

Second, the phrase "physical desecration" might be open to various interpretations concerning the uncertainty of the context of descration. For example, uncertainty exists over whether the term includes the wearing of the flag as clothing, urinating on the flag, 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 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 only apply to acts where the actor intends offense.

Finally, since the amendment would only allow prohibition against "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 protection.

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.

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References

  1. Template:Note "Flag Protection: A Brief History and Summary of Recent Supreme Court Decisions and Proposed Constitutional Amendment", by John Luckey (PDF).
  2. Template:Note Citizens Flag Alliance, http://www.cfa-inc.org/
  3. Template:Note "Bill Summary & Status for the 104th Congress", Library of Congress: H.J. Res. 79, S.J. Res 31.
  4. Template:Note "Bill Summary & Status for the 105th Congress", Library of Congress: H.J. Res. 54.
  5. Template:Note "Bill Summary & Status for the 106th Congress", Library of Congress: H.J. Res 33, S.J. Res. 14.
  6. Template:Note "Bill Summary & Status for the 107th Congress", Library of Congress: H.J. Res. 36.
  7. Template:Note "Bill Summary & Status for the 108th Congress", Library of Congress: H.J. Res 4
  8. Template:Note "Bill Summary & Status for the 109th Congress", Library of Congress: H.J. Res. 10
  9. Template:Note "House Approves Move to Outlaw Flag Burning", June 22, 2005, Associated Press via San Francisco Chronicle
  10. Template:Note [2]
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See also

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External links

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