This distresses some who feel the flag should
be treated with the utmost respect.
The ritualized burning of the American flag
is considered an appropriate way to dispose of a damaged
or soiled flag. The American Legion and Boy Scouts burn
thousands of flags every year in respectful retirement ceremonies.
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 provoke a heated debate over protecting a national
symbol and protecting 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.
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)
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.[1]
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.[2] 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.
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.
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.[9][10] On March 7,
2006, Senate Majority Leader Bill Frist announced that he
would bring the bill up for consideration in June 2006.
[11]
A summer 2005 poll found that 63% of Americans
opposed amending the constitution to outlaw flag burning,
up from 53% in 2004.[12]
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."
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."
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, 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:
