House Approves Flag-Burning Amendment
Once again, the House has passed an amendment to the Constitution to ban freedom of expression in the form of burning the American flag. (Unless done to show respect for a frayed, old flag–in which case it’s encouraged.)
The House on Wednesday approved a constitutional amendment that would give Congress the power to ban desecration of the American flag, a measure that for the first time stands a chance of passing the Senate as well. By a 286-130 vote Ã¢€” eight more than needed Ã¢€” House members approved the amendment after a debate over whether such a ban would uphold or run afoul of the Constitution’s free-speech protections. Approval of two-thirds of the lawmakers present was required to send the bill on to the Senate, where activists on both sides say it stands the best chance of passage in years. If the amendment is approved in that chamber by a two-thirds vote, it would then move to the states for ratification.
Supporters said the measure reflected patriotism that deepened after the Sept. 11, 2001 terrorist attacks, and they accused detractors of being out of touch with public sentiment. “Ask the men and women who stood on top of the (World) Trade Center,” said Rep. Randy (Duke) Cunningham, R-Calif. “Ask them and they will tell you: pass this amendment.” But Rep. Jerrold Nadler (news, bio, voting record), D-N.Y., said, “If the flag needs protection at all, it needs protection from members of Congress who value the symbol more than the freedoms that the flag represents.”
The measure was designed to overturn a 1989 decision by the Supreme Court, which ruled 5-4 that flag burning was a protected free-speech right. That ruling threw out a 1968 federal statute and flag-protection laws in 48 states. The law was a response to anti-Vietnam war protesters setting fire to the American flag at their demonstrations.
The proposed one-line amendment to the Constitution reads, “The Congress shall have power to prohibit the physical desecration of the flag of the United States.” For the language to be added to the Constitution, it must be approved not only by two-thirds of each chamber but also by 38 states within seven years.
Each time the proposed amendment has come to the House floor, it has reached the required two-thirds majority. But the measure has always died in the Senate, falling short of the 67 votes needed. The last time the Senate took up the amendment was in 2000, when it failed 63-37. But last year’s elections gave Republicans a four-seat pickup in the Senate, and now proponents and critics alike say the amendment stands within a vote or two of reaching the two-thirds requirement in that chamber. By most counts, 65 current senators have voted for or said they intend to support the amendment, two shy of the crucial tally. More than a quarter of current senators were not members of that chamber during the last vote.
The Senate is expected to consider the measure after the July 4th holiday.
While I have nothing but contempt for Americans who show their displeasure with U.S. public policy by burning the American flag, amending the Constitution to prohibit this activity is absurd. It’s a cheap political stunt but one that does nothing to make the country stronger or safer. If enacted, however, it would make it slightly less free.
Update (1659): Steven Taylor adds,
[A]mendments to the Constitution that limit the government are fine, and indeed, my favorite kind. Amendments designed to limit the actions of citizens that are otherwise unharmful to other citizens, strikes me as a bad idea.
Quite so. Indeed, the only such amendment passed was the 18th, which instituted Prohibition on the sale and consumption of alcoholic beverages. It didn’t work out so well.