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.)

House Approves Flag-Burning Amendment (AP)

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 — eight more than needed — 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.

FILED UNDER: Uncategorized, , , , ,
James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College. He's a former Army officer and Desert Storm veteran. Views expressed here are his own. Follow James on Twitter @DrJJoyner.


  1. carpeicthus says:

    That about sums it up.

  2. McGehee says:

    I still don’t know what political expression flag-burning represents. It’s inarticulate emotion, nothing more, and certainly isn’t persuasive.

    If what somebody has to say can’t be expressed more effectively by means other than burning the flag, maybe it isn’t worth saying. I really don’t see what harm this amendment would do to free speech — even if there were a chance in hell of it ever being ratified.

  3. James Joyner says:

    Kevin: The mere fact that people want to pass laws against it–let alone amend the Constitution–seems to demonstrate how powerful this form of symbolic speech is.

  4. hln says:

    Can we amend the constitution to ban amendments based on emotion?


  5. Can we amend the constitution to ban insulting moms and apple pie, too?

  6. Herb Ely says:

    The lawyers will make money on this. Someone will step forth claiming that “de-secrate” means “to remove from the sacred.” the lawyers will go to court claiming that congress has implicitly created the flag as a sacred symbol. I’ve suggested a scenario on my blog. Remember Norman Augustine said that people win bull fights but lawyers win people fights.

  7. Anderson says:

    Can we amend the constitution to ban insulting moms and apple pie, too?

    Based on Rehnquist’s dissent in Texas v. Johnson, the last SCOTUS flag-burnin’ case, I think his answer would be “yes.” Read it; it’s a hoot.

  8. Lt bell says:

    another bush assault on freedom -free speach-
    and america itself –
    burning a flag is meaningless banning the burning
    is UnAmerican-
    If only the christian could understand real democracy

  9. mike k says:

    As I have been saying often lately…aren’t there more important things for our exalted elected officials to be doing? How many hours were wasted on this issue?

    I would personally like to slap anyone who burns the flag but they have the right to do it and that is that; but honestly is it worth the effort?

    How about fixing that mess in Iraq or fixing our borders.

  10. LJD says:

    How about charging the offender with arson, or burning without a permit?

    Or we can issue a mandate for all flag burners to be beaten to a pulp by veterans.

  11. Radio Talk Show Hosts Hold Gannett Newspaper Burning Ceremony

    Radio Talk Show hosts Chris Dickson and Ron Chappell of “The Dickson/Chappell Report” are meeting at the Vietnam Memorial in Richmond, Indiana on July 9, 2005 to have a ceremonial burning of a “USA Today” newspaper in response to Gannett editor’s promises to burn American flag if Burning Amendment passes.

    The top editor at a newspaper owned by Gannett, which publishes USA Today, promised in a Sunday column to burn an American flag if the Senate passes an anti-flag burning amendment. Linda Grist Cunningham, Executive Editor of the Rockford Register Star in Illinois, pledged: “If the U.S. Senate follows its silly siblings in the House of Representatives and votes for a ban on burning the American flag, I’m going to burn one. It never occurred to me to burn a flag — except in some flag-retiring ceremony — but just the idea that Congress has nothing better to do than spend time on this nutty issue makes we want to burn one.” She also displayed her disgust with critics of Senator Dick Durbin, complaining that people “with an ax to grind” took “a couple of lines out of context.”