Malcolm Rivera
The Flag Desecration Amendment, also known as the Flag-Burning Amendment, is a proposed addition to the US Constitution that would allow Congress to prohibit the physical desecration of the US flag. While the proposal has passed the House of Representatives several times, it has never attained the required supermajority in the Senate. The amendment stems from a series of Supreme Court rulings that overturned flag desecration convictions on the basis of the First Amendment, including the controversial Texas v. Johnson case in 1989, which upheld the rights of protesters to burn the American flag.
| Characteristics | Values |
|---|---|
| Amendment Name | Flag Desecration Amendment (also referred to as the Flag-Burning Amendment) |
| Amendment Purpose | To allow the U.S. Congress to prohibit by statute and provide punishment for the physical "desecration" of the flag of the United States |
| Amendment History | The amendment has been proposed and passed in the House of Representatives several times between 1995 and 2006 but has consistently failed to achieve the required supermajority in the Senate. |
| Legal Context | The Supreme Court has ruled that flag burning is a constitutionally protected form of free speech under the First Amendment. Congress has passed laws, such as the Flag Protection Act, to prohibit flag desecration, but these have been struck down by the Court as unconstitutional. |
| Public Opinion | Public support for a flag desecration amendment varies, with polls showing support ranging from 49%-63% and opposition ranging from 34%-63%. |
| Related Court Cases | Texas v. Johnson (1989), United States v. Eichman (1990), Street v. New York (1969), Smith v. Goguen, Spence v. (unknown), West Virginia State Bd. of Educ. v. Barnette (1943) |
| Related Laws and Codes | 4 U.S. Code § 8 - Respect for the Flag, Flag Protection Act of 1989 |
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What You'll Learn
The Flag Desecration Amendment
The Supreme Court has, on several occasions, ruled that flag burning is a form of symbolic speech protected by the First Amendment. In Texas v. Johnson (1989), the Supreme Court held that Johnson's burning of the flag was protected expression under the First Amendment. The Court's ruling in this case overturned all state statutes outlawing flag desecration. Similarly, in United States v. Eichman (1990), the Court held that burning the flag was allowable expressive conduct.
Despite these rulings, Congress has repeatedly tried to pass laws or constitutional amendments outlawing flag desecration. The most recent attempt to propose a flag desecration amendment was in 2006, when the amendment passed the House by a vote of 286-130 but failed by one vote (66-34) in the Senate. During each term of Congress from 1995 to 2005, the proposed amendment was passed by the House of Representatives but not by the Senate, falling short by four votes on two occasions. In 2006, during the 109th Congress, the amendment failed by one vote in the Senate.
The issue of flag desecration remains controversial, and it is likely to remain so in the near future. While some argue that the US should preserve the flag as a symbol of national unity, others fear that amending the Constitution to outlaw flag desecration would set a dangerous precedent by modifying the protections of the First Amendment.
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The Supreme Court ruling
The Supreme Court has ruled on the constitutionality of flag desecration, specifically in the context of burning the American flag, in several notable cases. One of the earliest cases, Street v. New York in 1969, involved the Court overturning the conviction of a World War II veteran who burned his flag in protest. The Court ruled that this act was protected under the First Amendment as symbolic speech.
However, the most significant ruling came in 1989 in Texas v. Johnson. In this case, the Court upheld the right to burn the American flag as a form of political expression protected by the First Amendment. The Court voted 5-4 in favour of Gregory Lee Johnson, a protester who burned the flag during a demonstration. Justice William Brennan, joined by Justices Kennedy, Marshall, Blackmun, and Scalia, wrote the majority opinion, stating that Johnson's conduct was "expressive conduct" and did not threaten to disturb the peace.
In United States v. Eichman in 1990, the Court reaffirmed its commitment to protecting flag burning as a form of free speech. The Court struck down the Flag Protection Act of 1989, passed by Congress in response to the Johnson decision, as unconstitutional. Justice Brennan, again writing for the Court, emphasised that the government could not prohibit the expression of an idea merely because it was deemed offensive or disagreeable.
Despite these rulings, Congress has repeatedly attempted to amend the Constitution to prohibit flag desecration. From 1995 to 2005, the proposed amendment was approved by the required two-thirds majority in the House of Representatives but consistently failed to achieve the necessary supermajority in the Senate. Polls have shown varying levels of public support for such an amendment, with some indicating a majority in favour, while others show a majority opposed.
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The Flag Protection Act
The Act was a response to the Supreme Court's ruling in Texas v. Johnson (1989), which held that burning the American flag was a constitutionally protected form of free speech under the First Amendment. The Court's decision sparked controversy and prompted Congress to consider amending the Constitution to prohibit flag desecration.
Despite the passage of the Flag Protection Act, the Supreme Court continued to strike down flag desecration laws on First Amendment grounds. In United States v. Eichman (1990), the Court held that a federal statute prohibiting the physical desecration of the flag violated the First Amendment. The Court's rulings in these cases suggested an effort to protect "symbolic conduct" under the First Amendment, recognizing that flag desecration can be a form of political expression.
While the Flag Protection Act was a significant development in the debate over flag desecration, it did not resolve the issue. The debate continues to centre around the tension between protecting a national symbol and preserving the freedom of speech guaranteed by the First Amendment. Attempts to amend the Constitution to prohibit flag desecration have repeatedly failed to gain the necessary support in the Senate, with opponents arguing that such a ban would limit the very freedoms the flag symbolizes.
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The First Amendment
In 1969, in the case of Street v. New York, the Supreme Court overturned the conviction of a WWII veteran who burned his own flag in protest. The Court ruled that his actions were protected under the First Amendment as a form of symbolic speech.
The Texas v. Johnson case in 1989 also involved flag burning during a protest. The Supreme Court again upheld the right to burn the American flag as a form of political expression protected by the First Amendment. Justice William Brennan wrote the majority decision, stating, "If there is a bedrock principle underlying the First Amendment, it is that the Government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable." This decision led to Congress passing the Flag Protection Act of 1989, which was struck down by the Court in 1990 as a violation of free speech.
In Smith v. Goguen in 1974, the Court overturned a conviction for wearing trousers with a small US flag sewn to the seat, citing the First Amendment and stating that the statute punishing those who "treat the flag contemptuously" was unconstitutionally vague.
While there have been several attempts to amend the Constitution to prohibit flag desecration, none have succeeded due to the lack of the required supermajority vote in the Senate. These proposals have sparked ongoing debates about the delicate balance between protecting the flag as a national symbol and upholding the freedoms enshrined in the First Amendment.
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The Senate vote
The debate surrounding the amendment centres on the tension between protecting a national symbol and preserving freedom of speech. Proponents of the amendment argue that flag burning is offensive and should be outlawed. They believe that flag desecration is a disrespectful act that undermines the country's values and traditions. On the other hand, opponents of the amendment assert that granting Congress the power to prohibit flag desecration would infringe upon the First Amendment rights of citizens. They argue that flag burning can be a form of symbolic speech, often used to express political or social ideas, and that protecting freedom of speech is paramount.
During successive sessions of Congress from 1995 to 2005, the proposed amendment was consistently approved by the House of Representatives but failed to achieve the required supermajority in the Senate. In some instances, the proposal was not even brought to a vote in the Senate before the expiration of the congressional term. This pattern continued until 2006, when the amendment came within one vote of passing in the Senate. Despite the support of a majority of senators, the amendment fell short of the necessary two-thirds supermajority.
The Flag Desecration Amendment continues to be a subject of debate, and it remains to be seen whether future votes in the Senate will result in its passage. The amendment's progression through Congress highlights the complex dynamics of legislative decision-making, particularly when fundamental rights and national symbols are at the heart of the discussion.
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Frequently asked questions
No, the US Constitution has not been amended for a flag bill. The Flag Desecration Amendment, or Flag-Burning Amendment, is a proposed addition to the Constitution that would allow Congress to prohibit the desecration of the US flag.
The Flag Desecration Amendment was first proposed in 1989 following the Texas v. Johnson case, in which the Supreme Court ruled that burning the American flag was protected by the First Amendment.
Yes, the amendment has been approved by the House of Representatives several times, but it has never passed in the Senate, falling short of the required two-thirds majority. In 2006, the amendment failed in the Senate by just one vote.
