Flag Desecration Amendment facts for kids

The Flag Desecration Amendment (often referred to as the Flag-Burning Amendment) is a proposed addition to the Constitution of the United States that would allow the U.S. Congress to prohibit by statute and provide punishment for the physical "desecration" of the flag of the United States. The concept of flag desecration continues to provoke a heated debate over protecting a national symbol, preserving free speech, and upholding the liberty said to be represented by that national symbol.

While the proposed amendment is frequently referred to colloquially in terms of expression of political views through "flag burning", the language would permit the prohibition of all forms of flag desecration, which may take forms other than burning, such as using the flag for clothing or napkins.

The most recent legislative attempt to propose a flag desecration amendment failed in the United States Senate by one vote on June 27, 2006. In June 2019, Senator Steve Daines (R-MT) proposed reviving the previously unsuccessful amendment language, and received the support of the Trump administration.

Historical background

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. Over time, 48 of the 50 U.S. states also enacted similar flag protection laws. In 1989, the Supreme Court of the United States overturned all of these statutes by a 5–4 vote in the case Texas v. Johnson as unconstitutional restrictions of public expression. Congress responded to the Johnson decision afterwards by passing another flag protection act. In 1990, the Supreme Court reaffirmed Johnson by the same 5–4 majority in United States v. Eichman declaring that flag burning was constitutionally protected free speech.

In both cases, William J. Brennan wrote the majority opinion, joined by Thurgood Marshall, Harry Blackmun, Antonin Scalia, and Anthony Kennedy (Kennedy also authored a separate concurrence in Johnson), and the dissenters in both cases were then-Chief Justice William Rehnquist (who authored a dissent in Johnson), and justices John Paul Stevens (who authored dissents in both cases), Byron White and Sandra Day O'Connor.

The decisions were controversial and have prompted Congress to consider the only remaining legal avenue to enact flag protection statutes—a constitutional amendment. Following the Johnson decision, successive sessions of Congress considered creating a flag desecration amendment. From 1995 to 2005, beginning with the 104th Congress, the proposed amendment was approved biennially by the two-thirds majority necessary in the U.S. House of Representatives, but it consistently failed to achieve the same constitutionally required 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 the Congress' term. In 2006, during the 109th Congress, the amendment failed by one vote in the Senate. Some Senate Republican aides indicated that almost a dozen of the Republican senators who voted for the amendment were privately opposed to it, and they believed that these senators would have voted to defeat the amendment if required.

Proposed amendment

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

The Congress shall have power to prohibit the physical desecration of the flag of the United States.

This proposed amendment would empower Congress to enact statutes criminalizing the burning or other "desecration" of the United States flag in a public protest. The wording is permissive rather than mandatory; that is, it permits Congress to prohibit flag burning, but it does not require it. The question of whether flag burning should be banned would become a matter for the legislature to decide, rather than the courts.

Proponents of legislation to proscribe flag burning argue that burning the flag is a very offensive gesture that deserves to be outlawed. Opponents maintain 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.

The 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 William Joseph Brennan, Jr. 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."

Polls

A USA Today/Gallup Poll in June 2006 has shown 56% supporting a constitutional amendment, down from 63% favoring a flag burning amendment in Gallup's 1999 poll. Another poll conducted by CNN in June 2006 also found that 56% of Americans supported a flag desecration amendment. In contrast, a summer 2005 poll by the First Amendment Center found that 63% of Americans opposed amending the constitution to outlaw flag burning, up from 53% in 2004.

A June 2020 YouGov poll found that 49% think it should be illegal to burn or intentionally destroy the flag, while 34% said it should be legal.

Congressional votes

During each term of Congress from 1995 to 2005, the proposed amendment was passed by the House of Representatives, but not the Senate, falling four votes short on two occasions in the upper house. As approved by the House of Representatives each time, the joint resolutions 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 the 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 almost a decade earlier during the 104th.

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

To be added to the Constitution, it must be approved by a two-thirds vote of those present and voting in the 100-member Senate, as well as be ratified by at least three-fourths of the 50 state legislatures. Senators had until the end of 2006 to take action on H.J. Res. 10 during the remainder of the 109th Congress. On March 7, 2006, Senate Majority Leader Bill Frist announced that he would bring the bill for consideration in June 2006. On Monday, June 26, 2006, the Senate began debate on the proposed amendment. The following day, the amendment, sponsored by Senator Orrin Hatch, fell one vote short in the Senate, with 66 in support and 34 opposed. The Republican nay votes were Bob Bennett (UT), Lincoln Chafee (RI), and Mitch McConnell (KY). The vote on Senator Richard Durbin's alternative amendment, which would have given Congress the power to ban flag desecration intended to intimidate or breach peace on federal land, was 36–64. Opponents pointed to the proximity of the vote to the November 7, 2006 Congressional Election, and claimed that the vote (and a recent vote on the Federal Marriage Amendment) was election year grandstanding.

See also

In Spanish: Enmienda sobre la Profanación de la Bandera para niños