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Flag Burning Amendment. A Failed Constitutional Amendment. H.J.RES. 33/S.J.RES. 14. 1999, proposed amendment to the US Constitution, when ratified by ¾ of state legislatures within 7 years:

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flag burning amendment

Flag Burning Amendment

A Failed Constitutional Amendment

h j res 33 s j res 14
H.J.RES. 33/S.J.RES. 14
  • 1999, proposed amendment to the US Constitution, when ratified by ¾ of state legislatures within 7 years:
  • “The Congress shall have the power to prohibit the physical desecration of the flag of the United States.”
the issue
The Issue
  • Without a constitutional amendment, this prohibition cannot become law.
  • A change to the constitution would be necessary to overcome two Supreme Court decisions that declared such laws unconstitutional.
texas v johnson 1989
Texas v. Johnson (1989)
  • Gregory Lee Johnson burned a US flag outside Dallas City Hall in protest of Pres. Reagan’s nuclear policies as the Republican national convention was being held in 1984.
  • He was arrested and charged with violating a Texas state law that prohibits the desecration of a public monument, place of worship or burial, or a state or national flag.
The Texas Court of Criminal Appeals overturned his conviction on grounds that his action was “symbolic speech” protected by the 1st Amendment.
  • The state appealed to the US Supreme Court, but it upheld the Appellate Court decision, saying that burning the flag represents “expressive conduct” and, therefore, a state may not prohibit it.
us v eichman 1990
US v. Eichman (1990)
  • Congress responded to the Texas v. Johnson decision by passing a US law, the Flag Protection Act of 1989, imposing a federal ban on flag desecration.
  • However, the Supreme Court struck down this law as unconstitutional in 1990 in a 5-4 decision in US v. Eichman.
effects of judicial review
Effects of Judicial Review
  • Since the court has declared such laws unconstitutional, if the nation or its government still wants the law, the constitution itself would have to be changed. Hence the proposed amendment.
supporting arguments
Supporting Arguments
  • Proponents of a ban on flag desecration regard the flag say that such a ban does not prevent individuals from expressing their views, but it does protect a symbol of our national unity and strength as a nation.
  • Senator John McCain described his experience as a Vietnam POW, saying that a fellow prisoner stitched together an American flag so they all could recite the pledge of allegiance daily. He said,
“American blood has been shed all over the world for the American flag…and I believe it deserves respect.”
  • Others have argued that flag burning is evidence of a decline in patriotism in the US citizenry, a phenomenon that is dangerous to our national strength and character.
  • Daniel S. Wheeler, President of the Citizens Flag Alliance, that the flag is a memorial to
all of the men and women who shed their blood at Lexington, Gettysburg, and Normandy, and elsewhere to make this country free. Flag burning shows disrespect for all such veterans and civil servants who built this country.

“I often wonder what those patriots would think…To see it is legal to desecrate the flag for which they fought and the flag that embraced their coffin and the flag that was the tissue for the tears of those who loved them.”

opposing arguments
Opposing Arguments
  • Former Senator, astronaut, and marine, John Glenn, stated that while flag-burners deserve to be criticized and scorned, their political statement must be protected to a free society.

“It would indeed be a hollow victory to protect the symbol by taking any chance at chipping away at the freedoms themselves.”

Assistant Attorney General R.D. Moss in the former Clinton administration testified that such an amendment would belittle the importance of the 1st Amendment.
  • Retired General Colin Powell wrote “I love our flag, our Constitution and our country…

[and] defended it for 35 years…They may be destroying a piece of cloth, but they do no damage to our system of freedom which tolerates such desecration…We should…

pity them [instead of prosecuting them].

Former POW, James H. Warner, wrote that his Communist North Vietnamese captors tried to discourage us and get us to change our minds about our country by showing us a picture of protestors of the war burning a US flag and saying, “People in your country protest against your cause [protecting democracy].” But, I said “No…That proves I’m right. In my country we are not afraid of freedom, even if it means that people disagree with us.”
Many opponents have also pointed out that the wording of such a law or amendment is difficult and could lead to the required protection of anything remotely resembling a flag.
  • For example, the US code (P.L.101-131, Sec 2(a)) prior to amendment after Texas v. Johnson, defined a flag as “…any flag, standard colors, ensign, or any picture or representation of either, or of any part or parts of either, made of any substance or represented on any substance, of any size
evidently purporting to be either of said flag, standard, color, or ensign of the United States of America, or a picture or a representation of either, upon which shall be shown the colors, the stars and the stripes, in any number of either thereof, or any part or parts of either, by which the average person seeing the same without deliberation may believe the same to represent the flag, standards, colors, or ensign of the United States of America.”
Even the current law in question in the US Code (Title 18, Part I, Ch. 33, Sec. 700) states that “Whoever knowingly mutilates, defaces, physically defiles, burns, maintains on the floor or ground, or tramples upon any flag [of the US]…shall be fined or imprisoned for [up to]…one year, or both.”
  • It defines a flag of the US as “…any part thereof, made of any substance, of any size, in a form that is commonly displayed.”
Rep. Gary Ackerman further made this point on C-Span debate when he showed flag-decorated boxer shorts and napkins and challenged the viewers to imagine them as being illegal to burn. Should red, white, and blue bathing suits be illegal? They could be. The amendment would give Congress the power to define such a ban using the method that it has in the past.
discussion questions
Discussion Questions:
  • Is patriotism important to the nation?
  • Are patriotism and national unity more important than a few persons’ chosen form of protest and free expression?
  • Should the government make sure that citizens remain patriotic?
  • Should flag-burning be a protected form of free speech?