TheFlag Desecration Amendment (often referred to as theFlag-Burning Amendment) is a proposed addition to theConstitution of the United States that would allow theU.S. Congress to prohibit by statute and provide punishment for the physical "desecration" of theflag of the United States. The concept of flag desecration continues to provoke a heated debate over protecting anational symbol, preservingfree speech, and upholding the liberty said to be represented by that national symbol. While the proposal passed by the two-thirds majority required in theHouse of Representatives several times, in each instance it failed to attain the same required super-majority in theSenate, or was never voted upon in the Senate at all.
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 offlag 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 to come to a vote in both the House and Senate in the same congressional session failed in the Senate by one vote on June 27, 2006.[1][2][3] SenatorSteve Daines (R-MT) introduced a joint resolution to ban flag burning on June 14, 2019, and received support from theTrump administration, but the resolution was unsuccessful.[4] Daines reintroduced the resolution on June 14, 2021.[5]
The first federalFlag Protection Act was passed by Congress in 1968 in response to protest burnings of the flag at demonstrations against theVietnam War.[6] Over time, 48 of the 50 U.S. states also enacted similar flag protection laws. In 1989, theSupreme Court of the United States overturned all of these statutes by a 5–4 vote in the caseTexas v. Johnson as unconstitutional restrictions of public expression.[7] Congress responded to theJohnson decision afterwards by passing another flag protection act. In 1990, the Supreme Court reaffirmedJohnson by the same 5–4 majority inUnited States v. Eichman declaring that flag burning was constitutionally protected free speech.[8]
In both cases,William J. Brennan Jr. wrote the majority opinion, joined byThurgood Marshall,Harry Blackmun,Antonin Scalia, andAnthony Kennedy (Kennedy also authored a separate concurrence inJohnson), and the dissenters in both cases were then-Chief JusticeWilliam Rehnquist (who authored a dissent inJohnson), and justicesJohn Paul Stevens (who authored dissents in both cases),Byron White andSandra 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 theJohnson decision, successive sessions of Congress considered creating a flag desecration amendment. From 1995 to 2005, beginning with the104th 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's term. In June 2006, during the109th Congress, the amendment failed by one vote in the Senate.[1] 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.[9]
The full text of the amendment (passed several times by theU.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 offreedom of speech, enshrined in theFirst 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 JusticeWilliam J. 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."[10]
AUSA Today/Gallup Poll in June 2006 showed 56% supporting a constitutional amendment, down from 63% favoring a flag burning amendment in Gallup's 1999 poll.[11][12][13] Another poll conducted byCNN in June 2006 also found that 56% of Americans supported a flag desecration amendment.[2] In contrast, a summer 2005 poll by theFirst Amendment Center found that 63% of Americans opposed amending the constitution to outlaw flag burning, up from 53% in 2004.[14]
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.[15]
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 the109th 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:
| Congress | Resolution(s) | Vote date | Yes | No | Ref. |
|---|---|---|---|---|---|
| 104th Congress[16] | House Joint Resolution 79 | June 28, 1995 | 312 | 120 | [17] |
| Senate Joint Resolution 31 | December 12, 1995 | 63 | 36 | [18] | |
| 105th Congress[19] | House Joint Resolution 54 | June 12, 1997 | 310 | 114 | [20] |
| 106th Congress[21] | House Joint Resolution 33 | June 24, 1999 | 305 | 124 | [22] |
| Senate Joint Resolution 14 | March 29, 2000 | 63 | 37 | [23] | |
| 107th Congress[24] | House Joint Resolution 36 | July 17, 2001 | 298 | 125 | [25] |
| 108th Congress[26] | House Joint Resolution 4 | June 3, 2003 | 300 | 125 | [27] |
| 109th Congress[28] | House Joint Resolution 10 | June 22, 2005 | 286 | 130 | [29] |
| Senate Joint Resolution 12 | June 27, 2006 | 66 | 34 | [30] |
To be added to the Constitution, it must be approved by a two-thirds vote of those present and voting in both houses of Congress, as well as be ratified by at least three-fourths of either (1) the 50state legislatures or (2) ratifying conventions in each of the 50 states (Congress has the power to choose the mode of ratification). Senators had until the end of 2006 to take action on H.J. Res. 10 during the remainder of the 109th Congress.[28] On March 7, 2006,Senate Majority LeaderBill Frist announced that he would bring the bill for consideration in June 2006.[31] On Monday, June 26, 2006, the Senate began debate on the proposed amendment. The following day, the amendment, sponsored by SenatorOrrin Hatch, fell one vote short in the Senate, with 66 in support and 34 opposed. The Republican nay votes wereBob Bennett (UT),Lincoln Chafee (RI), andMitch McConnell (KY). The vote on SenatorRichard 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.[3] 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 theFederal Marriage Amendment) was election year grandstanding.
In 2005, theFirst Amendment Center published a report titled "Implementing a Flag-Desecration Amendment to the U.S. Constitution: An end to the controversy ... or a new beginning?"[32] The report pointed out that the effect of the proposed amendment would likely be challenged on collateral matters in ways that would require the courts, and ultimately the U.S. Supreme Court, to parse the exact meaning of ambiguous terms contained therein. The focus of the report was on the meanings that would be assigned to the phrases, "physical desecration" and "flag of the United States".
The phrase "physical desecration" might be open to various interpretations concerning the uncertainty of the context of desecration. For example, uncertainty exists over whether the term includes the wearing of the flag as clothing, as a tattoo, or flying a flag upside-down. It is uncertain what can be interpreted as "physical desecration". Does it require that the flag be physically damaged, or made to appear damaged? It is also unclear whether "virtual flag desecration" (which could be defined as an artistic depiction of flag desecration, a computerized simulation of flag desecration, or burning any object which has a flag on it) would be subject to the amendment. There is also the question whether the perpetrator of such an act is required to have aspecific intent to "desecrate" to be prosecuted. The Report of the 108th Congress, in proposing this amendment, stated:
... 'desecrate' means deface, damage, or otherwise physically mistreat in a way that the actor knows will seriously offend one or more persons likely to observe or discover his action...
This seems to suggest that the amendment would apply only to acts where the actor intends offense.
Since the amendment would allow prohibition against only "the flag of the United States", it could be construed as only applying to flags that are theproperty of the United States government, as opposed to personal or private property. This language could also be interpreted as being limited to flags that meet the exact specifications for the United States flag laid out in federal law. It is unclear what effect the amendment would have with respect to former flags of the United States, such as the 48-star flag that preceded the admission ofAlaska andHawaii, or the original 13-starBetsy Ross flag, or how far from the traditional definition of a flag a symbol could deviate (for example, having orange stripes instead of red) before falling out of the ambit of the amendment's jurisdiction.
The First Amendment Center concluded that the Supreme Court was likely to interpret this language narrowly, resulting in decisions that would not satisfy either proponents or opponents of the proposed amendment. These questions would necessarily await the interpretative role of the courts, and such a process would likely require several years for the resolution of each issue.[32]