The Flag Burning Amendment (or, more properly, "flag desecration amendment") is a proposed amendment to the United States Constitution that would allow the U.S. Congress to outlaw, by statute, the physical desecration of the flag of the United States. The issue has provoked much debate over the competing desires of protecting a national symbol and protecting free speech. A constitutional amendment is an alteration to the constitution of a nation or a state. ... Page I of the Constitution of the United States of America Page II of the United States Constitution Page III of the United States Constitution Page IV of the United States Constitution The Syng inkstand, with which the Constitution was signed The Constitution of the United States is the supreme... The Congress of the United States is the legislative branch of the federal government of the United States of America. ... Flag ratio: 10:19; nicknames: Stars and Stripes, Old Glory The flag of the United States consists of 13 equal horizontal stripes of red (top and bottom) alternating with white; there is a blue rectangle in the upper hoist-side corner bearing 50 small, white, five-pointed stars arranged in... National symbols are symbols of states, nations and countries in the world. ... Freedom of speech is the right to freely say what one pleases, as well as the related right to hear what others have stated. ...

While the proposed amendment is most frequently referred to colloquially in terms of flag burning, the more proper description is flag desecration, since desecration may take forms other than burning, and, in point of fact, the U.S. Flag Code indicates that the preferred way to destroy a damaged flag respectfully is by burning it. Flag desecration is a blanket term applied to various ways of intentionally defacing or dishonoring a flag, most often a national flag (though other flags are defaced as well). ... The United States Flag Code establishes rules for display and care of the American Flag. ...

The U.S. Flag

Download high resolution version (1520x800, 18 KB) Subject: Flag of the United States. ... Download high resolution version (1520x800, 18 KB) Subject: Flag of the United States. ...

The proposed amendment

The full text of the actual amendment, as passed several times by the U.S. House of Representatives, reads as follows: Seal of the House of Representatives The United States House of Representatives is one of the two houses of the Congress of the United States, the other being the Senate. ...

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

This proposed amendment is intended to give Congress the right to enact statutes criminalizing the burning or other desecration of the United States flag in a public protest. Many observers have argued that burning the flag is a very offensive gesture that deserves to be formally outlawed. However, other persons 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. A public demonstration Freedom of speech is the liberty to freely say what one pleases, as well as the related liberty to hear what others have stated. ... The first ten Amendments to the U.S. Constitution make up the Bill of Rights. ...

Judicial and legislative history

The first federal Flag Protection Act was passed by Congress in 1968 in reponse to protest burnings of the flag at demonstrations against the Vietnam War.^[1] Over time, 48 of the 50 U.S. states also enacted similar flag protection laws as well. All of these statutes were overturned by the Supreme Court of the United States by a 5-4 vote in the case Texas v. Johnson, 491 U.S. 397 (1989) as unconstitutional restrictions of public expression. // Origin of the Flag Protection Act Reacting to protests during the Vietnam War era, the 90th Congress enacted Public Law 90-381 (82 Stat. ... 1968 was a leap year starting on Monday (the link is to a full 1968 calendar). ... The Vietnam War was fought from 1957 to 1975 between Soviet and Chinese-supported Vietnamese nationalist and Communist forces and an array of Western and pro-Western forces, most notably the United States. ... Seal of the Supreme Court The Supreme Court of the United States, located in Washington, D.C., is the highest federal court in the United States. ... Holding A Texas statute that criminalized the desecration of the American flag violated the First Amendment. ... Court citation is a standard system used in common law countries such as the United States, United Kingdom, Canada, and Australia to uniquely identify the location of past court cases in special series of books called reporters. ... 1989 is a common year starting on Sunday of the Gregorian calendar. ...

After the Johnson decision, Congress quickly passed a new Flag Protection Act, which was also struck down by the Supreme Court the following year by the same 5-4 majority in the case U.S. v. Eichman, 496 U.S. 310 (1990). The Court narrowly sided with those who argue that desecration of the flag constitutes a form of expression and, therefore, is acceptable conduct within the parameters of the First Amendment. United States v. ... Court citation is a standard system used in common law countries such as the United States, United Kingdom, Canada, and Australia to uniquely identify the location of past court cases in special series of books called reporters. ... 1990 is a common year starting on Monday of the Gregorian calendar. ...

The decisions were very controversial and have prompted Congress to consider the only remaining legal avenue to enact flag protection statutes—a constitutional amendment. Each Congress since the Johnson decision has considered creating a flag desecration amendment. Since 1995, beginning with the 104th Congress, the proposed amendment has been approved biennially by the two-thirds majority necessary in the U.S. House of Representatives, but it has consistently failed to achieve the same, necessary 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 Congress' term). 1995 was a common year starting on Sunday of the Gregorian calendar. ... Members of the 104th United States Congress: // States Alabama Senators Howell T. Heflin (D) Richard C. Shelby (R) Representatives 1. ... Seal of the Senate The United States Senate is one of the two houses of the Congress of the United States, the other being the House of Representatives. ...

Starting in 1989, the legislatures of all 50 states have passed non-binding resolutions memorializing Congress to propose the flag-desecration amendment to the states for ratification, with Vermont being the most recent example in 2002.^[2] Additionally, countless local governments and civic organizations have sent non-binding petitions to Congress asking that this amendment be proposed for ratification. 1989 is a common year starting on Sunday of the Gregorian calendar. ... State legislatures are the lawmaking bodies of the 50 states in the United States of America. ... State nickname: The Green Mountain State Other U.S. States Capital Montpelier Largest city Burlington Governor Jim Douglas Official languages None Area 24,923 km² (45th)  - Land 23,974 km²  - Water 949 km² (3. ... 2002 is a common year starting on Tuesday of the Gregorian calendar. ...

Congressional votes

During each term of Congress since 1995, the proposed amendment has passed the House of Representatives, but not the Senate—falling four votes short on two occasions in the upper body. As approved by the House of Representatives each time, the joint resolutions have 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 its 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 a decade earlier during the 104th. The 109th United States Congress meets from January 4, 2005, to January 1, 2007. ...

Here is a 10-year chronology of the House of Representatives' action upon the flag-desecration amendment:

• 104th Congress: The House of Representatives approved H.J. Res. 79 by a vote of 312-120 on June 28, 1995. The amendment failed in the Senate by a vote of 63-36 on December 12, 1995.^[3]

• 105th Congress: The House of Representatives approved H.J. Res. 54 by a vote of 310-114 on June 12, 1997. The amendment failed to come to a vote in the Senate.^[4]

• 106th Congress: The House of Representatives approved H.J. Res. 33 by a vote of 305-124 on June 24, 1999. The amendment failed in the Senate by a vote of 63-37 on March 29, 2000.^[5]

• 107th Congress: The House of Representatives approved H.J. Res. 36 by a vote of 298-125 on July 17, 2001. The amendment failed to come to a vote in the Senate.^[6]

• 108th Congress: The House of Representatives approved H.J. Res. 4 by a vote of 300-125 on June 3, 2003. The amendment failed to come to a vote in the Senate.^[7]

During this current 109th Congress, the amendment (in the form of House Joint Resolution No. 10) passed with 286 yeas, 130 nays, and 18 "not voting" in the House of Representatives on June 22, 2005. In order to be added to the Constitution, it must likewise be approved by a vote of at least two-thirds of the 100-member Senate, as well as be ratified by at least three-fourths of the 50 state legislatures. Senators have until the end of 2006 to take action upon H.J. Res. 10 during the remainder of the 109th Congress.^{[8] [9]} Members of the 104th United States Congress: // States Alabama Senators Howell T. Heflin (D) Richard C. Shelby (R) Representatives 1. ... (Some entries on this page have been duplicated on August 1. ... 1995 was a common year starting on Sunday of the Gregorian calendar. ... December 12 is the 346th day (347th in leap years) of the year in the Gregorian calendar. ... 1995 was a common year starting on Sunday of the Gregorian calendar. ... -1... June 12 is the 163rd day of the year in the Gregorian calendar (164th in leap years), with 202 days remaining. ... 1997 is a common year starting on Wednesday of the Gregorian calendar. ... // Leadership Senate House of Representatives States Members of the 106th United States Congress: Alabama Senators Richard C. Shelby (R) Jefferson B. Sessions III (R) Representatives 1. ... June 24 is the 175th day of the year (176th in leap years) in the Gregorian Calendar, with 190 days remaining. ... 1999 is a common year starting on Friday of the Common Era, and was designated the International Year of Older Persons by the United Nations. ... March 29 is the 88th day of the year in the Gregorian Calendar (89th in Leap years). ... 2000 is a leap year starting on Saturday of the Gregorian calendar. ... The 107th Congress met from January 3, 2001 to January 3, 2003. ... July 17 is the 198th day (199th in leap years) of the year in the Gregorian calendar, with 167 days remaining. ... 2001 is a common year starting on Monday of the Gregorian calendar. ... -1... June 3 is the 154th day of the year in the Gregorian calendar (155th in leap years), with 211 days remaining. ... 2003 is a common year starting on Wednesday of the Gregorian calendar. ... The 109th United States Congress meets from January 4, 2005, to January 1, 2007. ... June 22 is the 173rd day of the year (174th in leap years) in the Gregorian Calendar, with 192 days remaining. ... 2005 is a common year starting on Saturday of the Gregorian calendar and is the current year. ... State legislatures are the lawmaking bodies of the 50 states in the United States of America. ...

Arguments for the amendment

Proponents of the amendment argue that protecting the flag is necessary because of the uniqueness of the flag as a revered symbol of the United States. In his dissenting opinion in Texas v. Johnson, Chief Justice William H. Rehnquist wrote, William H. Rehnquist has served as the Chief Justice of the United States since 1986. ...

The American flag, then, throughout more than 200 years of our history, has come to be the visible symbol embodying our Nation. It does not represent the views of any particular political party, and it does not represent any particular political philosophy. The flag is not simply another "idea" or "point of view" competing for recognition in the marketplace of ideas. Millions and millions of Americans regard it with an almost mystical reverence regardless of what sort of social, political, or philosophical beliefs they may have. I cannot agree that the First Amendment invalidates the Act of Congress, and the laws of 48 of the 50 States, which make criminal the public burning of the flag.

Rehnquist also argued that flag burning is "no essential part of any exposition of ideas" but rather "the equivalent of an inarticulate grunt or roar that, it seems fair to say, is most likely to be indulged in not to express any particular idea, but to antagonize others."

Arguments against the amendment

The proposed amendment has met with resistance from civil liberties groups and first amendment defenders. Opponents of the flag desecration proposal say that an amendment making such activity illegal would undermine the very principles for which the American flag stands. Jailing protesters of dissenting opinion—such as those who burn national flags—is common under authoritarian regimes. Another argument is that groups such as the American Legion and the Boy Scouts of America regularly burn flags as a way to dispose of them in a respectful manner in keeping with the United States Flag Code. The amendment singles out people who are committing the same acts with different thoughts in their heads. Thus, the government is trying to regulate free thought, certainly not keeping with the first amendment. Opponents also point out the rarity of flag desecration in the United States, and assert that the proposed amendment is the epitome of "a solution in search of a problem".

In the majority opinion in Texas v. Johnson, Justice William J. Brennan wrote: "We do not consecrate the flag by punishing its desecration, for in doing so we dilute the freedom that this cherished emblem represents." William J. Brennan, Jr. ...

Potential interpretations of the amendment

If enacted, the effect of the amendment will likely be challenged on collateral matters in ways that will require the courts, and ultimately the U.S. Supreme Court, to parse the exact meaning of ambiguous terms contained therein.

First, the amendment would empower Congress to act, but not the states. However, Congress might interpret this as giving it the power to ratify state laws to this effect, as it does for interstate compacts. Since no scope is stated in the amendment, it is also unclear whether Congress would be able to prescribe punishments for those who burn the American flag in a foreign country. The Supreme Court has previously held that Congress may prohibit foreign acts that have an effect in the U.S. (see Hartford Fire Insurance Co. v. California, 509 U.S. 764 (1993)), and certainly the desecration of the flag on foreign soil would likely have the intended effect of offending Americans. An interstate compact is an agreement between two or more U.S. states. ... Holding --- Court membership Case opinions Laws applied --- Hartford Fire Insurance Co. ... Court citation is a standard system used in common law countries such as the United States, United Kingdom, Canada, and Australia to uniquely identify the location of past court cases in special series of books called reporters. ... 1993 is a common year starting on Friday of the Gregorian calendar and marked the Beginning of the International Decade to Combat Racism and Racial Discrimination (1993-2003). ...

Second, the phrase "physical desecration" might be open to various interpretations - does the term include the wearing of the flag as clothing? Receiving a tattoo of the flag? Flying a flag upside-down? Would it require that the flag actually be physically damaged, or merely made to appear damaged? Does it require that the perpetrator of such an act have a specific intent to "desecrate"? 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 will only apply to acts where the actor intends offense.

Finally, since the amendment would only allow prohibition against "the flag of the United States," it could be construed as only applying to flags that are the property of the U.S. government, as opposed to private property. This language could also be interpreted as being limited to flags that meet the exact specifications for the U.S. 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 of Alaska and Hawaii, or the original 13-star flag), or how far from the traditional definition of a flag a symbol could deviate before falling out of the ambit of the amendment's protection. State nickname: The Last Frontier, The Land of the Midnight Sun Other U.S. States Capital Juneau Largest city Anchorage Governor Frank Murkowski (R) Official languages English Area 1,717,854 km² (1st)  - Land 1,481,347 km²  - Water 236,507 km² (13. ... State nickname: The Aloha State Other U.S. States Capital Honolulu Largest city Honolulu Governor Linda Lingle (R) Official languages Hawaiian and English Area 28,337 km² (43rd)  - Land 16,649 km²  - Water 11,672 km² (41. ...

All of 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.

References

1. ^  "Flag Protection: A Brief History and Summary of Recent Supreme Court Decisions and Proposed Constitutional Amendment", by John Luckey (PDF).
2. ^  Citizens Flag Alliance, http://www.cfa-inc.org/
3. ^  "Bill Summary & Status for the 104th Congress", Library of Congress: H.J. Res. 79, S.J. Res 31.
4. ^  "Bill Summary & Status for the 105th Congress", Library of Congress: H.J. Res. 54.
5. ^  "Bill Summary & Status for the 106th Congress", Library of Congress: H.J. Res 33, S.J. Res. 14.
6. ^  "Bill Summary & Status for the 107th Congress", Library of Congress: H.J. Res. 36.
7. ^  "Bill Summary & Status for the 108th Congress", Library of Congress: H.J. Res 4
8. ^  "Bill Summary & Status for the 109th Congress", Library of Congress: H.J. Res. 10
9. ^  "House Approves Move to Outlaw Flag Burning", June 22, 2005, Associated Press via San Francisco Chronicle

• Cracking the Flag-Burning Amendment
• Committee Report on the Flag Protection Constitutional Amendment

The Citizens Flag Alliance is an American organization advocating in favor of the Flag Burning Amendment project. ...

Related articles

• Flag desecration in the United States