While the proposed amendment is most frequently referred to colloquially in terms of "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 attempt to adopt a flag desecration amendment failed in the United States Senate by one vote on June 27, 2006.
The full text of the amendment (passed several times by the U.S. House of Representatives):
This proposed amendment was intended to give Congress the right to enact statutes criminalizing the burning or other desecration of the United States flag in a public protest. Proponents of legislation to proscribe flag burning argue that burning the flag is a very offensive gesture that deserves to be formally 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.
Principal 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.
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 United States v. Eichman, 496 U.S. 310 (1990). The Court decided that expression through flag burning was constitutionally protected.
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 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).
Several local governments and civic organizations have sent non-binding petitions to Congress asking that this amendment be proposed for ratification. However, some local governments oppose the amendment, and have sent their own petitions to Congress.
In both the Johnson and Eichman decisions, the statutes were struck down by a block composed of Justices William J. Brennan, Thurgood Marshall, Harry Blackmun, Antonin Scalia, and Anthony Kennedy. The dissenters in both cases were Chief Justice William Rehnquist , and Justices John Paul Stevens, Byron White and Sandra Day O'Connor.
The chronology of the Congress' action upon the flag-desecration amendment runs over a period of more than ten years:
|104th Congress||House Joint Resolution 79||June 28, 1995||312||120|
|Senate Joint Resolution 31||December 12, 1995||63||36|
|105th Congress||House Joint Resolution 54||June 12, 1997||310||114|
|106th Congress||House Joint Resolution 33||June 24, 1999||305||124|
|Senate Joint Resolution 14||March 29, 2000||63||37|
|107th Congress||House Joint Resolution 36||July 17, 2001||298||125|
|108th Congress||House Joint Resolution 4||June 3, 2003||300||125|
|109th Congress||House Joint Resolution 10||June 22, 2005||286||130|
|Senate Joint Resolution 12||June 27, 2006||66||34|
In order to be added to the Constitution, it must likewise 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 up 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 from 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.
"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."
Quoting the famous lines, "Shoot if you must, this old grey head, but spare your country's flag," from the Civil War poem, "Barbara Fritchie," he said the flag was "the visible symbol embodying our Nation."
Another argument stems from the fact 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. According to this argument, the amendment would single out people who committed the same acts with different intentions — thus, the amendment would regulate free thought, in contradiction with the First Amendment. Additionally, the question arises of what exactly constitutes a "flag". "Do the small, paper flags attached to toothpicks count as one of the sacred items", for example, would be a common question. One could also wonder if, for example, kicking out a chalk flag drawing by walking on it (or even drawing it on a surface where people regularly walk on) is a form of desecration. It is further pointed out by some opponents that as flag desecration is done as a means of protest, it is an attention-getting act. Thus calling attention to it by prosecuting and jailing those responsible (and turning them into martyrs and political prisoners in the eyes of their supporters), would serve only to make flag desecration a more attractive means of protest, and therefore, increase the incidence of it.
In light of this argument, the framing of this Amendment as dealing with flag burning is misleading. As the Supreme Court has never declared it unconstitutional to ban the burning of flags, it is not clear that a Constitutional Amendment would be necessary to effect such a ban. Indeed, most localities have ordinances restricting the burning of any material, flags included. In Texas v. Johnson, the Supreme Court did not find that it is unconstitutional to ban the burning of flags, but that it is unconstitutional to ban "the expression of particular political views" through the burning of flags. Thus, this Amendment is aimed not at banning the burning of flags, but at banning the expression of particular political views through the burning of flags.
Furthermore, it must be understood that while this is presented as preventing flag burning, the term "desecration" refers to a much broader range of activities, and in fact can be applied to anything that is determined to be "disrespectful", including not only affirmative acts, but failures to act. Previous arrests under flag-desecration laws have been made for symbolic desecration such as failure to salute the flag, refusal to pledge allegiance to the flag, and speaking contemptuously of the flag. Some Jehovah's Witnesses, Muslims, and others feel that the pledge and salute elevate the flag above the status of God. Amending the Constitution to make flag desecration laws possible might also result in the punishment of members of these religious groups. For example, in the case of Minersville School District v. Gobitis, 310 U.S. 586 (1940), the Supreme Court upheld the expulsion from school of children who refused to recite the pledge of allegiance on religious grounds. Thus, some American citizens fear one day being forced to salute the flag and being legally coerced into saying the pledge of allegiance if this amendment is enacted. However, this decision was overturned in West Virginia State Board of Education v. Barnette.
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."
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, receiving a tattoo of the flag, or flying a flag upside-down. It is uncertain what can be interpreted as "physical desecration", as it may or may not require that the flag actually be physically damaged, or even merely 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 a question over whether the perpetrator of such an act is required to have a specific intent to "desecrate" in order 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 will 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 the property of the United States government, as opposed to 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 of Alaska and Hawaii, or the original 13-star Us flag large Betsy Ross.png, 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. Other possible interpretive issues were not addressed by the First Amendment Center report.
First, no scope is stated in the amendment. The Supreme Court has previously held that Congress may prohibit foreign acts that have an effect in the United States, in 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 United States citizens. However, the general rule is that a law does not apply outside the United States unless the language of the law expressly provides for such an application. It is therefore unclear whether Congress would be able to prescribe punishments for those who burn the flag of the United States in a foreign country.
Second, the amendment would empower Congress to act, but not the states. Congress might interpret the amendment as giving it the power to ratify state laws to this effect, as it does for interstate compacts. The Court may find that the amendment has a preemptive effect, acting as a bar to anyone other than Congress itself passing such regulations. If so, then cases involving flag desecration would likely be restricted to the U.S. federal courts, as are cases involving criminal violations of copyright law. These are the only criminal courts over which Congress has jurisdiction to permit federal crimes to be heard.
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.