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Flag Protection Amendment Passes House
Senate rejection again expected
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"The flag is our most cherished symbol. Men fought and died for that flag so that you could have the privilege of sitting around on your fat duff and posting to Internet forums." AMITABH2

"The Constitution is meant to circumscribe and dictate the behavior of the government. A flag-burning amendment is therefore inappropriate as it attempts to delineate the citizenry's behavior." TAOREN

Related Resources
Flag Protection Fails in Senate
Senate Debates Flag Burning Amendment
Amending the Constitution

From Other Guides
Flag Burning - What's Really at Play? (Politics)
Pondering Patriotism (Civil Liberty)
Your Thoughts on Flag Burning (Crime)
The Right to Shock and Hate (Conservatives)

Elsewhere on the Web
Citizens' Flag Alliance (Supports the Amendment)
American Civil Liberties Union (Opposes the Amendment)

Dateline: 07/17/01

The U.S. House of Representatives today pass a proposed constitutional amendment granting Congress the power to prohibit acts of physical desecration of the United States Flag.

By a vote of 298-125, the House approved and sent to the Senate H J Res 36, the Flag Desecration resolution, sponsored by Rep. Randy (Duke) Cunningham, (R-California).

Rather than prohibiting flag desecration itself, the proposed amendment would grant Congress the power to enact actual laws to to prohibit the physical desecration of the flag.

Opponents of the amendment argue that it would violate the freedom of speech and expression clause of the First Amendment.

"Make no mistake, I deplore desecration of the flag," stated Rep. Alcee Hastings (D-FL), as he opened debate against the amendment, but he added , "I firmly believe that passing this constitutional amendment would abandon the very value and principles that this country was founded."

"It begins a dangerous trend in which the government decides which ideas are legal, and which must be suppressed," concluded Hastings.

Leading supporters of the amendment was Rep. John Linder (R-GA) who told the House, "If we prohibit the destruction of U.S. currency by law then surely protecting our symbol of freedom and democracy can be just as important."

Rep. Mel Watt (D-NC), stated that after five opportunities to debate the flag desecration amendment in the House, he had concluded that, "Everybody on either side of this debate is a patriot."

Despite the amendment's success in the House today, it is expected to fail again in the Senate. Five similar amendments have been rejected by the Senate over the last 12 years. Constitutional amendments require a two-thirds vote of both House and Senate in order to be sent to the States for ratification. The president has no power of approval or veto over amendments to the Constitution. To take effect, an amendment must approved by the legislatures in 38 of the 50 states. [Also see: Amending the Constitution]

The Senate last rejected the amendment in March 2000 when a 63-37 vote fell four votes short of the required two-thirds majority. [Also See: Flag Protection Fails in Senate]

To date, 49 states have passed resolutions requesting a flag protection amendment be approved by Congress and sent to the States for ratification.

Brief History of Flag Protection Law
Prior to 1989, 48 states and the Federal Government had laws prohibiting desecration of the flag.

In 1989, the U.S. Supreme Court ruled in the case of Texas v. Johnson that burning an American flag as part of a political demonstration was expressive conduct protected by the freedom of speech clause of the First Amendment to the U.S. Constitution.

In the case of Texas v. Johnson, Gregory Johnson publicly burned a stolen American Flag during his participation in a protest outside of the 1984 Republican National Convention in Dallas, Texas.

Johnson was convicted of flag desecration under a Texas law in effect at the time which prohibited the intentional desecration of a national flag in a manner in which "the actor knows will seriously offend one or more persons likely to observe or discover his action."

His conviction was upheld by the Court of Appeals for the Fifth District of Texas, but reversed by the Texas Court of Criminal Appeals. The United States Supreme Court, in a 5 to 4 vote on June 12, 1989, affirmed the Court of Criminal Appeals conclusion that Johnson's conviction was inconsistent with the First Amendment because his actions had constituted "symbolic free expression."

Since the Supreme Court's ruling, neither the States, nor the Federal Government, have been able to enact laws prohibiting the desecration of the American flag.

According to supporters of the flag protection amendment, there have been 86 reports of incidents involving flag desecration that have occurred in 29 states, the District of Columbia, and Puerto Rico since 1994.

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