Should the Constitution Give Congress the Authority to Prevent the Desecration of the American Flag? (S. Joint Res. 20)
Do you support or oppose this bill?
What is S. Joint Res. 20?
(Updated March 20, 2022)
This resolution would propose an amendment to the U.S. Constitution that’d give Congress the power to prohibit the physical desecration of the U.S. flag. A constitutional amendment would be required because of Supreme Court precedent in Texas v. Johnson, which allows Americans to desecrate the U.S. flag as protected free expression under the First Amendment.
Because it proposes a constitutional amendment, after this resolution’s passage by two-thirds of both chambers of Congress it would have to be ratified by three-fourths of the state legislatures (38 states) to amend the U.S. Constitution.
Argument in favor
The Constitution should give Congress the authority to prohibit the desecration of the American flag. Flag-burning disrespects both the flag itself and veterans' sacrifices and should therefore be prohibited.
Argument opposed
The Constitution needs to continue to protect the right of Americans to desecrate the American flag under the First Amendment. Banning flag-burning could be the start of other restrictions on the First Amendment.
Impact
People who would desecrate the American flag; state legislatures; Congress; and the Constitution.
Cost of S. Joint Res. 20
A CBO cost estimate is unavailable.
Additional Info
In-Depth: Sponsoring Sen. Steve Daines (R-MT) reintroduced this resolution from the 115th and 116th Congresses to amend the Constitution to give Congress the authority to prohibit the desecration of the American flag. In a press release, he said:
“The American flag is a symbol of liberty and a beacon of hope. It represents the ideals that our nation was built upon and for decades, brave men and women have carried its colors into battle to defend the United State of America. The Stars and Stripes are a representation of freedom. We must always protect and respect the American flag.”
Original cosponsor Sen. Kevin Cramer (R-ND) added:
“A flag worth dying for is a flag worth defending. On Flag Day, we celebrate the American flag and remember the cherished freedoms it symbolizes… While we should always be mindful of First Amendment rights, the American flag signifies the founding principles that countless men and women have given their lives to preserve. Adding a Constitutional amendment to protect this symbol of freedom and liberty is not an attack on another Constitutional amendment; rather, it is an affirmation of the unifying principles our nation stands for.”
Veterans organizations in Montana support this resolution. In 2017, the American Legion of Montana said, "It is long past time that the flag of the United States be protected from desecration. The American Legion of Montana applauds Senator Daines’ effort to protect the flag.” Similarly, the Department of Montana Veterans of Foreign Wars said, "The U.S. flag should be protected by the U.S. Constitution in the name of all veterans that gave their lives to protect it."
Libertarian commentator Katherine Timpf argued in National Review Online that keeping flag burning legal is an act of patriotism that expresses support for the First Amendment (emphasis added):"Is burning an American flag a disgusting, reprehensible act? Yes, it absolutely is, and I would tell that to the face of absolutely anyone who has done so. The flag is a symbol of our freedom, and burning it absolutely is one of the least patriotic things that a person could possibly do. I say 'one of the least' because I can think of a few things that would actually be less so — and, as a matter of fact, I think that flag-burning would absolutely be on that list... Although it may seem counterintuitive, one of the things that our flag stands for is our right to burn it if we choose to do so. Why? Because among the freedoms that the flag stands for is our freedom of speech... [T]he most important role that the First Amendment plays in this country is that it gives us the freedom to speak out against our government, thereby providing a check on its power... I normally hate the 'slippery slope' argument, but in this instance, I have to admit that the slope is exactly what makes me so terrified. Think about it: If we outlaw flag burning because it is 'unpatriotic,' what could 'because unpatriotic' be used as an excuse to outlaw next? Protesting government decisions? Speaking out against the president? If we start using 'lack of patriotism' as a barometer for what speech should and should not be allowed, we could see the tragic loss of the very freedoms that our flag is meant to extoll... [H]ating something doesn’t always mean that the answer is to call on government powers to it — and, in fact, I’d say that that is the best solution, when it comes to speech. To me, a better solution than sliding down the slope of fascism would be to encourage people to use their rights to free speech to protest the things that they don’t like . . . flag-burning included. So, go ahead: Tell flag-burners how you really feel... But do not try to use government power to stop them from exercising their First Amendment rights — because doing so is insult to the very symbol that you’re claiming to cherish."
This legislation has the support of five Republican cosponsors in the Senate. A House companion bill introduced by Rep. Steve Womack (R-AR) has the support of nine Republican cosponsors.
The House of Representatives has on several occasions passed joint resolutions that would similarly allow Congress to amend the Constitution to prohibit desecration of the American flag with the bipartisan support needed to reach a two-thirds majority. However, Senate votes in 1995, 2000, and 2006 fell short of the two-thirds threshold.
Of Note: A constitutional amendment would be the only way to allow prohibitions on flag burning to be enacted because of the Supreme Court’s 1989 ruling in that flag burning is protected speech under the First Amendment. In a 5-4 decision, Justice William Brennan was joined by Justice Thurgood Marshall, Justice Harry Blackmun, Justice Antonin Scalia, and Justice Anthony Kennedy in upholding the right to burn the flag, writing for the majority that:
“If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.”
Justice Sandra Day O’Connor and Justice Byron White joined a dissenting opinion by Chief Justice William Rehnquist who wrote:
“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.”Before the Court's decision, 48 states had laws on the books banning flag desecration.
Media:
Sponsoring Sen. Steve Daines (R-MT) Press Release (117th Congress)
Sponsoring Sen. Steve Daines (R-MT) Press Release (116th Congress)
Sponsoring Sen. Steve Daines (R-MT) Press Release (115th Congress)
Sponsoring Sen. Steve Daines (R-MT) Flag Day Press Release (115th Congress)
Sponsoring Sen. Steve Daines (R-MT) Report on American Flag Burning (115th Congress)
Original Cosponsor Sen. Kevin Cramer (R-ND) Press Release (117th Congress)
Original Cosponsor Sen. Kevin Cramer (R-ND) Press Release (116th Congress)
House Companion Resolution Sponsor Rep. Steve Womack (R-AR) Press Release (116th Congress)
The National Review (Opposed)
The American Legion (In Favor)
Causes (116th Congress Summary)
Summary by Eric Revell
(Photo Credit: iStock.com / DanBrandenburg)
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