The Constitution should give Congress the authority to prohibit the desecration of the American flag.
The Constitution needs to continue to protect the right of Americans to desecrate the American flag.
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.
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.
In-Depth: Sponsoring Sen. Steve Daines (R-MT) introduced this bill to amend the Constitution to give Congress the authority to prohibit the desecration of the American flag:
“The American flag has been a symbol of hope and freedom for centuries and ought to be respected. Our nation’s flag must be set apart as a protected symbol worthy of honor.”
Daines’ 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 Texas v. Johnson that flag burning is protected speech under the First Amendment. In a 5-4 decision, Justices William Brennan was joined by Justices Thurgood Marshall, Harry Blackmun, Antonin Scalia, and 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.”
Two of the dissenting justices — Sandra Day O’Connor and Byron White — joined an 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.”
This legislation has the support of 11 cosponsors in the Senate, all of whom are Republicans.
Media:
Summary by Eric Revell
(Photo Credit: DanBrandenburg / iStock)
