Bills
| 3.23.22

Should the Constitution Give Congress the Authority to Prevent the Desecration of the American Flag? (S. Joint Res. 49)

Do you support or oppose this bill?

What is S. Joint Res. 49?

(Updated January 18, 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.

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. 49

A CBO cost estimate is unavailable.

Additional Info

In-Depth: Sponsoring Sen. Steve Daines (R-MT) reintroduced this resolution from the 115th Congress to amend the Constitution to give Congress the authority to prohibit the desecration of the American flag. In a press release, he said: 

"Our United States flag is a timeless symbol of liberty that tells the story of America, the story of our enduring pursuit of freedom. Remembering the sacrifices of all who carried its colors into battle, our nation should always render the flag the honor and dignity it is due.”

Original cosponsor Sen. Kevin Cramer (R-ND) adds: 

"A flag worth dying for is a flag worth protecting. 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.”

When he introduced this resolution in the 115th Congress, Sen. Daines said:

“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.”

In remarks on the Senate floor on June 14, 2018, Sen. Daines commemorated Flag Day by highlighting this resolution, recognizing American veterans' sacrifices and issuing a report detailing 50 recent offensive acts on the American flag. During his speech, Sen. Daines said, "Our flag should be protected in honor of the countless American service members who have paid the ultimate sacrifice to defend it... Our veterans are the best example of why America is the greatest country on earth and why our freedoms and liberties are worth defending."

Rep. Steve Womack (R-AR), sponsor of a House joint resolution, H.J.Res.65, that mirrors this resolution's language, says: 

“Our flag is more than a cloth painted red, white, and blue. It is a symbol of worldwide freedom, unity, and liberty. It has guided troops into battle, flown during our triumphs and challenges, and is placed over the caskets of those who have paid the ultimate sacrifice. Generations have fought to defend our stars and stripes – and the American people have simply given too much for the flag to not have the ability to protect it.”

President Trump expressed his support for this resolution in a tweet on June 15, 2019. He tweeted, "All in for Nobody should be allowed to burn the American flag - if they do, there must be consequences - perhaps loss of citizenship or year in jail!" on November 29, 2016.

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."

Katherine Timpf, a reporter for National Review Online, argues that keeping flag-burning legal is an act of patriotism that expresses support for the First Amendment: 

"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."

Writing for the Daily Wire, political analyst Frank Camp contends that criminalizing flag burning would "blight the First Amendment": 

"The American flag is a symbol of liberty, virtue, and sacrifice, and few Americans have any desire to see it trampled or burned. However, to criminalize the desecration of the American flag would be to blight the First Amendment, which was designed to safeguard our freedom to express  viewpoints, especially those that may be regarded by the majority of citizens as disagreeable or even revolting. Even in the face of the Supreme Court’s rulings and the general principles established in the First Amendment allowing the freedom of expression, there are still those who don’t believe that burning or otherwise damaging the American flag should be a constitutionally protected act. Yet the long arms of the federal government are always reaching, and each time we loosen the chains that bind them, whether it’s in exchange for safety or, in this case, a perceived virtue, they will try, and often succeed, at taking much more than they have been given. If we are willing to allow the government to dictate what we can and cannot do with  American flags, what other personal property are we willing to have the government deem untouchable?"

This resolution has seven Republican Senate cosponsors. Its House companion, H.J.Res.65, sponsored by Rep. Steve Womack (R-AR), has 17 Republican House cosponsors. 

Last Congress, this resolution had the support of 13 Republican Senate cosponsors and didn't receive a committee vote. An identical House resolution, H.J.Res.61, sponsored by Sen. Womack with 31 Republican cosponsors' support, also didn't receive a committee vote.


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, 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.”

Before the Court's decision, 48 states had laws on the books banning flag desecration.


Media:

Summary by Eric Revell

(Photo Credit: DanBrandenburg / iStock)