Constitutional Amendendment Issue
On Thursday May 25th, 1995, a proposed constitutional amendment that would make it illegal to burn
the American flag passed its first test. The amendment passed the Constitution subcommittee
7-5 and went on to the full Judiciary Committee.
The proposed amendment is:
The amendment is in response to Supreme Court rulings in 1989 and 1990 that struck down
federal and state statutes prohibiting flag desecration, holding that those laws infringed on
the right to free speech and expression under the First Amendment. Supporters of the amendment
say the flag deserves special protection because it symbolizes freedom and unites a diverse
country. Opponents say burning the flag is a form of free speech and should be protected -
a position the U.S. Supreme Court has taken. If the amendment is
adopted by the Senate and ratified by the states, it would be the first revision to the Bill
of Rights since it was passed in 1792. Although passage is not assured, it is clear that
arguments based on constitutional principles will have a formidable opponent in the emotional
appeals of the amendment's champions.
"The Congress and the states shall have power to prohibit the physical desecration of the
flag of the United States"
On Wednesday June 28th, 1995, the full House approved the amendment, the vote being 312-120,
with 93 Democrats joining 219 Republicans in the majority, while 12 Republicans sided with
107 Democrats and the chambers lone independent in opposing the measure. The measure went on
to the Senate Judiciary Committee where it was approved 12-6 on July 20th,1995. A two-thirds
majority in the full Senate is necessary to pass a constitutional amendment. If passed by the
Senate the measure would then need to be ratified by 38 of the 50 states within seven years
to add the language to the Constitution. It is not subject to a presidential veto.
By Tuesday December 12th,1995, the Senate was ready to vote on the measure, with the vote being
63-36 in favor of the amendment, three short of the two-thirds needed to propose an amendment
for ratification by the states.
"Isn't it ridiculous that the American people are denied the right to protect their unique
national symbol in the law?" said Senate Judiciary Committee Chairman Orrin G. Hatch, (R-Utah),
floor manager for the proposed amendment. To fail to protect the flag demeans it, he said.
Opponents argued that flag burnings are extremely rare, with the Congressional Research Service
reporting three incidents last year and none the year before - hardly enough, they said, to
merit an assault on free-speech rights guaranteed by the First Amendment. "The flag is
important but the freedom of speech is more important," said Minority Leader Thomas A. Daschle
President Clinton opposed the amendment, although aides said he would be open to legislation
banning flag desecration, rather than changing the Constitution. Hatch blamed Clinton for the
amendment's defeat and said it will be introduced again.
Learn more about both sides of this issue and contribute to the discussion at a Web site
not in favor
of the proposed amendment and one
in favor of it.
Letters From Flag Page Visitors
I read with interest the letters on your Flag web page, and while people who
want a flag burning amendment suggest how wonderful this country is, and those
who do not suggest how awful this country has been, I believe both have missed
Following is my take on the matter, which was published in the Tri-County News
under my byline, when I was a columnist for that paper. (Grand Blanc,
When Joe Friday would arrest someone, he'd read the suspect
his rights. "You have the right to remain silent. You have the
right to an attorney..." There isn't a sofa spud in this country
who doesn't know those lines. The troubling thing is, does anyone
really know what a "right" is anymore?
Discussion of a Constutitional amendment to ban the burning of
the American flag is what makes me wonder.
Now, I love the Constitution. I think it is a
wonderfully strong and yet flexible document for republican
government, and I admire and marvel at the philosophy behind it.
But what worries me--what frightens me, in fact--is that few seem
to understand that philosophy anymore.
The purpose of our government, as proposed by the Founding
Fathers, is to protect the rights of individuals. These rights, to
quote an early draft of the Declaration of Independence, are truths
which are "sacred and undeniable." And the rights we all possess
are "inherent and inalienable."
What rights are those? The right to freedom of speech and
religion, right? The right to keep and bear arms. The right to a
just trial by a jury of our peers. And so on. Those and other
rights are mentioned specifically in the first ten amendments to
our Constitution, in a section called The Bill of Rights.
But does anyone remember why those are rights? There's a
philosophy behind those ideas. All those rights have something in
common--they all seek to assure that no innocent individual is forced
against his will.
That is really the only right--the right from which all others
stem--the right to be free from the initiation of physical
You have a right to speak freely because doing so does
not force someone to listen. You have a right to own a firearm
because merely doing so does not kill someone. You have the right
to remain silent if arrested--because you're not initiating the use
of force on someone if you do.
You DON'T have the right to steal from me, because you're
initiating physical force on me if you do. You DON'T have the right
to take my life, because I own it and it's an initiation of
violence to kill me. You DON'T have the right to keep me from
owning a rifle, because you'd be initiating the use of force to do
that. And you DON'T have the right to keep me from speaking,
because you'd have to use your fist or a gun to do that.
So what right is being protected by an amendment which bans
flag burning? Where is the violence initiated? And against whom?
Against no one. Flags don't have rights, only people do, and
while I agree that burning the flag is offensive, individuals don't
have the right to not be offended. If they did, we could outlaw
liberals, couldn't we? And if they were back in power they could
outlaw us. Is that what we want? Arbitrary banning of thoughts
and ideas? Limiting free speech because we don't like the message?
If you want to limit the speech or actions of others because
opinions offend you, then how long do you think you have before
your opinions are censored because others find them offensive as
Liberty, despite what some may think, is a very concrete
concept. To have it means to possess the ability to do as you
wish, without infringing upon someone else's self-same right.
Our flag is a symbol of that liberty, and in fact is a symbol
of our right to burn it if we see fit. If a law is passed which
says I can't, I'll be the first one taking a match to the stars and
How could I despoil that which I love? Because nothing could
possibly desecrate that symbol more than a law which contradicts
everything for which it stands.
Save Old Glory From CyberArson
While I understand your awesome patriotism and closely represent the same values, I
believe that your essay seems to miss a couple of very important points that also
support our heritage. Before I continue, let me say that I am very impressed with
the clarity of your message through your World Wide Web page. But, while I support
your right to broadcast your views, and I even support those views in most cases, I
cannot endorse your belief that the Constitution of the United States of America
should be amended with an exception to the First Amendment!
God bless you, and may the ideals of our founding fathers shine through these
I know that my response to your WWW page is long, but although I appreciate your
interpretation of the First Amendment and applaud your patriotism, I would like to
point out the fact that the proposed flag burning amendment is not ONLY
unconstitional but also in direct conflict with the ideals of freedom and historical
origin of this country.
First, of all, the Bill of Rights insures, without reservation or equivocation,
every person's right to freedom of expression. More importantly, the Bill of Rights
actually gaurantees that this GOD GIVEN right shall not be abridged by the congress
of the United States. There is no exception to our freedom of expression!
Obviously, the congress has passed laws which, from a specific point of view, seem
to abridge free speech. These laws are intended to protect citizens from harm,
whether physical or emotional. It has been the business of the Supreme Court to
decide the constitutionality of these laws, deciding whether acts deemed illegal by
congress are truly expressions of opinion or just malicious behavior. But, in cases
where the endeavor in question can be reasonably construed as expression, I always
fall back on the words of a man very influential to the framing of the founding
doctrine of our country, Benjamin Franklin, A man who gives up some of his freedom
in pursuit of security deserves neither security nor freedom!
Even given the monstrosity of flag-burning according to people like you and me who
love this country, Old Glory, and all the ideals they represent, we must by
definition grant that the burning of the flag is an expression. Yes, it is an
expression which we may find unthinkable and extremely demeaning to our values, but
it IS an act of speech, protected by the First Amendment.
There is a belief that flag burning is an issue beyond free speech and the First
Amendment. Why do many believe this to be true? People say that the flag
represents our country‚s freedom, our way of life, and American patriotism. I do
not argue with this, in fact I feel that anyone who truly espouses these ideals can
also fend off philosophical attacks on them and also defend the right of the
person(s) to critique them.
>From a historical point of view, it is offensive to come back to the basis of our
great founding doctrine and claim there are exceptions to those statements which
were made so resolutely and have withstood the test of over 200 years. The undying
strength of our country and our way of life is firmly entrenched in the simple, yet
well-structured Bill of Rights to the United States Constitution. How can any group
of people, though well intentioned, conceive to make deviations to this perfect
definition of the United States and claim to represent the People or the U.S.
The basis of the Bill of Rights was a set of unbending, absolute, freedoms that we
are given to by God. The First Amendment - protecting religious practice,
expression, journalism, peaceful assembly, and petitioning the government for
redress of grievances - was established with a personal history of these rights
being demolished. The founding fathers put in writing ideals for every person in
the world to believe in and model. They knew that, to protect any single instance
of these rights, government oppression must be subdued so that no other case could
The present realities of our country have brought into question our morals, our
ethics, and the motives of our government - both elected and appointed. Let us
not further question our ideals by breaking down the foundation of those ideals to
appease those who are insulted by the actions of others. This amend-ment, while on
the surface almost seems reasonable based on defending the symbol of our country, is
actually a symptom of a cancer that threatens to blow a hole in our ideals as a
country. Should we adjust our ideals to fit society, or do we adjust society to fit
our ideals? Given that our ideals of society (beyond religion) are based on those
same ones scribed by Jefferson, Adams, Franklin, etc., the choice is obvious!
I know it is an often over-used theme attributed to the őradical, extremist right‚
in our country, but I must say it: If we allow this one exception to the
Constitution, what is to stop the landslide of exceptions following this precedent?
Are we to turn into criminals everyone who carries a gun, sell off the property of
someone just because he is accused of dealing in drugs, or allow police to freely
charge through the home of private citizens without a warrant or with a warrant of
questionable or generalized search provisions?
Precedents are the basis of change and consist of good ones and bad ones, as
determined by the subsequent deeds which claim kinship of that precedence! The
generalized logic of this precedent and the thought of revising an ideal so simple
should bring defenders of the U.S. Constitution to attention. It was Thomas
Jefferson who warned us that government is subject to the people but „...eternal
vigilance is the price of liberty!
Let us assume that this proposed amendment was passed and implemented into the
Constitution! This, by design, allows legislative bodies across the country create
laws that prohibit people from desecrating the Flag of the United States. OK, this
is what you want, right? Well! Get ready for the extreme onslaught of legal
attacks that pull and yank the boundaries of these laws... if „flag burningš is to
become illegal, who decides: Is the flag considered to be nylon-material on a
flag-pole or is it any representation of Old Glory that we all know and love? Is
virtual flag burning going to be illegal? Finally, after virtual flag burning and
drawing pictures of flags burning is illegal, will it be a felony to talk about
burning flags? Am I being unreasonable? I certainly think not, because these
challenges are going to come VERY fast!
My final point is that arguments in favor of this amendment to the Constitution
reflect the belief (from my view) that the flag itself is sacred. Nothing can be
further from the truth! The flag serves only to remind us all those things which
make our country great. No soldier, though possibly disillusioned to the contrary,
has ever fought in battle to protect Old Glory. They have fought to protect the
ideals of our Constitution and our way of life. Consider these questions:
1) If the Flag of the United States of America is so important that we must
protect it from physical desecration, why has it gone through so many
changes? As states have been added to our Union, stars are added to
represent them. Why do the armed forces display the flag when in
battle? There is destruction in nearly every battle, and we cannot
expect Old Glory to survive every one unscathed!
2) What is truly more important and worth protecting? The United States of
America - the people, the Constitution, and our freedoms - or a symbol
which represents these things to most people? Given a choice between a
physical thing and a person‚s life or freedoms, the thing loses EVERY
time!!! Even if the thing is symbolic of great ideals, I know in my
heart that destruction of that physical thing IN NO WAY diminishes those
William A. Smith
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