House approves flag amendment for 4th time in 6 years

Wednesday, July 18, 2001

Gregory Nojeim, ACLU

The House narrowly passed a constitutional amendment yesterday that would grant Congress the ability to craft flag-protection laws, marking the fourth time in six years the measure has cleared that chamber.

Amendment opponents were heartened by the 298-125 vote, noting that the tally dropped considerably from past votes. The measure cleared the floor with eight votes to spare. Two-thirds of the House, or 290 votes, are needed in the House to pass constitutional amendments.

“Today's vote shows that the movement to amend the Bill of Rights is in serious decline,” said Gregory Nojeim, associate director of the American Civil Liberties Union's national office. “The bottom line on today's vote is that more members of Congress than ever have recognized their duty to protect the freedom to dissent in America.”

But Ret. Maj. Gen. Patrick Brady of the Citizens Flag Alliance, an American Legion offshoot and the leading proponent of flag protection, claimed victory as well. Brady said the vote drop hardly impairs this “step toward preserving one special symbol for the ages.”

Yesterday's vote on H.J. Res. 36 capped the measure's quick tour through the House. The amendment passed through earlier sessions of Congress with considerable fanfare, with supporters enlisting such celebrities as Tommy Lasorda, John Schneider, Pat Boone and a former Miss America.

This time, backers quietly introduced the two flag-amendment resolutions — S.J. Res. 7 and H.J. Res. 36 — last March. The proposed amendment reads: “Congress shall have power to prohibit the physical desecration of the flag of the United States.”

Because the measure is a constitutional amendment, it must be approved in both the House and the Senate by a two-thirds majority vote and ratified by three-fourths of the state legislatures. Although the House has consistently approved the amendment, the Senate has killed the measure every time.

Last year, the House approved the amendment with a 305-124 vote, while the Senate voted it down 63-37, four shy of the required two-thirds majority. To date, 49 state legislatures have passed non-binding resolutions urging Congress to send the amendment their way for ratification.

Proponents of flag protection support the amendment, saying it is the only way to keep the U.S. Supreme Court from striking down laws forbidding desecration of the flag. And they claim that flag desecration stands outside the forum of legitimate speech because of the special place the banner holds in the heart of Americans.

But groups such as the ACLU, the American Bar Association and People for the American Way contend that an amendment to protect the flag strips away core First Amendment principles such as the right of assembly and the right to free speech.

Yesterday, Rep. John Conyers, D-Mich., led floor opposition to the amendment, prefacing his comments with a rhetorical question about why the House repeatedly considers the issue despite its consistent failure in the Senate.

“Why doesn't the other body take this measure up first for once instead of us?” Conyers asked.

Flag debate hasn't begun this year in the Senate, and it's possible that the body, following a recent shift in power, might not even consider the flag amendment this session. Vermont Sen. James Jeffords' departure from the Republican Party resulted in a restructured Judiciary Committee that might keep the amendment from coming to a floor vote.

Faced with yet another flag-amendment debate in the House yesterday, Conyers said he would offer the typical “boilerplate language” of an amendment opponent who has to defend his patriotism.

“I abhor desecration of the flag in any form,” Conyers said. “But I am strongly opposed to this resolution because it goes against our ideals and elevates a symbol of freedom over freedom itself.”

Rep. Randy “Duke” Cunningham, one of the sponsors of the amendment, said the measure would restore some 200 years of flag-protection tradition stretching back to the likes of Thomas Jefferson and James Madison. The amendment bolsters freedom, he said, and primes a 225-year-old republic for longevity and respect.

“I don't believe that a threat to this nation comes from a bomb,” said Cunningham, R-Calif. “I do believe the threat to this nation comes from within.”

But Rep. Ron Paul, R-Texas, said Congress couldn't legislate respect and responsibility through measures such as a flag amendment. He said the measure recalls efforts in Cuba and China to forbid flag desecration.

“That's some of the company we're keeping if we pass this amendment,” Paul said during debate. “I do think this is about responsibility, but you can't reject rights for responsibility. You can't reach patriotism through authoritarianism.”

Rep. Christopher Shays, R-Conn., urged his colleagues to reject the amendment, describing the measure as “an overreaction to a non-existent problem.”

“I don't think we should allow a few obnoxious attention-seekers to push us into a corner, especially since no one is burning the flag now without an amendment,” Shays said.

One opponent of the amendment, Rep. Mel Watt, D-N.C., offered a substitute resolution that would allow Congress to pass flag-protection laws provided they remain consistent with the First Amendment. Watt's proposal failed 324 to 100.

But Rep. James Sensenbrenner, R-Wis., faulted the amendment, saying it “punts the issue back to the Supreme Court.”

There, Sensenbrenner and other supporters say, the court would make the same mistakes it made in Texas v. Johnson and U.S. v. Eichman when it determined on 5-4 votes that flag-protection laws violate the First Amendment.

Sensenbrenner said flag-protection laws don't violate the First Amendment and fall in line with laws that forbid libel, obscenity and incitement. Flag burning is action, he said, not speech.

Bobby Scott, D-Va., said the flag laws tackle speech, not action. He noted that Americans burn thousands of damaged flags every year because flag etiquette requires them to be disposed of that way. But when protestors burn the flag in a similar manner but add words of dissent, they could be prosecuted.

“You say something nice while you burn the flag, that's OK,” Scott said. “But if you say something that offends the local sheriff as you burn the flag then it would be illegal. This is nothing less than an attempt to suppress speech and government officials should not be in a position of deciding which speech is good and which speech is bad.”

And a former flag-amendment sponsor, Virginia Democratic Rep. James P. Moran Jr., announced that he had changed his mind and now opposed the effort.

“When I was first elected to the House, I co-sponsored the flag burning amendment,” Moran was quoted by The Washington Post as saying on the House floor. “And yet looking back, I was moved by my heart more than my head. History informs us that the strength of America is derived from its basic ideals, one of the most important of which is tolerance for the full expression of ideas, even the most obnoxious ones.

“For more than two centuries, the First Amendment to the Constitution has safeguarded the right of our people to write or publish almost anything without interference, to practice their religion freely and to protest against the government in almost every way imaginable. It is a sign of our strength that, unlike so many repressive nations on earth, ours is a country with a constitution and a body of laws that accommodates a wide-ranging public debate. We must not become the first Congress in U.S. history to chill public debate by tampering with the First Amendment.

“Flag burners are generally scoundrels. On that much we would agree. But we ought not give them any more attention than they deserve. … This amendment should be defeated in our national interest, regardless of the consequences to our personal and political interests.”

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