Senate debates protecting flag by statute

Monday, March 27, 2000

WASHINGTON — Proponents of a measure that would make flag-burning a federal crime argued today that dealing with instances of desecration by statute would be the best way to protect both the American flag and the U.S. Constitution.

As the Senate opened debate on a proposed constitutional amendment that would outlaw flag-burning, the first order of business was a substitute proposal by Sen. Mitch McConnell, R-Ky. The McConnell amendment, which will come to a vote tomorrow, would give the Senate the option of dealing with flag-burning by passing a law rather than taking the more extreme step of changing the Constitution.

“The American flag is our most precious American symbol, and we should be concerned about the desecration of that symbol,” McConnell said. “This debate is also about the Constitution, our most revered national document. We should be concerned about defending both of them.”

His amendment, which has eight co-sponsors including the Senate’s chief procedural expert, Sen. Robert Byrd, D-W.Va., prescribes a series of stiff fines and jail terms for individuals who engage in three types of flag desecration:

  • Anyone who destroyed or damaged a flag with the clear intent of inciting or producing violence or a breach of the peace could be fined up to $100,000 and/or jailed for up to a year.
  • Any person who steals an American flag that belongs to the United States and destroys or damages it could be fined up to $250,000, jailed for up to two years or both.
  • Any person who steals a flag and destroys it on federal property would also face a fine of up to $250,000, a maximum two-year jail term or both.

Sen. Bob Smith, R-N.H., said he opposed the McConnell amendment because “it is no substitute for real flag protection.”

“Why limit the desecration to just those instances?” Smith asked his colleagues.

He said that under McConnell’s proposal, it would be legal to burn a flag before a crowd that approved of flag desecration but illegal to burn the same flag before a crowd that would be upset by the act. “Why is it illegal to burn a Post Office flag but legal to burn one belonging to the hospital across the street? … It only criminalizes stealing and destruction on government property,” he said.

Smith also questioned whether McConnell’s measure would be accepted as constitutional by the Supreme Court or whether it would be ruled an unconstitutional restriction on free speech as guaranteed under the First Amendment. Previous efforts at outlawing flag burning by statute have been overturned by the high court, Smith said.

But McConnell replied that a series of legal experts had reviewed his measure and determined that it was “completely compatible with the First Amendment.”

“My amendment will pass constitutional muster,” McConnell said.

Sen. Robert Bennett, R-Utah, a co-sponsor of the McConnell amendment, said he was convinced it would be a mistake to try to deal with the issue of flag burning by changing the Constitution.

“The flag is a symbol. By itself, it is nothing more than a piece of cloth,” Bennett said. “The Constitution is more than a symbol. It is our fundamental basic law. Everything we do is measured against it.”

In addition, Bennett said, “We are dealing here with a non-issue. No one is burning the flag today in any discernible numbers. It is a non-issue that came out of the 1960s and 1970s. We are 30 years beyond when this was really happening.”

But Smith countered that flag-burning was “an aggressive and a provocative act. It is also an act of violence against the symbol of our country.”

“A constitutional amendment would enable Congress to punish the next flag burner or flag desecrator,” he said. “The flag enhances national unity, our bond for one another. When we lose the symbol of what we’re all about, we will lose this country.”

“Even if we’re wrong … and we don’t need this amendment, so what?” Smith said. “Let’s err on the side of caution and send a good message … that the flag is more than just a symbol. If we can salute it, we can protect it.”

The McConnell proposal, if approved, would be substituted for the proposed constitutional amendment outlawing flag-burning, meaning the effort to change the Constitution to protect the flag would be dead for this session of Congress. The House passed the flag-burning amendment by a wide margin last year, and it was still unclear today whether lawmakers would be receptive to a proposed statute against flag-burning instead.

If the McConnell amendment fails, the Senate would then be back to considering the proposed constitutional amendment. It would take a two-thirds margin or 67 “yes” votes if all 100 senators are present to approve the constitutional amendment, and sponsors are believed to be two or three votes shy of that total.

If approved, the flag-burning amendment would then go to the states for consideration. Three-fourths of the 50 state legislatures would need to approve it before it could be added to the Constitution.

A flag-burning amendment would mark the first time in the nation’s more than 200-year history that Congress had moved to restrict the freedoms outlined in the First Amendment.

“The Constitution should be altered only rarely and only when it is the only way to achieve a result we deem important and imperative to this country,” said Sen. Byron Dorgan, D-N.D. “America will be better served if we resist the temptation to change the First Amendment.”