Senate turns down flag amendment

Wednesday, March 29, 2000

WASHINGTON — The Senate today narrowly defeated a proposed constitutional amendment that would ban flag desecration, but sponsors vowed to continue their fight in the next Congress and beyond until the provision is approved and added to the Constitution.

Although the flag amendment received 63 affirmative votes, a constitutional amendment requires a super-majority of two-thirds, or 67 votes if all 100 senators are present and voting. The 63 votes were the same as in 1995, the last time the Senate considered the measure; 36 senators opposed it that year, with one not voting. The flag amendment received only 58 votes when it was voted on in 1990.

“The flag amendment reflects the will of the people, and it will pass the Senate,” Sen. Orrin Hatch, R-Utah, chairman of the Senate Judiciary Committee and chief sponsor of the amendment, told the Senate shortly before the vote. “It may not pass the Senate today, but it will pass the Senate (eventually). This trend (of more affirmative votes) will continue until we get the 67 needed for passage.”

The 63-to-37 Senate vote marks the end of the flag debate for this session of Congress. The House had approved the flag-desecration amendment last year by a wide margin, and the House also had voted in favor of the proposal in 1995 and in 1997. But both chambers must approve a proposed amendment during the same term of Congress before it can be sent to the states for ratification. So supporters now must begin their campaign to pass an amendment anew next January when the 107th Congress convenes.

Had the amendment passed the Senate, it would have needed the approval of three-fourths of the state legislatures before it could be added to the Constitution. That ratification was considered likely because 49 legislatures already have passed resolutions calling on Congress to approve such an amendment.

Despite Hatch's arguments that the only way to protect the flag was by changing the Constitution, opponents said such a move was extreme.

Sen. Robert Byrd, D-W.Va., one of the chamber's most senior members and an expert on the Constitution and Senate history, told his colleagues he had changed his position on the flag amendment because he had concluded it had no place in the Constitution.

“Despite my love for the flag and my commitment to our nation's veterans, I regret I cannot support this well-intentioned amendment,” Byrd said.

The West Virginia senator had announced his change of position the previous day at the annual convention of the American Legion in Washington. Byrd, who was given the veteran's group's distinguished public service award, told the Legionnaires he had become increasingly wary of tampering with the Constitution to deal with a problem that can best dealt with by statute, according to The Washington Post.

The American Legion has been the lead group lobbying for the constitutional change, and the Senate's consideration of the flag amendment was timed to coincide with the group's convention here.

Today, Byrd told the chamber that although flag desecration was “deeply offensive,” an amendment addressing flag-burning “would in fact be out of place in the skeletal document which lays out the basic structure of the federal government” and protects the fundamental liberties of the people. It is the Constitution, not the flag, that matters the most, Byrd said.

“The flag is the symbol of the Republic, the symbol of what the Constitution provides,” Byrd said. “It is not the flag that provides it. It is the Constitution of the United States. It is that Constitution that provides us with the rights that all Americans enjoy, regardless of race, regardless of color, regardless of national origin, regardless of sex. It isn't the flag.”

Senate Majority Leader Trent Lott, R-Miss., a supporter of the amendment, disagreed.

“The American flag is a sacred, basic, fundamental symbol of our nation's ideals, the symbol of those fundamental values for which we have asked our young men and women to fight and die,” Lott said. “Allowing the desecration of our national symbol is not a sign of strength, it's a sign of self-indulgence.”

But Byrd said veterans “didn't die for the flag. They died for what that flag represents.”

Sen. Patrick Leahy, D-Vt., noted that if the amendment prevailed, it would mark the first restriction in the individual liberties outlined in the Bill of Rights in the nation's more than 200-year history. “These are matters of enormity that go to the very survival of our nation,” Leahy said, and those changes should not be made because of “passing political favor.”

Other opponents pointed out that the 1960s, when many instances of flag-burning occurred, had long passed, and that a change in the Constitution would be an overreaction to a non-problem.

“Flag-burning is rare, thank God,” said Sen. Christopher Dodd, D-Conn. “It is despicable, it is reprehensible, but it does not present a constitutional crisis for our nation. You cannot mandate, you cannot legislate patriotism. … We can change laws, but we cannot change hearts by changing laws.”

Byrd said that instances of flag-burning were “hardly pervasive enough to warrant amending the Constitution of the United States.” He said he feared that the primary effect of a constitutional amendment would be “more, not fewer, instances of flag desecration,” and that any protection of the flag should be handled through a federal law rather than in the Constitution.

Despite the vows of Hatch, a prominent conservative, to fight on until the amendment is approved, there were some signs that the movement might be losing some steam. The Washington Times, a respected voice of the conservative movement and frequent supporter of veteran's groups, has editorialized against the flag-burning amendment, and Pat Robertson, a prominent Christian conservative, also spoke out against the amendment in his “700 Club” television program.

Robertson noted the remarks yesterday by Sen. Robert Bennett, R-Utah, who called flag desecration a rarity, noting more than 30 years had passed since the Vietnam War protests that featured frequent flag-burnings.

“I think Sen. Bennett is right on this,” Robertson said during his television program. “This is an issue that came up 30-some years ago, and it's time to get on with it. I mean, we don't have people burning the flag today. I know we're horrified by it, the desecration of the symbol that stands for these United States. But nevertheless, this is not something we need to put into the Constitution. … I think Congress just ought to leave it alone.”