A proposed constitutional amendment prohibiting the desecration of the American flag did not pass in the U.S. Senate June 27 by a vote of 66-34, one vote short of the two-thirds majority needed to submit the bill to the states for ratification, according to the Library of Congress.
If ratified, S.J. Res. 12 would have become the 28th amendment to the Constitution, giving Congress the power to criminalize any form of flag desecration. Although the House of Representatives approved the bill on June 22 in a vote of 286-130, some citizens and organizations consider flag desecration to be a form of political speech that is guaranteed by the First Amendment.
“We should be reluctant to diminish our freedom,” said Stan Landes, CSUN professor who specializes in First Amendment law. “Our constitution gives us the right to have political expression protected.”
The proposed amendment that stated “The Congress shall have power to prohibit the physical desecration of the flag of the United States,” was sponsored and reintroduced to the 109th Congress by Sen. Orrin G. Hatch (R-UT) on April 14, 2005. According to Senate records, every Congress since 1995 has attempted to pass the flag desecration amendment and although it has successfully passed the House of Representatives each time, it has fallen short in the Senate.
In the final vote, 52 Republicans and 14 Democrats voted for the passing of the amendment, while 30 Democrats, three Republicans and one Independent voted against it.
In California, the two Democratic senators were split. Sen. Dianne Feinstein voted for the measure while Sen. Barbara Boxer voted against it.
Among the bill’s other supporters were Sen. Jon Kyle (D-AZ), Sen. Mary Landrieu (D-LA), Sen. John Cornyn (R-TX) and Sen. Pete Domenici (R-NM). Opponents included Democratic Sen. Hillary Clinton of New York and Sen. Jack Reed of Rhode Island, and Republican Sen. Robert Bennett of Utah and Sen. Mitch McConnell of Kentucky.
Although this year’s attempt was the closest it has ever been to passing the amendment. Opponents, such as the American Civil Liberties Union, are relieved by its defeat. In a letter sent to the Senate prior to the vote by ACLU Director Caroline Frederickson and Senior Lobbyist Terri A. Schroeder, senators were asked to vote against the resolution. They wrote: “We urge you to defend the fundamental liberties that our flag and other cherished symbols represent by opposing this amendment because it would cause needless injury to the Bill of Rights.”
The letter also sited Supreme Court Justice William J. Brennan in his ruling of Texas v. Johnson in 1989 where he said. “if there is a bedrock principle underlying the First Amendment, it is that government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.”
Sharing the sentiments of the ACLU, Landes also said that it is not in the best interest of the American people to worry about a flag desecration amendment while much more pressing issues should take precedent, such as health care and foreign affairs. A great advocate of the protection of political speech,
Landes believes that freedom is the overriding symbol of America, not the flag.
“The fabric of American life is far broader than any piece of cloth, even one decorated with stars and stripes,” he said.