Bad idea of the year: Constitutional amendment to prohibit flag burning

June 16, 2019 • 12:15 pm

According to his website, two days ago U.S. Senator Steve Danes of Montana (a Republican, of course) introduced not a law, but a proposal for a Constitutional amendment to allow congress to prohibit the burning of the U.S. Flag. It was co-sponsored by U.S. Senators John Cornyn (R-TX), Johnny Isakson (R-GA), Mike Crapo (R-ID), Lindsey Graham (R-SC), Dean Heller (R-NV), Chuck Grassley (R-IA) and Orrin Hatch (R-UT).  Not a Democrat in the lot, and that’s no surprise.

Here’s the text of the amendment (full pdf here):

Wikipedia recounts the failed history of legislation to prohibit the burning of flags, beginning in 1968 when, as I remember well, protestors against the Vietnam War engaged in frequent flag-burnings. Then Congress passed a “flag protection act,” as did 48 of the 50 states, but the federal law was overturned by the U.S. Supreme Court. It was a narrow vote—5-4—by a liberal court, but was decided on First Amendment grounds, with flag-burning construed as protected speech. As Wikipedia notes:

The decisions were controversial and have prompted Congress to consider the only remaining legal avenue to enact flag protection statutes—a constitutional amendment. Each Congress since the Johnson decision has considered creating a flag desecration amendment. From 1995 to 2005, beginning with the 104th Congress, the proposed amendment was approved biennially by the two-thirds majority necessary in the U.S. House of Representatives, but it consistently failed to achieve the same constitutionally-required super-majority vote in the U.S. Senate. During some sessions, the proposed amendment did not even come to a vote in the Senate before the expiration of the Congress’ term. The last time it was considered, in the 109th Congress, the Amendment failed by one vote in the Senate. Some Senate Republican aides indicated that almost a dozen of the Republican senators who voted for the amendment were privately opposed to it, and they believed that these senators would have voted to defeat the amendment if required

Now, of course, we have a much more conservative Supreme Court, but before the Court could even take up this case, a flag-burning Constitutional Amendment would have to become law, which means that beyond a 2/3 affirmative vote in both houses of Congress, it would then have to be ratified by 3/4 of the states.

That would take time, and it’s pretty clear that this amendment is just virtue-signaling (Wikipedia says that in the 2005-2007 Congress, “almost a dozen of the Republican senators who voted for the amendment were privately opposed to it”). It’s also clear that this really is a form of political expression and, so long as nobody gets burned or no other property is damaged, it’s the kind of speech that the First Amendment is designed to protect. Let us hope that this one, like all the others, will fail.

: Reader Scott sent this quote from the late, great Molly Ivins:


51 thoughts on “Bad idea of the year: Constitutional amendment to prohibit flag burning

  1. Funny thing is that anyone who pays attention knows that this sort of thing, where, rather than protecting property, laws protect the “person” of the state, is characteristic of socialist economies.

  2. Trump/GOP desperately flailing around to find an issue on which to gain political traction. Their more substantial issues (e.g. tax breaks for billionaires) aren’t working for them, so fire up the culture wars.

    1. Yes, to those who claim the rightwing is a bastion of free expression, let them come to the flag-burning laws (or to the bluenose laws, or to the loyalty oaths, or to the sedition acts, or to the anti-syndicalism statutes, that predate them).

        1. “bluenose” is Yank slang for the prudes who favor censorship on the basis of sexual content and obscenity.

          A quintessential example would be Anthony Comstock, a US postal inspector who founded the Society for the Suppression of Vice.

          1. Thanks, I got that from another post of yours with a bit more detail. The word was obviously in your head, trying to get out.

  3. It will go nowhere. This is clearly a troll to get the people with Trump derangement syndrome to burn flags and make Trump look sane by comparison.

  4. The amendment we need is congressional term limits. Three terms in the House and two in the Senate is 18 years of ruling. After that, people should have to live under the laws they made.

    1. Mostly they do live under the laws they made, with or without term limits. That’s why so many of them go to the slammer.

  5. A perfect example of right-wing virtue signaling. The old West Wing TV show had a good bit on this:

    It is disgraceful that some individuals would desecrate the flag that our nation’s veterans fought so valiantly to protect. [More applause as she sits.]

    MAN 3
    Mr. President, it is imperative that we enact legal protections for our flag, and I rise in strong support for the flag desecration constitutional amendment.

    I’m sorry. I’ve actually been told that I have to go now. This is a debate that is obviously going to continue in town halls, city halls, state legislatures, and the U.S. House of Representatives. There is a population in this country that seems to focus so much time and energy into this conversation, so much so that I am forced to ask this question — is there an epidemic of flag burning going on that I’m not aware of?

    Secret Service Agents open the doors as Bartlet and his staff walk outside to the limos.

    I mean it, man, is there an emergency-level outbreak of flag desecration no one’s kept me posted on?

    You would honestly think there was an epidemic of flag burning going on, endangering countless lives in this country.

    1. And later on, Q tells Bartlett that it would be great for his ratings to support an anti flag burning bill but Joey Lucas (one of my favourite characters in The West Wing) says that actually people don’t care that much about it.

    2. Speaking of Aaron Sorkin-penned dialogue, this bit from The American President is right on the nose:

  6. The democrats should say – Okay, how about a compromise. Let’s add one more thing to that amendment and you can stop all the flag burnings you want. That addition would be to eliminate the 2nd amendment and allow any forms of gun control necessary. Do we have a deal?

    1. Yes, I like that. They’ll make it clear then that you can’t burn the flag — but it’s just fine to shoot it.

    1. “Desecration of the flag” suggests that the flag is “sacred”. Sacred is very much associated with religion.

    1. Yertle the majority leader won’t let a damn thing passed by the House so much as come to the Senate floor for a vote — not election security, not net neutrality, not firearm background checks, not climate change, not the Dreamers, nada. The Senate has become known as “McConnell’s graveyard,” and ol’ Mitch brags that he’s the grim reaper.

  7. Trying to ban symbolic things can make you look silly when you try to enforce your ban. It reminds me of the German occupation of Holland when orange marigolds (among other things) were illegal because the colour orange had a deep patriotic significance for the Dutch. But you can’t really ban carrots, so there were dilemmas and opportunities for looking ridiculous everywhere.

    1. the German occupation of Holland when orange marigolds (among other things) were illegal because the colour orange had a deep patriotic significance for the Dutch

      Weren’t the original creeds of carrots much more like parsnips with a yellow-creamy flesh and they were later bred to express the archetypal “carrot orange”. I wonder when that was? Perhaps after the introduction of the fruit called “orange” whose name got transferred to the reddish colour? But how much of the breeding of carrots came from the politics of the name, I’m not sure.

  8. Actually, the resolution was introduced on June 14, 2017. Two of the sponsors, Dean Heller and Orrin Hatch, are now no longer in the Senate. It hasn’t gotten anywhere, nor will it. It’s pure posturing for the Republican base.

  9. This issue is I think similar to another one.

    Legalize abortion; abortions go down. Criminalize flag burnings; flag burnings increase. If the real goal is to save the poor babies/ flags, then the wise thing for a sensitive soul to do is legalize both abortion and flag burning. Mission accomplished!

    If you’re really just hoping to punish and hurt The Wicked, though — then do the opposite.

  10. These flag-burning proposals arise recurrently. They’re naught but effete jingoism, the last refuges of cynical scoundrels.

    1. the last refuges of cynical scoundrels.

      Studiously avoiding the swear word “patriot”, I see.

      1. In the USA there’s a strong sentiment for freedom of speech (and freedom to own guns, etc.) so only the less educated minority here consider laws against flag burning to be patriotic.

        In the USA military you’re fully aware that you that one of the things you (might have to) fight for is the right to burn our flag.

    2. Did someone recently not point out that burning the flag is the only correct way to destroy it?

      Ha, found this through Google:

      The U.S. flag code states that the when the flag “is in such condition that it is no longer a fitting emblem for display, [it] should be destroyed in a dignified way, preferably by burning.”

      1. It’s perfectly all right when patriots do it. It’s only criminal when seditious commie hippies do it.



  11. Republicans love symbols of patriotism but aren’t patriotic. They want a law against burning the flag but won’t support one against taking help from a foreign government.

  12. Why restrict the amendment to burning? (Burning is prescribed by the American Legion, among others, as the proper means of disposing of a worn-out flag. Of course, who gets to say when a flag is worn out? The Powers That Be have made heroic efforts to preserve the War of 1812 Fort McHenry flag.)

    Include the wearing of the flag as an item of clothing. That’ll get Business’s attention.

  13. Look closely, everyone. The Right doesn’t care about free speech any more than the Left does. More people on the Right care about it <i<right now because those on the Right are the one’s without cultural power in the public square, but if that’s reversed, so too will be the position.

    Neither side has at their core a desire to protect your liberties and rights (except the Right’s clinging to ever-increasing gun ownership, which isn’t a good thing). Each side just wants power. Each side has their convictions. Each side doesn’t care about your rights if you oppose them.

    Remember how the Left was all about free speech and the Right was all about restricting things they thought immoral when the Right dominated culture? Now we’re just at the other side of the pendulum’s swing.

    In the US, the pendulum is never in the middle when it comes to the two parties; at least, not anymore. The only way it can be in the middle on policy and in the culture is if most of us stand there, unbowed by ideology and not subservient to any political culture. Unfortunately, it seems most people are running for the extremes of each side.

  14. What a waste of time. An amendment to restrict the likelihood of wildfire burning (e.g., by lowering global temperatures) might be a better project if one wants to restrict fire somehow.

    1. IIRC, a few years ago an attempt was made (and shot down) to pass a law making it illegal to lie in political campaigns. If a law can’t make it I gather that a constitutional amendment surely can’t. Perhaps a constitutional amendment outlawing political and business advertising bloviation. That might help reduce the likelihood of wildfires.

      “Yea, water quencheth fire, but the wind, only God can abate that.” (Read this years ago but don’t recall who said it. Googled it – no joy.)

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