Proposed Amendment #5: Flag Desecration Amendment

The Supreme Court issued one of its landmark decisions in 1989, Texas v. Johnson, in which the burning of the American flag was protected as free speech under the First Amendment of the U.S. Constitution. The Congress responded by passing the Flag Protection Act, and the Supreme Court followed up by declaring the new congressional act unconstitutional and reaffirming the right to burn the flag in U.S. v. Eichman in 1990.

Since these decisions, the issue of flag burning has been an open soar festering on the American psyche. We are conflicted in that we want to respect the rights of minorities and individuals, especially rights as fundamental as free speech and the ability to protest governmental policy and action. Yet we also hate this particular form of speech because it cuts to the very symbolism of who we are as a nation and a people, a legacy of which we are, in general, very proud.

Congress responded throughout the 1990's by attempting to pass a constitutional amendment that would outlaw desecration of the flag. While the overwhelming majority of Americans and members of Congress supported the proposed amendment, a passionate minority spoke out and campaigned against the flag burning amendment. It was defeated or killed several times in the Senate after passing in the House of Representatives.

There are several problems with the proposed amendment considered by the Congress, the chief of which is how to craft a legal definition of a flag that wouldn't turn U.S. Attorneys into petty prosecutors and make us the laughing stock of the world. Would a T-shirt with an American flag on it be covered by the proposed amendment? If I threw such a T-shirt away, would that be considered a desecration of the U.S. flag? What if I had a bumper sticker of the flag on my car, and the sticker got scratched? Would I then be subject to prosecution?

While these hypotheticals might seem silly or far-fetched, they are not outside the realm of imagination, so people in power could twist the provisions of such an amendment if they wished to make political rivals go away. Or at the very least, to make life inconvenient for them. So the trick might be to craft constitutional wording that would express the importance of the flag as a symbol of America and her ideals while confining what might be considered a flag for the purposes of the amendment to a few, well-defined set of objects, such as flags that have actually flown over U.S. government installations (e.g., embassies, forts, legislative chambers, courthouses, etc.) or used in U.S. service (e.g., in military action, handed over to U.S. veterans or families, etc.). This last hedge would protect the provisions of the amendment from being used for blatantly political purposes while protecting the right of an individual or group to burn other representations of the U.S. flag in protest (or other actual U.S. flags that the burner owned or made himself). In short, the American people would be able to enshrine the importance of our flag as a symbol of the United States in a way that does not abridge individual's First Amendment rights.

With these purposes in mind, we would propose the following wording for a Flag Desecration Amendment to the U.S. Constitution:

Congress shall have the power to prohibit the physical desecration of any flag of the United States that has flown in an official capacity over United States property.