Flag Burning and the Constitution

On June 27, 2006, the Senate failed to pass the Flag Desecration Amendment by one vote with 66 senators in favor of banning flag burning and 34 opposed to the amendment. The House of Representatives had already passed the amendment with more than 280 votes earlier in the summer of 2005. The combination of election year politics and a series of culture war proposals by the Republican Congress, including gay marriage and English as the official language of the United States, led to the attempted passage of the amendment. While the political argument for and against passage are fairly obvious, there is a strong legal argument against amending the constitution to prevent flag desecration, including flag burning during protests.

The core argument for those who oppose the flag desecration amendment is the First Amendment provision of a right to free speech, which is seen by many to include the destruction of symbols like the flag. The First Amendment defense is strengthened by the Supreme Court’s decision in Texas v. Johnson (1989), which stated that the idea of expressive conduct protected protesters burning the American flag from legal action. There is also a more far flung idea that the American flag can be purchased by an individual, making it private property and giving their flag burning the protection of private property inherent in the Fifth Amendment.

Those advocates of the passage of the flag desecration amendment rely on the historical tradition of the American flag as a symbol of freedom and democracy. As such a symbol, amendment proponents feel that it is sacrosanct and any desecration or destruction of the flag falls along a spectrum from undignified to traitorous. As well, local ordinances against starting fires in public spaces have been used to prevent people from burning flags as a public safety issue. These sentimental and technical arguments against flag burning pale in comparison legally to the power of the First Amendment and the well-defined position of the Supreme Court on this issue. However, there is nothing to say that in the future a more conservative leaning Supreme Court would not overturn the Texas decision. For the moment, it seems that flag desecration will remain a campaign issue for Democrats and Republicans who have failed to get substantive legislative agendas through Congress.