Flag burning amendment

The "flag burning amendment", also known as the flag desecration amendment, refers to amendments offered to the United States Constitution to alter the First Amendment to allow Congress to ban the burning or desecration of American flags.

Had it passed in 2006, the amendment would have marked "the first time in 214 years that the Bill of Rights has been restricted by a constitutional amendment" and would have placed "the United States among a select group of nations that have banned flag desecration, including Cuba, China, Iran, and Iraq under Saddam Hussein."

Amendment Text
The most recent proposed flag burning constitutional amendments have used the following text:
 * "The Congress shall have power to prohibit the physical desecration of the flag of the United States."

Process
As an amendment to the U.S. Constitution, the measure must receive a 2/3 majority of both houses of Congress and then be approved by 3/4 (38) of the state legislatures. (More about amendments to the U.S. Constitution.)

Flag burning amendments in Congress
The flag burning amendment has been approved several times in recent years by the U.S. House of Representatives, but has thus far failed to pass the U.S. Senate.

Senate
The flag burning amendment failed to gain the necessary 2/3 majority in the U.S. Senate on June 27, 2006. The vote was 66-34 in favor, with Democrats voting against by 14-30 and Republicans voting in favor by 52-3. The amendment was sponsored by Sen. Orrin Hatch (R-Utah) and cosponsored by 59 senators, including all Republicans but Sens. Bob Bennett (R-Utah), Lincoln Chafee (R-R.I.) and Mitch McConnell (R-Ky.). The amendment was cosponsored by Democratic Senators Max Baucus (D-Mont.), Mark Dayton (D-Minn.), Dianne Feinstein (D-Calif.), Tim Johnson (D-S.D.), Mary Landrieu (D-La.), Blanche Lincoln (D-Ark.), Ben Nelson (D-Neb.) and Ken Salazar (D-Colo.). See also (Washington Post vote analysis.)

There was one amendment to the amendment offered by Sen. Dick Durbin (D-Ill.), which would have turned the constitutional amendment into a simple law and ban "flag desecration" only if it was done in conjunction with the destruction of federal property (if the flag belonged to the government), an incitement of violence or an attempt to intimidate someone. The amendment&mdash;also sponsored by Sens. Bob Bennett (R-Utah), Jeff Bingaman (D-N.M.), Barbara Boxer (D-Calif.), Thomas Carper (D-Del.), Hillary Clinton (D-N.Y.) and Joe Lieberman (D-Conn.)&mdash;failed 36-64.

House of Representatives
The flag burning amendment passed the U.S. House of Representatives on June 22, 2005. The vote was 286-130 in favor, with Democrats voting against by 77-117 and Republicans voting in favor by 209-12. The amendment was sponsored by Rep. Randy "Duke" Cunningham (R-Calif.) (who has since been convicted on corruption charges) and was cosponsored by 196 other representatives. (Washington Post vote analysis.)

There was one amendment to the amendment offered by Rep. Melvin Watt (D-N.C.). The amendment would have altered the constitutional amendment to require that any future ban on flag desecration authorized under the constitutional amendment still be consistent with the original First Amendment. (Amendment text.) The amendement to the amendment failed by a vote of 129-279, with Democrats voting in favor by 125-66 and Republicans voting against by 3-213.

Veterans in Congress and the flag burning amendment
Proponents of the amendment, including Sen. Feinstein, often cite in their arguments the idea that burning flags disrespects veterans. However, a review of the votes of veterans in Congress shows that while a majority do support the amendment, it is not an overwhelming majority. In fact, in the 2006 final Senate vote, 12 veteran senators voted against the amendment and 17 voted for it, which was a closer split (41 percent opposed, 59 percent in favor) than the overall Senate vote. The 2005 final House vote was less evenly split, with 20 veteran representatives against the amendment and 83 for it. (See linked vote charts below for details).

Sen. Daniel Inouye (D-Hawaii), a veteran who lost an arm in World War II and voted against the amendment, expressed his reasoning by saying that flag burning "is obscene, painful and unpatriotic... But I believe Americans gave their lives in the many wars to make certain that all Americans have a right to express themselves&mdash;even those who harbor hateful thoughts."


 * Vote Chart:2005-2006 flag burning amendment House votes
 * Vote Chart:2005-2006 flag burning amendment Senate votes

Reasons to oppose the amendment
Three reasons to oppose the amendment were set out by Think Progress on June 19, 2006:


 * 1) "Flag burning is a non-problem: As Sen. Robert Bennett (R-UT) has said, 'I don’t want to amend the Constitution to solve a non-problem. People are not burning the flag.' One study found just 45 reported incidents in the over 200 years between 1777 and 1989, when the Flag Protection Act was first passed.
 * 2) "Flag burning is protected speech: The Supreme Court has twice ruled that destruction of the flag for political purposes, although highly offensive to most Americans, is undeniably a political statement and a political expression.
 * 3) "Amendment is vaguely worded: The amendment is 'phrased in such broad and vague language' that it could could include censorship of images of the flag in works of art, advertising, or commerce. Last week, the Senate spent time debating whether 'wearing a very skimpy bathing suit' decorated with the flag’s stars and stripes would constitute desecration."

External articles

 * "Timeline: history of flag protection," First Amendment Center, 2006.
 * "Flag-Burning Amendment One Vote From Passage," Think Progress, June 19, 2006.
 * "Citizens Flag Alliance Statement on Defeat of Flag Amendment by the U.S. Senate," Citizens Flag Alliance, June 27, 2006.
 * Charles Babington, "Senate Rejects Flag Desecration Amendment," Washington Post, June 28, 2006.
 * "How to handle GOP attacks on the flag amendment," The Carpetbagger Report, June 29, 2006.

Groups supporting the flag burning amendment

 * American Legion
 * American Values Agenda
 * Citizens Flag Alliance

Groups opposing the flag burning amendment

 * "Veterans Against Flag Burning Amendment," Think Progress,