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House again OKs changing Constitution to ban flag-burning

By The Associated Press

WASHINGTON — In what Democrats called an annual GOP rite of spring, the Republican-controlled House yesterday passed an amendment to the Constitution to criminalize flag-burning for the fifth time in eight years.

The one-line change to the Constitution — "The Congress shall have power to prohibit the physical desecration of the flag of the United States" — was approved by a 300-125 vote as a pair of holidays approach — Flag Day on June 14 and Independence Day on July 4.

Senate passage is less likely. The constitutional amendment needs a two-thirds majority in the House and Senate and approval by three-fourths of state legislatures. However, virtually all state legislatures have already said they would ratify such an amendment.

Burning an American flag shows disrespect for America, supporters said, claiming that the majority of the American people approve of legally protecting Old Glory. (However, the First Amendment Center's 2002 State of the First Amendment survey showed support for a flag amendment at 46%.) "If we allow its defacement, we allow our country's gradual decline," said Rep. Steve Chabot, R-Ohio.

But many opponents say the legislation would curtail free-speech rights by criminalizing a powerful form of political protest.

"The whole purpose of the underlying constitutional amendment is to stifle political expression that we find offensive," said Rep. Robert Scott, D-Va. "While I agree that we should respect the flag, I do not think it is appropriate to use the criminal code to enforce our views on those who disagree with us."

It is unlikely that the GOP-controlled Senate will take up the constitutional amendment this year, said Senate Judiciary Chairman Orrin Hatch, R-Utah, one of the bill's Senate supporters. The Senate has never passed the legislation under Republican or Democratic control.

"It's always an uphill battle but we're hoping we can get it done," Hatch said. "Maybe not this year, but at least probably next year."

The Bush administration supports the legislation, the White House said.

Lawmakers have debated the flag amendment almost annually since a 5-4 Supreme Court decision in 1989, Texas v. Johnson, saying flag-burning was a protected free-speech right. That ruling overturned a 1968 federal statute and flag-protection laws in 48 states.

In 1990, Congress passed another law protecting the flag, but the Supreme Court that year, in United States v. Eichman, another 5-4 ruling, struck it down as unconstitutional.

Since then, the House has approved flag amendments in 1995, 1997, 1999 and 2001, all by more than 300 votes. The Senate, in votes in 1995 and 2000, came up with only 63 votes, four short of the two-thirds majority needed.

The House's new members haven't had chance to weigh in on the issue, said House Majority Leader Tom DeLay, R-Texas.

"We think they ought to have that opportunity because it's an important piece of legislation that makes a very strong statement about what our flag means to us and to the people of the United States," DeLay said yesterday.

Opponents of the legislation, including Rep. Jerrold Nadler, D-N.Y., called the vote a Republican "rite of spring" public-relations ploy.

"The calendar tells us that June 14 is Flag Day and of course there's July 4th," Nadler said. "Members need to send out a press release extolling a need to protect the flag, as if the flag was in need of protection by Congress."

A Democratic attempt to amend the bill, H.J. Res. 4, failed on a 296-129 vote.

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Democratic rival John Kerry says he'd punch a flag-burner but that 'the Constitution that I fought for preserves the right of free expression.' 11.12.03

Candidates state positions on flag amendment
Of the Democratic presidential hopefuls, only Wesley Clark expresses support for constitutional change. 01.23.04

Senate subcommittee approves flag amendment
Sen. Russell Feingold criticizes measure, saying it would 'permit the government to criminalize conduct that, however misguided and wrong, is clearly expressive.' 06.03.04

Senate panel OKs flag-burning amendment
Judiciary Committee approves changing U.S. Constitution, but opponents say full Senate won't pass it. 07.20.04

Notwithstanding the Constitution ...
By Paul K. McMasters Here's the game politicians are playing with First Amendment freedoms: When problems prove hard to solve, outlaw offending speech so it looks like we're doing something. 07.06.99

Patriotism and politics: the rush to rewrite the Constitution
By Ken Paulson Proposal to ban flag-burning wouldn't just be a resolution or even a law that could be struck down — this proposal would be a permanent constitutional amendment curtailing our basic freedom to protest. 06.15.03


Recent flag legislative action

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