First Amendment topicsAbout the First Amendment
Patriotism and politics: the rush to rewrite the Constitution
Inside the First Amendment

By Ken Paulson
Executive director, First Amendment Center

It looks like it’s going to be a classic American summer: backyard barbecues, baseball games and the annual congressional push to ban flag- burning.

The House of Representatives has just approved a measure that would permit government to punish anyone who burns an American flag. It’s now headed to the Senate for a vote.

This proposal and others like it have been debated and defeated since 1989, when the U.S. Supreme Court found that burning a U.S. flag in protest was an exercise of free speech. The decision meant that the government would not be allowed to retaliate against someone protesting government policies by burning his or her own American flag.

Two years ago, it appeared that the momentum to ban flag-burning had peaked. But then came the events of Sept. 11, 2001, the war on terrorism and the war in Iraq. Passions are building.

“If the flag is good enough to drape the coffins of those good soldiers coming back from Iraq, then it’s good enough to be protected from burning and spitting on,” Jim Duremo, a service officer for the American Legion in Fargo, N.D., told The Associated Press.

The emotion is understandable, but it’s also important to recognize exactly what some members of Congress are trying to pass.

This is not simply a patriotic resolution. A resolution doesn’t have the force of law.

This is not a proposed law. A law would once again be struck down by the U.S. Supreme Court as a clear violation of the First Amendment, which gives us the right to protest.

In fact, Congress is literally trying to rewrite the Constitution to prevent just a handful of flag-burning incidents in this country each year. If approved by the Senate and three-fourths of the states, the amendment would override Supreme Court rulings and give Congress the power to punish flag-burning.

For members of Congress, it’s an irresistible combination: Pass a flag-burning ban in time for the July 4 recess and then pass the buck to the states.

The irony is that we’re considering rewriting our Constitution – the heart of our nation – to prevent people from tampering with a symbol of our nation.

The Words We Live By, Your Annotated Guide to the Constitution, a comprehensive new book by Linda Monk, provides a detailed analysis of the Constitution’s contents and makes clear how rarely – and how wisely – it has been amended.

The U.S. Constitution has been amended just 27 times:

  • The majority of amendments to the Constitution have made us more free.
  • The first 10 amendments – the Bill of Rights – give us freedom of speech, freedom of religion, the right to be free of unreasonable searches, the guarantee of a fair trial and the right to bear arms, among other guarantees.
  • In 1865, our nation abolished slavery with the 13th Amendment.
  • In 1868, the 14th Amendment guaranteed equal protection under the law, which in turn set the stage for the entire Bill of Rights to be applied to the states.
  • Black men, women and 18-year-olds were all given the right to vote in separate amendments spanning 101 years.
  • The 18th Amendment – like the proposed flag-burning amendment – was a rare instance of taking rights away from Americans: It prohibited the sale of alcoholic beverages. We all know how well that worked out.

In a thoughtful letter written in 1999, now-Secretary of State Colin Powell warned that rewriting the Constitution was too drastic a step to address flag-burning: “The First Amendment exists to ensure that freedom of speech and expression applies not just to that with which we agree or disagree, but also that which we find outrageous. I would not amend that great shield of democracy to hammer a few miscreants. The flag will still be flying proudly long after they have slunk away.”

Flag-burning irritates many who view the red, white and blue as a singular symbol. But the fact remains that no one is physically hurt by a flag-burning and the only property being damaged is owned by the protester.

Time after time, we have rewritten our Constitution to reflect the grandest of ideals: equality, opportunity and justice. Never before in this nation’s history have we used the extraordinary mechanism of a constitutional amendment just to keep ourselves from being offended. This is no time to start.


House again OKs changing Constitution to ban flag-burning

Anti-desecration amendment, critics charge, would criminalize a powerful form of political protest. 06.04.03

Clark tells veterans he favors flag amendment
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

Flag-burning horizon

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