Executive Summary - Flag Protection Amendment



These web pages covering the Flag Protection Amendment are designed primarily to present the numerous arguments and justifications for the flag protection amendment as well as the importance of these arguments to the deliberative process underlying efforts to enact the amendment. Indeed, proponents of the flag protection amendment - including over 120 citizens organizations, individual citizens and elected officials at the local, state and national levels - are utilizing the exacting constitutional amendment process established in Article V of the Constitution to achieve protections for the flag. As discussed below and in the contents of the other pages in this series, the effort is inherently democratic, and - since the Supreme Court decisions in 1989 in Texas versus Johnson, 491 U.S. 397 (1989) and in 1990 in United States versus Eichman, 496 U.S. 310 (1990) - represents the only remaining, constitutional means for protecting the flag from acts of physical desecration.

Impetus for the National Campaign to Enact a Flag Protection Amendment

The national campaign to enact a flag protection amendment began in 1989 when the Supreme Court ruled, in a 5-4 decision in Texas versus Johnson, that flag desecration was a means of public protest in an act of free expression protected by the First Amendment. This decision, in effect, invalidated the laws in 48 states and the District of Columbia that prohibited flag desecration. The Johnson decision also outraged the American people, 75% of whom - according to opinion surveys - favored protections for the flag. A similar number of citizens viewed a constitutional amendment as appropriate to achieve such protections, to which President George Bush and members of both parties in Congress responded by petitioning Congress to adopt a flag protection amendment. Congress responded instead by passing a statute - The Flag Protection Act of 1989, by a Senate vote of 91-9 and a House vote of 380-38.

In 1990 the Supreme Court, in a 5-4 decision in United States versus Eichman, stuck down the Flag Protection Act as inconsistent with free-expression protected by the First Amendment. Congress, in response to widespread criticism of the Court's decision in Eichman, again attempted to enact protections for the flag, this time by constitutional amendment. This effort failed, however, as neither chamber of Congress was able to gain the two thirds majority vote necessary for adoption of a constitutional amendment proposal.

After the 1990 congressional votes on the constitutional amendment, the campaign to mobilize national support for enacting an amendment to protect the flag greatly expanded. As part of this effort, the American Legion spearheaded the creation of the Citizens Flag Alliance (CFA), a broad-based, nonpartisan coalition of citizens organizations - currently including over 120 organizations representing millions of Americans - established for the sole purpose of mounting a national campaign to win passage of a constitutional amendment to protect the flag.

The CFA's Nationwide Campaign to Enact a Flag Protection Amendment

The CFA, since it's creation in 1994, has waged a full-scale, nationwide grassroots campaign to gain enactment of a flag protection constitutional amendment. In this regard, numerous accomplishments are attributable to the CFA's efforts over the last several years, including -
- enactment by 49 State legislatures of resolutions calling on Congress to pass a flag protection amendment
- participation by governors and other local, state and national political leaders in policy and media events in support of the flag protection amendment.
- organization of 50 state teams designed to persuade candidates for federal office to articulate support for the flag protection amendment.
- recruitment of co-sponsors and votes for Senate and House flag protection amendment proposals.
- sponsorship of a national constitutional scholars forum in Williamsburg, Virginia in which promiment legal scholars from around the country, representing all facets of the political spectrum, discussed the relative merits of the flag protection amendment.
- commissioning of both national and state polls on the flag protection amendment.
- institution of a nationwide outreach program to member organizations and other citizens and political officials through an internet web site, newsletter, telephone and direct mail communications.

Due in large part to the efforts of the CFA, the House of Representatives, in June 1995, adopted the flag protection amendment by a vote of 312-120, easily surpassing the necessary two-thirds majority. The Senate vote in December 1995 failed to reach the two-thirds threshold by merely three votes - the final vote was 63-36.

Despite the disappointment of the 1995 Senate vote, efforts by proponents of the flag amendment have continued on in earnest. Indeed, on June 12, 1997 the House of Representatives, again far exceed the necessary supermajority, when it voted 310-114 in favor of H.J. Res 54, the flag protection constitutional amendment. This narrowly-crafted proposal would authorize only Congress, not the states, to enact protections for the flag. Thus the constitutional amendment process has returned to the Senate, where the CFA and other proponents of the flag protection amendment are seeking to achieve the two-thirds majority vote needed to send the amendment to the States.

Reasoned and Rational Adherence to Democratic Processes for Amending the Constitution

The above chronology of initiatives and events speaks to a process - followed by the CFA, its member organizations and by the many individual citizens and elected officials who support the flag protection amendment - that adheres to the vision of our nation's Founding Fathers and the Constitution's Framers as set out in Article V. This is a deliberative endeavor, one that requires a vast majority of the nation's citizens and elected officials behind it. In most senses, this majority has spoken in favor of the amendment: 80 percent of the nation, according to recent polls, 49 State legislatures, well over a supermajority of the House of Representatives.

This majority views the two Supreme Court decisions as incorrect and contrary to 200 years of legal tradition and precedent that never saw flag protection as incompatible with the First Amendment. Moreover, the views of this majority have been articulated by our Founding Fathers, Justices of the Supreme Court, constitutional scholars and by a bipartisan majority of the U.S. Congress. These distinguished citizens have, among other reasons, advocated protections for our flag as a means of protecting our national sovereignty and reaffirming traditional American values. Further they are persuaded that flag desecration is expressive conduct, not speech, and as such can be reconciled with First Amendment constitutional protections.

Proponents of the flag protection amendment also seek to protect and promote the unity of values embodied in the flag. Our system of democracy, the Constitution, and all of the freedoms, rights and laws which flow from each are based on this unity. And the flag forms the basis and is a symbol of this unity. It remains - in a time when traditional unifying elements of American language, culture and heritage are fraying - a single embodiment of our unceasing struggle for liberty, equality and a basic committment to others, for all citizens, regardless of language, culture and heritage.


Any analysis of the merits of the flag protection amendment must be viewed in terms of the underlying adherence by proponents of the amendment to constitutional processes. This is a deliberative and democratic process that the CFA and other Americans - indeed a majority of citizens - are utilizing to seek enactment of protections for the flag. The Constitution, in Article V, confirms that the Supreme Court is not, in every instance, the final word on issues of national importance, especially when the majority of the nation's citizens and their elected officials support a contrary viewpoint. The amendment process is an important part of the Constitution, which affords the people their only opportunity to update the Constitution in those rare cases where it is necessary. All of the material presented in this series of web pages about the flag protection amendment are designed to articulate the viewpoint of those who support the flag protection amendment and to foster the deliberative dialogue on an issue of critical importance to a vast majority of Americans.

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