Why Amend the Constitution to Authorize Congress to Prohibit Physical Desecration of the American Flag?

Amending the Constitution is the Only Available Means to Further the Government's Legitimate Interest in Protecting the Flag

Amending the Constitution is the only way. While it would be preferable to protect the flag by federal statute, the Supreme Court has, in two narrow 5-4 decisions, breaking from 200 years of precedent - overturned statutes prohibiting physical desecration of the flag. By these definitive rulings, the Court has sent the message that a Constitutional Amendment is the exclusive means for protecting the flag.

The Government has a Legitimate Interest in Protecting the American Flag from Physical Desecration

- Protecting the flag affirms the most basic condition of our freedom: our bond to one another in our aspiration to national unity. Our system of democracy, the Constitition, and all of the freedoms, rights and laws which flow from each are based on this unity. The flag forms the basis and is a symbol of this unity. The flag remains a single unifying embodiment of our unceasing struggle for liberty, equality, and a basic commitment to others for all citizens, regardless of language, culture and heritage. To protect the laws and freedoms that are based on this unity, we must protect the flag upon which this unity is grounded. An amendment to the Constitution authorizing Congress to Enact a Statute to Prohibit Physical Desecration of the Flag of the United States: Hearing on H.J. Res 54 before the Subcommittee on the Constitution of the House Judiciary Committee.

- The Flag is the "trademark" of our nation. The values that the flag embodies are the "intellectual property" of our nation that the government has an interest in protecting through the "trademark" of the flag. Just as the government has a legitimate interest in protecting ownership rights for inventors, writers and artists, so it also is charged with promoting respect, understanding and adherence to the values which make self-government possible.

- We must protect the flag to protect its role as an incident of sovereignty.

Our Founding Fathers and those who led the nation thereafter did not permit the desecration of the American flag. They knew that America's adversaries would interpret this as a sign that our flag is a symbol that is meaningless, rather than an embodiment of our rights and freedoms. As a result, today, there is a unique respect for the flag of the United States abroad. (This respect for the American flag overseas was demonstrated during the Persian Gulf War, when foreign tankers in the Gulf flew the American flag. An act of aggression against the tankers in the Gulf would have been the equivalent of an attack against the United States and its sovereign interest in protecting allied vessels in wartime). Because our government has a strong interest in the physical protection of American citizens and property abroad, it has a corresponding interest in protecting the flag from physical desecration, on behalf of all Americans who benefit from the rights and freedoms the flag embodies.

- The proposed amendment protects from further injury the fundamental value of aspiration to national unity.

Since the Supreme Court rules that the freedom to physically desecrate the flag is more important than the unity which underlies all freedoms, the flag has been decaying as an embodiment of this unity. This decay justifies the proposed amendment which will restore to the people the right to protect their common objective of democracy which underlies our freedoms. United States versus Eichman, 496 U.S. 310, 323 (1990)

- If the values are worth fighting for, the symbol and embodiment of those values deserves protection

The freedom and ideals of liberty, equality and tolerance that the flag symbolizes and embodies have motivated our nation's leaders, soldiers and activists to pledge their lives, their liberty and their honor in defense of their country. Because our history has demonstrated that these values and ideals are worth fighting for, the flag which uniquely symbolizes their power is itself worthy of protection from physical desecration. Texas versus Johnson, 491 U.S. 397, 439 (1989)


-Amending the Constitution to authorize Congress to prohibit physical desecration of the flag is entirely appropriate and consistent with the principles set out in the Constitution. The drafters of the Constitution realized changes would be necessary, and provided the Article V amendment process precisely for this purpose. The amendment process is intentionally rigorous and methodical so that only those proposals with overwhelming public support are enacted. Furthermore, the notion of "upholding" the Constitution, which all elected members of Congress swear to do, embodies the privilege of exercising all the rights within it, including the right of the people to amend the Constitutuion consistent with the Article V process.

- The proposed amendment does not reduce our freedoms under the Bill of Rights, it merely restores the Constitution to the way it had been understood prior to 1989 - to the notion that the people had the right to protect the flag from physical desecration. This is how the Constitution had been interpreted for 200 years. The Article V amendment process is the time-tested manner in which the people express their disagreement with Supreme Court constructions of the Constitution, as was done in the case of the Eleventh, Thirteenth, Fourteenth and Sixteenth Amendments. Protecting the flag is just as important as the issues which resulted in these prior amendments. (Professor Steven B. Presser, Northwestern University School of Law, in a letter to Marty Justis, Executive Director of the Citizens Flag Alliance, at 2.

-First Amendment rights have never been absolute/ There are existing laws against libel, slander, perjury, obscenity and indecent exposure in public. Just as the government has a legitimate interest in regulating these types of speech and conduct, it has a similar interest in limiting certain conduct which damages an incident of its sovereignty, or infringes on the rights and freedoms embodied in our national symbol, by prohibiting the physical desecration of the flag. United States vs Eichman, 496 U.S. 310, 322 (1990) (Stevens, J., dissenting), Texas vs Johnson, 491 U.S. 397, 430 (1989)(Rehnquist, C.J., dissenting).

- The First Amendment right to free speech includes a substantive component. The right is not merely process-based and one-dimensional. Rather, it is multi- dimensional, and includes the correlative duty, when one is exercising his/her free speech right, to respect the rights of others. The proposed amendment validates this corresponding responsibility by restoring to the people the right to defend their collective rights. Specifically, this proposal would empower the people to apply their right to protect the flag from physical desecration.

- If free speech is to truly flourish, we must protect the bond that unites us, including the substantive parameters of the right to free expression. We must strengthen the bonds that hold us together, and so make it possible to engage in robust disagreement with each other. Protecting the flag lays the foundation for this objective.

- The proposed amendment would not "amend" the First Amendment. Rather, the proposed amendment and the First Amendment would both be interpreted in light of each other. Just as the Equal Protection Clause of the Fourteenth Amendment is interpreted in light of the First Amendment without any fear of dilluting the latter, our courts are equally capable of harmonizing a provision to authorize protection for the flag with the First Amendment.

- The proposed amendment is consistent with Supreme Court precedent. The Supreme Court determined that protecting a flag by statute amounted to the government "choosing sides" in favor of a specific point of view, in violation of the First Amendment. The proposed amendment poses no challenge to the notion that the government ir prohibited from "choosing sides" for a specific view. Rather, it questions the assumption that protection of the flag is just another "point of view". The government does not create reverence for the flag when it acts to protect it, for the previous 200 years of history had already established this reverence. The proposed amendment merely recognizes this respect, and affirms that the flag forms the basis of our aspiration to unity. This aspiration nurtures, rather than undermines, freedom of speech. The Court thus retains the full power to harmonize the two amendments by interpreting the proposed amendment in light of the First Amendment. (Texas vs Johnson, 491 U.S. 397, 429, 434)(1989)(Rehnquist, C.J. dissenting), Parker statement at 7.

- The proposed amendment would reinforce the Constitution/ The flag symbolizes our aspiration to national unity and democracy, upon which the Constitution is grounded. Thus, amending the Constitution to authorize Congress to protect the flag would further strengthen the Constitution and the laws and freedoms which from from it.

- The flag is an instrument of expressing honor as well as a symbol of honor. We honor and cherish members of the Armed Services and other individuals through the process of honoring and protecting the flag. Draping a flag over the coffin of a fallen soldier, placing a flag near a grave, or hanging a flag on one's house on Memorial Day are all ways we express our honor and appreciation for those who have fought and died to secure the freedoms we have as Americans. Allowing others to physically desecrate the flag diminishes the honor and recognition that we bestow upon such individuals. Thus, we must protect the flag to respect the substance of what the flag embodies, along with what it symbolizes. To appropriately honor the individual, we must honor the flag.

- Displaying the flag is a medium for demonstrating that the freedoms the flag represents are recognized, protected and upheld. Courtrooms, schools, the halls of Congress, other government building - wherever the flag is displayed signifies that it is a place where the substance of our freedoms and rights is protected. Thus, we must protect the flag to preserve the significance and weight that displaying the flag in such forums conveys.

- The proposed amendment does not regulate speech or discriminate against any specific messages. The proposal would merely regulate one mode of expression - physical desecration of the flag. Regardless of the specific "message" intended, laws enacted pursuant to the proposed amendment would impose a single narrow regulation on the mode of the message: It could not be expressed by physically desecrating the flag. (Texas vs Johnson, 491 U.S. 397, 432 (1989) (Rehnquist, C.J., dissenting).

- The American people deserve the right to choose to protect the flag. The practice of democracy binds our nation. The flag symbolizes and embodies this bond, and thus in turn symbolizes our system of democracy. The American people should be authorized to require a minimal respect for this one symbol that binds us to one another, to protect the freedoms upon which it is based.

  • Back to Flag Protection Table of Contents