Constitutional Scholars in Support of Amendment Authorizing Congress to Enact Flag Protection Statute

Constitutional Scholars Forum, Williamsburg, Virginia

In August 1994, several constitutional scholars debated the issue of amending the Constitution to authorize Congress to prohibit physical desecration of the American flag. The following scholars spoke in support of a constitutional amendment in this area:

Professor Robert Nagel, University of Colorado School of Law

Professor Richard Parker, Harvard University School of Law

Professor Stephen Presser, Northwestern University School of Law

Generally, Professor Nagel, Parker and Presser agreed that any statute placing substantive or discretionary limits on the desecration of the American flag will be held unconstitutional and that only a constitutional amendment can restore to the Congress the power to enact a flag-protection law. Other views expressed by these legal scholars were as follows:

-Flag desecration should not invoke the protections of the Constitution. Flag desecration is an inarticulate, headline-seeking means of demonstration that does not rise to a protected form of expression.

-Any proposed amendment should be constructed in a narrowly-tailored fashion so as not to disturb the protections afforded by the First Amendment. Legitimate acts of political protest ought not to be stifled, and critical debate about the role and policies of the federal government ought to be encouraged. Any restriction ought to be a narrow exception carved out for the flag, based upon its unique symbolic value.

-Reliance on Congress to define desecration would not create a chaotic First Amendment crisis. Societal norms now govern several exceptions to the First Amendment, including obscenity, incitement and libel. These exceptions have been developed and defined by legislation as well as case law. Most statutory laws require interpretation. These requirements have not caused the Constitution or the American system of civil justice to lose its effectiveness or broad support from the American public and will not be a barrier to proper implementation of a flag-protection amendment.

-To assure broad acceptance of free expression, society should prevent those acts that are the most egregious and likely to undermine public support for the First Amendment, such as flag desecration. In other words, public support for the First Amendment is likely to remain commensurate with the level of dignified content in the actions of those who invoke its protection.

Other Statements by Legal Scholars in Support of Flag Flag Protection Amendment

Professor Richard Parker, Harvard University School of Law

"I believe that, in a democracy, freedom of speech must be 'robust and wide- open'. Whether freedom of speech is in fact robust and wide-open does not depend solely, or even primarily, on case-by-case adjudication by the courts. It depends most of all on conditions of culture. First, it depends on the willingness and capacity of people to express themselves energetically and effectively in public. Second, it depends on acceptance as well as tolerance, official and unofficial, of an extremely wide range of viewpoints and modes of expression. And third, it depends on respect for very basic parameters that, like constitutional provisions in general, help structure democratic life the better to release its energies. It's because of th[ese] belief[s] that I support a new constitutional amendment, one that would permit the Congress - if it chooses - to protect the flag of the United States against physical desecration."

(Statement before the Subcommittee on the Constitution of the Committee on the Judiciary, United States House of Representatives, on Amending the Constitution to Protect the Flag, April 30, 1997, p. 1.

Professor Stephen Presser, Northwestern University School of Law

"It is now clear that only a Constitutional Amendment can protect the flag...My feeling is that rather than fearing such a Constitutional Amendment [Members concerned about supporting the amendment] should embrace it. It is a profound demonstration of the feeling of the American people, and is the people's time-honored way of correcting erroneous constitutional interpretations of the Supreme Court. the proposed Flag Protection Amendment is no infringement on the Bill of Rights, it is instead, a wonderful exercise in the popular sovereignty the Bill of Rights was designed to protect."

(Letter to Citizens Flag Alliance, October 23, 1995)

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