Flag Protection Amendment example essay topic

The issue of flag desecration has been and continues to be a highly controversial issue; on the one side there are those who believe that the flag is a unique symbol for our nation which should be preserved at all costs, while on the other are those who believe that flag burning is a form of free speech and that any legislation designed to prevent this form of expression is contrary to the ideals of the First Amendment to our Constitution. Shawn Eichman, as well as the majority of the United States Supreme Court, is in the latter of these groups. Many citizens believe that the freedom of speech granted to them in the First Amendment means that they can express themselves in any manner they wish as long as their right of expression does not infringe on the rights of others; others, however, believe that there are exceptions to this right of speech. Such constitutional issues need to be worked out by the Supreme Court, which uses its powers of constitutional interpretation and judicial review to outline the underpinnings of the Constitution and interpret the law.

The case which acted as an impetus for Eichman's actions was that of Texas vs. Johnson. "In 1984, in Dallas, Gregory Johnson, a member of the Revolutionary Communist Youth Brigade, a Maoists society, publicly burned a stolen American flag to protests the re- nomination of Ronald Reagan as the Republican candidate" (Levy 217). The police consequently arrested Johnson not for his message but for his manner in delivering it; he had violated a Texas statute that prohibited the desecration of a venerated object by acts that "the offender knows will seriously offend one or more persons" (Downs 83). Johnson had hoped to capture America's attention with this burning and he did; however, his protest earned him more than a moment in the national spotlight. "Under Texas's tough anti- flag-burning statute, Johnson was fine $2,000 and sentenced to a year in prison" (Relin 16). In Texas vs. Johnson a majority of the Supreme Court considered for the first time whether the First Amendment protects desecration of the United States flag as a form of symbolic speech.

A sharply divided Court had previously dealt with symbolic speech cases that involved alleged misuses of the flag. While "the Court had ruled in favor of the defendants in those cases (Street vs. New York, 1969; Smith vs. Goguen, 1974; Spence vs. Washington, 1974), it had done so on narrow grounds, refusing to confront the ultimate question status of flag desecration" (Downs 868). The court ruled in favor of Johnson (5-4), believing that "there was no evidence that Johnson's expression threatened an imminent disturbance of the peace, and that the statute's protection of the integrity of the flag as a symbol was improperly directed at the communicative message entailed in flag burning" (Downs 868). Justice Brennan concluded by saying, "We do not consecrate the flag by punishing it's desecration, for in doing so we dilute the freedom that this cherished emblem represents" (Witt 409).

Reacting to this ruling, the Untied State's Congress sought to pass legislation that would overturn it. The Flag Protection Amendment was introduced and then voted down, but then the Flag Protection Act was passed in both houses. President Bush allowed this act to pass without his signature, "an expression of his preference for a Constitutional amendment" (Apel "Flag Protection"). The Act criminalized the conduct of anyone who "knowingly mutilates, defaces, physically defiles, burns, maintains on the floor or ground, or tramples upon" a United States flag, except conduct related to the disposal of a "worn or soiled" flag (U.S. ).

On October 30th, 1989, the day the bill went into effect, hundreds of people burned flags; among them was Shawn Eichman. The Justice Department admitted that the law was unconstitutional under Texas vs. Johnson, but prosecuted anyways, hoping to get the court to reverse its decision. The court decided that "flag desecration is a form of political expression that is protected under the First Amendment rights to free speech", and ruled in favor of Eichman by a vote of 5 to 4, thus nullify the Flag Protection Act which Eichman had been protesting ("House" 1144). The majority consisted of Justices Brennan, Marshall, Blackmun, Scalia, and Kennedy. Dissenting were Justices Stevens, Rehnquist, White, and O'Connor. For the majority opinion, Justice Brennan wrote the following: Although the Flag Protection Act contains no explicit content-based limitation on the scope of prohibited conduct, it is nevertheless clear that the Government's asserted interest is related to the suppression of free expression...

Moreover, the precise language of the Act's prohibitions confirms Congress' interest in the communicative impact of flag destruction... If there is a bedrock principle underlying the First Amendment, it is that the Government may not prohibit the expression of an idea simply because society finds the idea offensive or disagreeable. Punishing desecration of the flag dilutes the very freedom that makes this emblem so revered, and worth revering. According to Justice Anthony Stevens, "The landmark decision was simply a pure command of the Constitution.

It is poignant but fundamental that the flag protects even those who hold it in contempt" (Relin 16). Dissenting, Justice Stevens, along with the Chief Justice, Justice White and O'Connor wrote: ... It is equally well settled that certain methods of expression may be prohibited if (a) the prohibition is supported by a legitimate societal interest this is unrelated to suppression of the ideas the speaker desires to express; (b) the prohibition does not entail any interference with the speaker's freedom to express those ideas by other means; and (c) the interest in allowing the speaker complete freedom of choice among alternative methods of expression is less important than the societal interest supporting the prohibition. Justice Stevens concluded his opinion that by destroying the symbol of freedom, the individual communicates a willingness to destroy those freedoms themselves: By burning the embodiment of America's collective commitment to freedom and equality, the flag burner charges that the majority has forsaken the commitment-that continued respect for the flag is nothing more than hypocrisy. Such a charge may be made even if the flag burner loves the country and zealously pursues the ideals that the country claims to honor. (Supreme) Groups such as the American Civil Liberties Union (ACLU) praised the ruling.

Laura W. Murphy, Director of the ACLU's National Washington Office showed her support when she said, "The First Amendment is this country's first principle. It is a critical part of what has made our country uniquely free. We have been strengthened, not weakened, by the sweep of its language and by the Supreme Court's adherence to its true meaning" (Apel "ACLU"). Many anti-flag desecration groups, particularly the Citizens' Flag Alliance (CFA), were outraged by this ruling. These organizations petitioned Congress to reintroduce the Flag Protection Amendment. Since the ratification of the Constitution in 1789, some 10,000 attempts have been made to amend it.

They have included ideas such as "eliminating the Senate", and renaming the country the "United States of Earth". But "never in the nations history has anyone tried to amend the Bill of Rights". (Relin 18) To do so would be a dramatic step in that it could pave the way for further future limitations on our constitutional freedoms. For an amendment to the Constitution to be made, "The house and the Senate have to propose (each by 2/3 vote) exactly the same text before the amendment is open for ratification by the states" (Apel "Hasbrouck").

If the amendment (to the First Amendment) is passed in both chambers, it then goes to the states for ratification. In 1990, both the House and Senate failed "to muster the required two-thirds majority to pass the Flag Protection Amendment (Citizens'). In 1995, however, the amendment cleared the House by a vote of 312-120. This Senate Joint Resolution 31 (S.J. Res. 31) was also passed by the Senate Judiciary Committee by a vote of 12-6, but was then rejected by the Senate by only 3 votes.

In February of 1998, Senators Orrin Hatch (R-UT) and Max Cleland (D-GA) reintroduced the amendment as S.J. Res. 40, but it was decided that there was not enough time left in the term to vote on the amendment. Most recently, in March of 1999, the Flag Protection Amendment was reintroduced once again as S.J. Res. 14. Once again, it was passed in the House and by the Senate Judiciary Committee, but to date has not become ratified. Among those against the original amendment in 1990 were George Mitchell, Tom Daschle, Patrick Leahy, Dale Bumpers, David Boren, Howard Metzenbaum, Barbara Mikulski, Jeff Bingaman, Bill Bradley, Paul Simon, and Christopher Dodd. Perhaps the most ardent opponent to the amendment was Ted Kennedy. In an eloquent speech he gave on June 11, 1990 he stated: When we pledge allegiance to the flag, we pledge allegiance to the principles for which it stands.

Few, if any, of those are more fundamental to the strength of our democracy than the first amendment's guarantee of freedom of speech. Let us not start down this disastrous road of restricting the majestic scope of the first amendment by picking the kinds of speech that are to be permitted in our society. He goes on to mention that this constitutional amendment might "irreparably damage the separation of powers that has protected our constitutional freedoms throughout history... because judges insulated from public pressure can best evaluate the claims of unpopular minorities". Kennedy is saying here that since Congress can be greatly influenced by special interest groups, such as the Citizens' Flag Alliance, it is the responsibility of the judiciary branch of government to objectively rule as to what is truly constitutional. If the Senate amends the Bill of Rights for the first time in history by passing the Flag Protection Amendment, who knows where they would stop. "Every nation in the world has a flag, and many of them, including some democracies, have laws against desecrating their flag.

No other nation has a Bill of Rights" (Levy 219). All of the proponents for the Eichman decision who were also against the Flag Protection Amendment used very logical, well-structured arguments, while those dissenting and in support of the "amendment to an amendment" use mostly emotional arguments and focus on the respect owed to all those who have died in the military protecting the nation. These in the latter group seem usually to be associated with the military themselves (e.g. Major General Patrick H. Brady is the Board Chairman of the Citizens' Flag Alliance). Justice Stevens argued that flag- burning was not an acceptable form of expression because people could convey their views by other means; he seems to have failed to realize, however, that it is not the right of the government to limit one to a certain means of voicing his or her opinions. Flag burning is a form of protest which rarely occurs and which does little but offend others.

Perhaps a law such as the Flag Protection Act, while unconstitutional, is permissible as a means of silencing organization such as the CFA, but an amendment to our Bill of Rights is certainly going too far. Apel, Warren S. "ACLU Action Report". Online. Apel, Warren S. "Chronology to Flag Burning". Online. Apel, Warren S. "The Flag Protection Act of 1989".

Online. Apel, Warren S. "Hasbro uk Explains the Voting Procedure". Online. "Citizens' Flag Alliance: Significant Campaign Events". Online. Downs, Donald A. "Eichman, United States v".

The Oxford Guide to United States Supreme Court Decisions. New York: Oxford University Press, 1999: 83. Downs, Donald A. "Texas vs. Johnson". The Oxford Companion to the Supreme Court of the United States. New York: Oxford University Press, 1992: 868-869. "House Panel Approves Flag-Burning Measure".

Congressional Quarterly Weekly Report 17 May, 1997: 1444. Levy, Leonard W. "Flag Desecration". Encyclopedia of the American Constitution. New York: MacMillan Publishing Company, 1992: 217-220.

Relin, David Oliver. "A Burning Question". Scholastic Update 21 Sept, 1990: 16-19. "Supreme Court of the United States". Online. "Ted Kennedy".

Online. "U.S. Supreme Court-United States vs. Eichman". Online. Witt, Elden. "Protest and the Flag". Congressional Quarterly's Guide to the Supreme Court.

Washington D.C. : Congressional Quarterly Inc., 1990: 409.