- The Washington Times - Wednesday, June 22, 2005


The House yesterday approved a constitutional amendment that would give Congress the power to ban desecration of the American flag, a measure rejected twice by the Senate in the past decade but expected to get a closer vote this year.

By a 286-130 vote — eight more than needed — House members approved the amendment by the required two-thirds majority after a debate over whether such a ban would run afoul of the Constitution’s free-speech protections.

If approved by a similar two-thirds majority in the Senate, the amendment then would move to the states for ratification. It would have to be approved by three-fourths, or 38, of the 50 state legislatures to become the 28th Amendment to the Constitution.

Sixty-three senators, four short of the two-thirds needed, voted for the amendment in 1995 and again in 2000. With Republicans increasing their majority in last fall’s election, activists on both sides of the issue said the amendment has its best chance ever of passing this year. But a rough count by the Associated Press shows 34 — one more than needed to defeat it — either as having voted against the amendment in the past or committed publicly to opposing it.

Supporters said the measure reflected patriotism that deepened after the September 11, 2001, terrorist attacks, and they accused detractors of being out of touch with public sentiment.

“Ask the men and women who stood on top of the [World] Trade Center,” said Rep. Randy “Duke” Cunningham, California Republican. “Ask them and they will tell you: Pass this amendment.”

But Rep. Jerrold Nadler, New York Democrat, said: “If the flag needs protection at all, it needs protection from members of Congress who value the symbol more than the freedoms that the flag represents.”

The measure was designed to overturn a 1989 decision by the Supreme Court, which ruled 5-4 that flag burning was a protected free-speech right. That ruling threw out a 1968 federal statute and flag-protection laws in 48 states. The law was a response to anti-Vietnam war protesters setting fire to the American flag at their demonstrations.

The proposed one-line amendment to the Constitution reads, “The Congress shall have power to prohibit the physical desecration of the flag of the United States.” For the language to be added to the Constitution, it must be approved not only by two-thirds of each chamber, but also by 38 states within seven years.

Each time the proposed amendment has come to the House floor, it has reached the required two-thirds majority. But the measure always has died in the Senate, falling short of the 67 votes needed.

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