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Push persists to protect Stars and Stripes

House acts, again, to ban flag burning. Is Constitution any closer to being amended?

By Robert P. Hey Special to The Christian Science Monitor / July 19, 2001



WASHINGTON

When residents of Candlelight Lane in nearby Potomac, Md., padded out to retrieve their morning papers on July 2, each found a small American flag placed in the ground beside the mailbox.

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More than two weeks later, as Congress considers a bill intended to prevent desecration of the American flag, most of the tiny banners - the gift of a local realtor - are still waving. That they do reflects what polls repeatedly have indicated: Americans support the flag -even if not with World War II-era fervor - and they don't want it desecrated.

Flag burning and other forms of desecration were common during Vietnam War protests in the late 1960s and early '70s. In response, the Texas Legislature and, later, Congress, passed laws making desecration illegal.

But the US Supreme Court ruled both laws unconstitutional. No matter how repugnant, it said, desecration is an act of free speech, and therefore protected by the First Amendment to the US Constitution, which says: "Congress shall make no law ... abridging the freedom of speech."

For proponents of such a law, there's only one way to get around the court rulings: Amend the Constitution. Now, for the fourth time in the past decade, they're trying.

The proposed amendment is brief and direct. It would change the Constitution's First Amendment to say: "The Congress shall have the power ... to prohibit the physical desecration of the flag of the United States."

So far, the effort has been Sisyphean. The measure has passed the House by the necessary two-thirds but never made it through the Senate. It came close last time - falling four votes short of two-thirds in the Senate. This year is likely to be more of the same, analysts say. Tuesday it passed the House as usual, 298 to 125, but the Senate looms ahead.

What motivates proponents to make the effort year after year is deep conviction and, for some, a recognition of the vote's political impact. "People who vote against this amendment," says political analyst Norman Ornstein of the American Enterprise Institute in Washington, "can be forced into a position where they have to argue why it's not a bad thing to desecrate the flag."

There's another factor: the educational value of bringing an issue to the fore time after time. The Founding Fathers designed the system for amending the Constitution to be difficult in order to prevent whimsical change. Two-thirds of the House, and two-thirds of the Senate, must approve a change; then three-fourths of the states - 38 out of 50 - must assent. Backers may feel, Mr. Ornstein says, that by repeatedly raising the issue, "the uphill slope will get a little less steep."

Proponents of the amendment, who cite support from Gen. Norman Schwarz-kopf of Gulf War fame, disagree with the Supreme Court's reasoning. They hold that flag desecration is not speech but conduct, which is not protected by the Constitution.

The "amendment is about more than the flag," said Sen. Orrin Hatch (R) of Utah, a primary sponsor of the amendment, when he introduced it. "It also represents an important step toward returning to the American people something equally as important - our common values."

Opponents generally don't like desecration either. But they argue that the flag symbolizes freedom, and that one of the basic freedoms in the US is speech. They note the court's conclusion that desecration is speech. They cite the support of Secretary of State Colin Powell, who was chairman of the Joint Chiefs of Staff during the Gulf War.

Most surveys have shown that a majority of Americans support the amendment. Between 1989 and 1999, five Gallup polls found that between 62 and 71 percent of Americans, depending on the year, supported an amendment that would let Congress prohibit flag burning. But in April 2000, the last major poll supposedly taken, the University of Connecticut's Center for Research and Analysis found that only 46 percent wanted such an amendment, and 51 percent of Americans opposed it.

The next step, now that the House has passed the bill, is a hearing by the Senate Judiciary Committee of a similar bill. No hearing has yet been scheduled by Chairman Sen. Patrick Leahy (D) of Vermont, an opponent of the amendment.

(c) Copyright 2001. The Christian Science Monitor