History and the Flag Amendment

WHEN Congress returns after its August break, it will once again take up the burning issue of the flag amendment. The fact is it just won't work, this emotional attempt to amend the US Constitution by prohibiting the public desecration of the American flag. It has become nearly impossible to modify the Constitution this way, given the number of times Congress has over the past two decades dealt with proposed amendments. Obviously, and with good reason, the framers of the Constitution intended to make it difficult. The document was to be a permanent instrument of government, with amendments approved by two-thirds of the Congress and three-fifths of the states. The goal was for any changes to take place only after considerable reflection and debate, and little emotion.

As it is, the Constitution has been amended only 26 times since 1789, the year of the first federal Congress. It could be argued that the document has been modified just 14 times. The first 10 amendments (the Bill of Rights) were part of the original document. Two other amendments (one approving, the other repealing prohibition) canceled each other out, leaving the 14 since 1791.

Literally thousands of amendments (estimations range upwards to some 10,000) have been proposed over the past 200 years. Many have been silly, but others have not. Indeed, some have explicitly attacked a specific decision of the Supreme Court highly reminiscent of the court's June ruling that the free expression clause of the First Amendment protects burning the American flag as an act of political dissent.

At least four amendments undid previous court actions. The 11th Amendment broadened states' immunity from lawsuits by overturning a 1793 decision; the 14th Amendment with its equal protection clause overruled the Dred Scott decision which said slaves were chattel; the 16th Amendment undid the court's ban on a national income tax; and the 26th Amendment abrogated the court's refusal to allow Congress to lower the voting age. Another amendment, banning child labor, passed Congress in 1924 but the states never ratified it.

While there may be precedent for amendments to overturn unpopular Supreme Court decisions, history shows how difficult it is to modify the document through amendment. With the exception of only the 16th Amendment, each of the others were approved when the country was moving through a crisis. The 11th Amendment came about at a time when the nation was still very young and uncertain of its collective future. The 14th Amendment was added right after the Civil War, and the 26th during the Vietnam War.

We are not living in a time of crisis. The cold war certainly appears to have wound down. The economy, though inflicted with debt, seems stable. There are no mass demonstrations in the streets protesting this or that. So a flag amendment added to the Constitution now is highly unlikely if not impossible, given that the document was last changed in 1971 when the voting age was reduced to age 18. Since 1971 we have seen the defeat of two rather important amendments. One would have allowed home rule for the District of Columbia. the other was the controversial Equal Rights Amendment that the requisite number of states never ratified.

Moreover, former President Reagan's attempt to add an array of amendments all ended in failure. He proposed amendments for a balanced budget, against abortion, and for the return of prayer to the public schools. Congress rejected all of them.

President Bush should therefore forget about a flag amendment. History shows it may well be a futile, wasteful task. Perhaps, during the congressional summer break, the issue has drifted off as have so many of the other thousands of proposed amendments. If it has, as it deserves to, then the president and Congress can turn their attention to the continuing budget deficit, trade relations with Japan and Europe, US policy toward China and the Soviet Union, and other far more pressing issues.

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