The U.S. Constitution hasn’t been successfully amended in decades. The last attempt at amending it that came close to succeeding was the proposed Equal Rights Amendment which was passed by Congress but never quite garnered ratification by three-fourths of states.
The 27th Amendment was finally ratified in the 1990s, but it was passed by Congress 200 years earlier, so that one doesn’t count. No successful amendment has been passed by Congress since the early 1970s.
That hasn’t stopped the U.S. House of Representatives from trying on more than one occasion to push through an amendment that would ban the desecration of the American Flag, such as by burning it.
Back it the 1980s, flag burning was a more popular means of protest than it is now. Congress passed a law that forbade burning the flag, but the U.S. Supreme Court rightly decided that the law was unconstitutional. It violated the freedom of speech clause in the First Amendment.
Since then Congress has tried several times to change the Constitution by amending it in order to stop flag burners.
Last week, the House passed an anti-desecration amendment proposal as it has done five times before. It garnered more than a two-thirds majority even over the cool-headed logic of representatives such as Jerrold Nadler, D-N.Y. who 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.”
As before, it faces a dubious future in the Senate. Although both houses of Congress are controlled by Republicans and it is they who tend to support such restrictions of our civil liberties, the moderate Republicans in the Senate, along with most of the Democrats, are likely to prevent passage.
And even if it did make it all the way through Congress, it would most certainly die in the state ratification process. There is very little likelihood that 75 percent of the states would vote to restrict our freedoms that much.
Burning the American flag is a despicable act. Especially to those who have been in the armed services or who have family members who serve, the desecration of the flag is a major slap in the face.
But unlike a physical slap, burning a flag does not constitute battery. It is very similar to name-calling. And, in general, though it is a sign of immaturity, name-calling is protected by the First Amendment.
The Supreme Court has determined that the Freedom of Speech clause applies to other types of expression, not just verbal speech. It applies to the written word and to symbolic acts such as protesting and, yes, burning the flag.
In fact, it is absolutely imperative that in this country that values freedom above all else, its citizens must have the right to protest by burning the flag. It is our unique constitution that gives us the right to burn it.
Amending that constitution to take away that right would make it less unique. It would put us on the same level as China and North Korea, countries that do not tolerate anti-government protests.
Some House members understand that. But, apparently, the majority does not.