Constitutional ban on flag burning may pass Senate in this election year

July 15, 1998|By Jack W. Germond and Jules Witcover

WASHINGTON -- At the opposite ends of Pennsylvania Avenue, politicians are busy these days with contrasting efforts to preserve and honor the American flag. One is commendable, if seemingly a bit extravagant. The other is ludicrous, if well-intentioned.

At the White House and the Smithsonian Institution's Museum of American History, the Clintons this week helped launch an $18 million project to restore the 184-year-old badly faded and tattered American flag that flew over Fort McHenry in 1814 and helped inspire Francis Scott Key to write "The Star-Spangled Banner."

The largest chunk of money for the restoration project, $13 million, is coming from fashion designer Ralph Lauren.

While this noble work is going forward, up Pennsylvania Avenue at the Capitol, the Senate has been getting ready for another try to pass a constitutional amendment that would permit Congress to ban burning the American flag. The measure overwhelmingly passed the House last year (310-114). The Senate Judiciary Committee held hearings last week and will probably vote on the measure in the fall.

The flag-burning ban has come before the Senate on other occasions and has been defeated, but sentiment in favor of such a ban has been growing. The Senate initially voted on the ban in 1989, when the Supreme Court ruled in a Texas case that such a ban was an unconstitutional violation of the First Amendment guaranteeing free speech. Three years ago, however, backers of the ban came within three votes of the 67, or two-thirds of the Senate, required for approval of a constitutional amendment.

This year, the amendment, which would authorize "Congress to prohibit the physical desecration of the flag of the United States," already has 61 sponsors in the Senate, with only six more needed to send it to the states for ratification.

Seeking to prohibit flag-burning by constitutional amendment is, obviously, akin to trying to kill a gnat with an AK-47 assault weapon. Two opponents of the idea, Democratic Sen. Bob Kerrey of Nebraska, a Congressional Medal of Honor winner for bravery under fire during the Vietnam War, and Republican Sen. John Chafee of Rhode Island, note that "we are not battling an epidemic of flag-burnings." They cite a Library of Congress report that only about two dozen flag-desecration incidents have occurred nationwide since 1995. "Americans who honor and revere the flag far outnumber the malcontents who do not," they said regarding the proposed amendment.

But the committee chairman, Republican Sen. Orrin Hatch of Utah, a backer, said he was greatly impressed by testimony of former Los Angeles Dodgers manager Tommy Lasorda. He recounted an incident in 1976 when two men ran onto the field at Dodger Stadium in Los Angeles and tried to burn a flag soaked with lighter fluid. A player, Rick Monday of the Chicago Cubs, rTC snatched the flag and ran off as the baseball fans stood and sang "God Bless America."

Mr. Lasorda, arguing that the 1989 Supreme Court ruling treated the American flag as "just another piece of cloth," offered his own interpretation of the First Amendment: "Freedom of speech is when you talk."

But the court doesn't see it quite that narrowly. At the core of the current fight over campaign finance reform is a 1976 court ruling that spending money for political purposes is also an exercise of free speech. In that case, it held that no limits can be imposed on how much an individual may spend on his own candidacy, or in behalf of a cause of his choice.

Mr. Kerrey was instrumental in blocking the flag-burning ban in 1995 and has not budged. "As repulsive as it is," he and Mr. Chafee said, "allowing individuals to burn our flag is perhaps the greatest symbol of our nation's liberty. Let us not trample freedom to quiet a few malcontents." The task of beating the amendment this time, however, may be a harder one.

Jack W. Germond and Jules Witcover write from The Sun's Washington bureau.

Pub Date: 7/15/98

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