Flag amendment not needed but a federal statute may fly Senate votes next month on anti-desecration act

August 30, 1998|By THEO LIPPMAN ETA

The Senate is expected to vote next month on this amendment to the Constitution: "The Congress shall have the power to prohibit the physical desecration of the flag of the United States."

The House of Representatives passed the amendment in June 1997 by a vote of 310-114.

According to the Citizens Flag Alliance (CFA), a coalition of patriotic, civic, religious and veterans organizations, which is pushing for the amendment, 64 senators are pledged to vote "aye." That's one more than voted for it in 1995, the last time it came to a vote there, but three less than the two-thirds majority needed to approve of constitutional amendments when all 100 senators vote.

To get those three votes, the CFA recently announced it was launching a nationwide advertising and public relations campaign in newspapers, on radio and on television, to put public pressure on uncommitted senators and even on those who are on record as opposed to the amendment. The alliance has urged citizens to call and write senators who opposed the amendment "to vote for it anyway, so as to give their constituents the opportunity to decide this important issue."

By that, it means that if the House and Senate pass an amendment, three-fourths of the states must then approve it, or it dies.

That such an amendment is popular is beyond question. More than three-fourths of state legislatures have passed so-called memorializing resolutions asking Congress to send them the amendment. Some polls put public support at as high as 80 percent. It will take a brave senator to vote "no."

Or will it? More on that later.

But first let me say there are at least two good reasons not to have such an amendment.

One: Flag desecration is not a problem. Three public flag desecrations were confirmed in 1994, the latest year for available statistics. "We have a solution looking for a problem to solve," said Sen. John Glenn, the Ohio Democrat.

The Constitution has been amended only 17 times since the first 10, the Bill of Rights, were adopted more than 200 years ago. No article of the Bill of Rights has been diluted, as a flag amendment would dilute the First Amendment, which guarantees free speech. It trivializes the Constitution to amend it for annoyances that are relatively few, even if outrageous.

Two: Congress almost surely has that "power to prohibit the physical desecration of the flag of the United States" in those situations in which flag burners are likely to appear. That's the view of several constitutional scholars and members of Congress.

Rep. Rick Boucher, a moderately liberal Democrat from Virginia, has for nearly a decade been urging on his House colleagues a statute that would do more than enough to protect the flag - to no avail, largely because the Supreme Court overturned a similar statute in 1990. "We've tried that before," says a CFA official, speaking for many members of Congress.

But Boucher and co-sponsor Rep. Wayne Gilchrest, a moderately conservative Republican from Maryland's Eastern Shore (and a Marine veteran of the Vietnam War), proposed a bill last year that, according to the scholars who have studied it, says Boucher, "agree our approach is valid and would be found constitutional." Among the legal scholars consulted were A.E. Dick Howard of the University of Virginia, Lawrence Tribe of Harvard and Morris Fine of the Heritage Foundation.

The bill's approach is to amend the U.S. Criminal Code to forbid (a) "destroying or damaging" the flag with the intent to provoke violence or in circumstances likely to produce violence or a breach of the peace; (b) damaging a flag belonging to the federal government; and (c) damaging a flag belonging to someone else on federal property.

That doesn't go far enough for many anti-flag-burners. They want all physical insults to the Stars and Stripes outlawed. But that might not happen unless the First Amendment is modified by another amendment.

The alliance members recall not only 1990 but also 1989, when the Supreme Court ruled as unconstitutional a state anti-flag-burning law, then did the same with a federal law.

They remember it too well, I believe. It blinds them to the reality of the statute approach.

Boucher's bill not only got a thumbs-up from those scholars, it also got one from the American Law Division of the Congressional Research Service. CRS analyzed the bill for the House Judiciary Committee. It concluded that "subsections (b) and (c) appear to present no constitutional difficulties, based on judicial precedents, either facially or applied. Almost as evident from the Supreme Court's precedents, subsection (a) is quite likely to pass constitutional muster."

Alliance members and their supporters in Congress have their constitutional experts, too. And they say the statute won't do all it claims, much less what the CFA desires. They cite those 1989 and 1990 decisions. (Trivia question: Who argued and lost the case in favor of the then-existing federal Flag Protection Act? Answer: Kenneth Starr.)

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