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senate Bill S. Joint Res. 49

Should the Constitution Give Congress the Authority to Prevent the Desecration of the American Flag?

Argument in favor

The Constitution should give Congress the authority to prohibit the desecration of the American flag. Flag-burning disrespects both the flag itself and veterans' sacrifices and should therefore be prohibited.

B.R.'s Opinion
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07/04/2020
There are certain things that deserve to be the exception, and I think this is one of them. The flag has and will always be a symbol of respect for our men and women who fought to protect our freedoms.
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Just.Dave's Opinion
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07/06/2020
If you burn the American flag, you hate America. If you love America, with all of her flaws, but you have passion and drive to help fix those flaws, you don't burn the flag, you don't kneel at the National Anthem, you stand proud and you work toward that goal. Only dems want you on your knees, and burning flags, because they hate you and they hate America. I ask that you stand up, stand proud and tell the racist do nothing democrats that they're fired. We can work together toward real, positive change, without those that telling you to kneel... but we can only do so without them. Let's blue flush this shitty toilet.
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Sneaky-Pete's Opinion
···
07/04/2020
I support the Senate resolution (SJ Res. 49), which would propose an amendment to the U.S. Constitution, that’d give Congress the power to prohibit the physical desecration of the U.S. National flag. The Constitution should give Congress the authority to prohibit the desecration of the American flag. Flag-burning disrespects both the flag itself and veterans' sacrifices and should, therefore, be banned. Because it proposes a constitutional amendment, after this resolution’s passage by two-thirds of both chambers of Congress, it would have to be ratified by three-fourths of the state legislatures (38 states) to amend the U.S. Constitution. As expected here, seeing a 99% to 1% opposing view is seen. And counter to some sad commentators here, I’m not a fascist to support the resolution. 🇺🇸 God Bless the U.S.A. 🇺🇸 SneakyPete. 👍🇺🇸👍🇺🇸👍 7.4.20
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Argument opposed

The Constitution needs to continue to protect the right of Americans to desecrate the American flag under the First Amendment. Banning flag-burning could be the start of other restrictions on the First Amendment.

Dylan 's Opinion
···
07/04/2020
I’m sorry, but if you say yes, you are literally a fascist.
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William's Opinion
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07/04/2020
While I am a US Service Member. I believe in free speech even to the point of disrespecting the flag. It’s cloth and hurts no one other than the person who spent the money to buy it. Protect free speech.
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jimK's Opinion
···
07/04/2020
Our flag is a symbol of who we are and should be treated with respect. Freedom of speech is not a symbol of who we are, freedom of speech is a central tenet of what we actually are as part of our most cherished rights as Americans, or at least a founding principle that we must strive for and protect. So the question comes down to which is more important to protect. Is it the symbol of who we are more important than the fundamental rights and principles we purport to believe in? Is the Constitution which enshrines the principles and ideals that should guide our government more important than an instrument which symbolizes the values we supposedly hold true? I say that the Constitution and our founding ideals overwhelms the need to protect a symbol of what we purport to be, particularly when our government’s actions are permitted to drift away from our founding principles and ideals.
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What is Senate Bill S. Joint Res. 49?

This resolution would propose an amendment to the U.S. Constitution that’d give Congress the power to prohibit the physical desecration of the U.S. flag.

Because it proposes a constitutional amendment, after this resolution’s passage by two-thirds of both chambers of Congress it would have to be ratified by three-fourths of the state legislatures (38 states) to amend the U.S. Constitution.

Impact

People who would desecrate the American flag; state legislatures; Congress; and the Constitution.

Cost of Senate Bill S. Joint Res. 49

A CBO cost estimate is unavailable.

More Information

In-DepthSponsoring Sen. Steve Daines (R-MT) reintroduced this resolution from the 115th Congress to amend the Constitution to give Congress the authority to prohibit the desecration of the American flag. In a press release, he said: 

"Our United States flag is a timeless symbol of liberty that tells the story of America, the story of our enduring pursuit of freedom. Remembering the sacrifices of all who carried its colors into battle, our nation should always render the flag the honor and dignity it is due.”

Original cosponsor Sen. Kevin Cramer (R-ND) adds

"A flag worth dying for is a flag worth protecting. While we should always be mindful of First Amendment rights, the American flag signifies the founding principles that countless men and women have given their lives to preserve. Adding a Constitutional amendment to protect this symbol of freedom and liberty is not an attack on another Constitutional amendment; rather, it is an affirmation of the unifying principles our nation stands for.”

When he introduced this resolution in the 115th Congress, Sen. Daines said:

“The American flag has been a symbol of hope and freedom for centuries and ought to be respected. Our nation’s flag must be set apart as a protected symbol worthy of honor.”

In remarks on the Senate floor on June 14, 2018, Sen. Daines commemorated Flag Day by highlighting this resolution, recognizing American veterans' sacrifices and issuing a report detailing 50 recent offensive acts on the American flag. During his speech, Sen. Daines said, "Our flag should be protected in honor of the countless American service members who have paid the ultimate sacrifice to defend it... Our veterans are the best example of why America is the greatest country on earth and why our freedoms and liberties are worth defending."

Rep. Steve Womack (R-AR), sponsor of a House joint resolution, H.J.Res.65, that mirrors this resolution's language, says

“Our flag is more than a cloth painted red, white, and blue. It is a symbol of worldwide freedom, unity, and liberty. It has guided troops into battle, flown during our triumphs and challenges, and is placed over the caskets of those who have paid the ultimate sacrifice. Generations have fought to defend our stars and stripes – and the American people have simply given too much for the flag to not have the ability to protect it.”

President Trump expressed his support for this resolution in a tweet on June 15, 2019. He tweeted, "All in for Senator Steve Daines as he proposes an Amendment for a strong BAN on burning our American Flag. A no brainer!" This tweet wasn't the first time Trump expressed opposition to the Supreme Court's ruling that flag-burning is protected under the First Amendment. Shortly after his election, Trump tweeted "Nobody should be allowed to burn the American flag - if they do, there must be consequences - perhaps loss of citizenship or year in jail!" on November 29, 2016.

Veterans organizations in Montana support this resolution. In 2017, the American Legion of Montana said, "It is long past time that the flag of the United States be protected from desecration. The American Legion of Montana applauds Senator Daines’ effort to protect the flag.” Similarly, the Department of Montana Veterans of Foreign Wars said, "The U.S. flag should be protected by the U.S. Constitution in the name of all veterans that gave their lives to protect it."

Katherine Timpf, a reporter for National Review Online, argues that keeping flag-burning legal is an act of patriotism that expresses support for the First Amendment

"Is burning an American flag a disgusting, reprehensible act? Yes, it absolutely is, and I would tell that to the face of absolutely anyone who has done so. The flag is a symbol of our freedom, and burning it absolutely is one of the least patriotic things that a person could possibly do. I say 'one of the least' because I can think of a few things that would actually be less so — and, as a matter of fact, I think that banning flag-burning would absolutely be on that list... Although it may seem counterintuitive, one of the things that our flag stands for is our right to burn it if we choose to do so. Why? Because among the freedoms that the flag stands for is our freedom of speech... [T]he most important role that the First Amendment plays in this country is that it gives us the freedom to speak out against our government, thereby providing a check on its power... I normally hate the 'slippery slope' argument, but in this instance, I have to admit that the slope is exactly what makes me so terrified. Think about it: If we outlaw flag burning because it is 'unpatriotic,' what could 'because unpatriotic' be used as an excuse to outlaw next? Protesting government decisions? Speaking out against the president? If we start using 'lack of patriotism' as a barometer for what speech should and should not be allowed, we could see the tragic loss of the very freedoms that our flag is meant to extoll... [H]ating something doesn’t always mean that the answer is to call on government powers to ban it — and, in fact, I’d say that that is rarely the best solution, especially when it comes to speech. To me, a better solution than sliding even an inch down the slope of fascism would be to encourage people to use their own rights to free speech to protest the things that they don’t like . . . flag-burning included. So, go ahead: Tell flag-burners how you really feel... But do not try to use government power to stop them from exercising their First Amendment rights — because doing so is insult to the very symbol that you’re claiming to cherish."

Writing for the Daily Wire, political analyst Frank Camp contends that criminalizing flag burning would "blight the First Amendment"

"The American flag is a symbol of liberty, virtue, and sacrifice, and few Americans have any desire to see it trampled or burned. However, to criminalize the desecration of the American flag would be to blight the First Amendment, which was designed to safeguard our freedom to express all viewpoints, especially those that may be regarded by the majority of citizens as disagreeable or even revolting. Even in the face of the Supreme Court’s rulings and the general principles established in the First Amendment allowing the freedom of expression, there are still those who don’t believe that burning or otherwise damaging the American flag should be a constitutionally protected act. Yet the long arms of the federal government are always reaching, and each time we loosen the chains that bind them, whether it’s in exchange for safety or, in this case, a perceived virtue, they will try, and often succeed, at taking much more than they have been given. If we are willing to allow the government to dictate what we can and cannot do with our American flags, what other personal property are we willing to have the government deem untouchable?"

This resolution has seven Republican Senate cosponsors. Its House companion, H.J.Res.65, sponsored by Rep. Steve Womack (R-AR), has 17 Republican House cosponsors

Last Congress, this resolution had the support of 13 Republican Senate cosponsors and didn't receive a committee vote. An identical House resolution, H.J.Res.61, sponsored by Sen. Womack with 31 Republican cosponsors' support, also didn't receive a committee vote.


Of Note: constitutional amendment would be the only way to allow prohibitions on flag burning to be enacted because of the Supreme Court’s 1989 ruling in Texas v. Johnson that flag burning is protected speech under the First Amendment. In a 5-4 decision, Justices William Brennan was joined by Justices Thurgood Marshall, Harry Blackmun, Antonin Scalia, and Anthony Kennedy in upholding the right to burn the flag, writing for the majority that:

“If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.”

Two of the dissenting justices — Sandra Day O’Connor and Byron White — joined an opinion by Chief Justice William Rehnquist who wrote:

“The American flag, then, throughout more than 200 years of our history, has come to be the visible symbol embodying our Nation. It does not represent the views of any particular political party, and it does not represent any particular political philosophy. The flag is not simply another "idea" or "point of view" competing for recognition in the marketplace of ideas. Millions and millions of Americans regard it with an almost mystical reverence regardless of what sort of social, political, or philosophical beliefs they may have. I cannot agree that the First Amendment invalidates the Act of Congress, and the laws of 48 of the 50 States, which make criminal the public burning of the flag.”

Before the Court's decision, 48 states had laws on the books banning flag desecration.


Media:

Summary by Eric Revell

(Photo Credit: DanBrandenburg / iStock)

AKA

A joint resolution proposing an amendment to the Constitution of the United States authorizing the Congress to prohibit the physical desecration of the flag of the United States.

Official Title

A joint resolution proposing an amendment to the Constitution of the United States authorizing the Congress to prohibit the physical desecration of the flag of the United States.

joint resolution Progress


  • Not enacted
    The President has not signed this bill
  • The house has not voted
  • The senate has not voted
      senate Committees
      Committee on the Judiciary
    IntroducedJune 13th, 2019
    There are certain things that deserve to be the exception, and I think this is one of them. The flag has and will always be a symbol of respect for our men and women who fought to protect our freedoms.
    Like (43)
    Follow
    Share
    I’m sorry, but if you say yes, you are literally a fascist.
    Like (269)
    Follow
    Share
    While I am a US Service Member. I believe in free speech even to the point of disrespecting the flag. It’s cloth and hurts no one other than the person who spent the money to buy it. Protect free speech.
    Like (250)
    Follow
    Share
    Our flag is a symbol of who we are and should be treated with respect. Freedom of speech is not a symbol of who we are, freedom of speech is a central tenet of what we actually are as part of our most cherished rights as Americans, or at least a founding principle that we must strive for and protect. So the question comes down to which is more important to protect. Is it the symbol of who we are more important than the fundamental rights and principles we purport to believe in? Is the Constitution which enshrines the principles and ideals that should guide our government more important than an instrument which symbolizes the values we supposedly hold true? I say that the Constitution and our founding ideals overwhelms the need to protect a symbol of what we purport to be, particularly when our government’s actions are permitted to drift away from our founding principles and ideals.
    Like (183)
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    As much as I love the US flag, they still have their first amendment right to burn the flag. I don’t like it when people burn it, but they have a right to do so
    Like (111)
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    A flag isn't a country. The constitution we have gives US citizens the guaranteed right to free speech.
    Like (76)
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    Of course trumplicans draw the line of freedom of speech at anything they disagree with. And calling for capital punishment without a trial is quite telling.
    Like (61)
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    Banning burning the flag would restrict people’s right to free speech, and wouldn’t actually do anything to stop protests anyway
    Like (48)
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    More concerned with desecration of people (Covid-19 deaths, police killings, Russian bounty on US soldiers) than symbols (flags, statues, naming of bases & ships). Not that symbols should also be protected but protect people 1st than worry about property! Get priorities straight! Yet another distraction from the important priorities of COVID-19 & Justice in Policing.
    Like (46)
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    Protected by decisions made by the Supreme Court and 1st amendment
    Like (38)
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    I hate when people burn our flag, but I love our First Amendment rights more.
    Like (37)
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    Burning the flag harms nothing except the flag. It’s a piece of cloth that people like Trump and Cory Gardner have tarnished with their corruption, racism, xenophobia, and selfishness.
    Like (32)
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    While I don't like flag-burning, it is a harmless way to protest. The First Amendment protects the right to peaceful protest, and I would rather this action than harming other people. During this time of protests for systemic change, we cannot crack down on people's rights. This nation was built by protest, starting 6 years before the Declaration of Independence, and that tradition must continue. Also, how would this be enforceable? Are you going to monitor people's back yards? Where does it stop? Also, if the flag is so great, where are the stars for Washington, DC, Puerto Rico, Guam, USVI, and our other territories? Does it not apply to all of them?
    Like (29)
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    Looking at the current congress can we trust what laws and punishment to be reasonable, fair, etc. that they would enact? Probably not!
    Like (27)
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    The ONLY desecration of our United States flag where there should be shame and punishment is ass clown's image integrated into the stars and strips! And let's not forget he and the flag needing to 'get a room' on more than one occasion.
    Like (22)
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    This is an old fight. The flag stands for freedom, independence and diversity. If the flag is corrupted by greed and bigotry and authoritarian government policies it no ha lost its meaning. The people who burn flags feel let down and lied to by the promise of America as symbolized and declared by the Statue of Liberty. We need to remember who we are and why America exists L
    Like (21)
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    The Supreme Court decision was already made. This is a 1st amendment right.
    Like (18)
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    If you burn the American flag, you hate America. If you love America, with all of her flaws, but you have passion and drive to help fix those flaws, you don't burn the flag, you don't kneel at the National Anthem, you stand proud and you work toward that goal. Only dems want you on your knees, and burning flags, because they hate you and they hate America. I ask that you stand up, stand proud and tell the racist do nothing democrats that they're fired. We can work together toward real, positive change, without those that telling you to kneel... but we can only do so without them. Let's blue flush this shitty toilet.
    Like (18)
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    It’s a flag. Even with the symbolism, it’s a piece of fabric. It’s not terribly important.
    Like (17)
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    Is a cowboy hat with an American flag theme a desecration? How about a blanket? Where do you draw the line? A symbol in a free country should not be designated anything special
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