Washington – By a single vote, the Senate defeated a constitutional amendment today that would have given Congress the power to ban desecration of the American flag.
Colorado’s two senators – Democrat Ken Salazar and Republican Wayne Allard – voted for the measure, which fell one vote short of the 67 needed for passing a constitutional amendment.
“The American flag is a symbol, a physical embodiment of the freedom and liberty that we Americans are privileged” to have, said Allard. “It has served as an inspiration, a guiding light to our men and women in uniform.”
“I do not believe that laws narrowly prohibiting the desecration of our flag in any way undercut the principles embedded in the First Amendment,” said Salazar.
The House of Representatives approved the amendment, on a 286-130 roll call, last year.
The flag’s defenders have tried to pass the amendment since 1989 and 1990,when the Supreme Court ruled in separate decisions that burning or desecrating the flag are exercises of free speech, protected by the Bill of Rights.
The amendment gained ground in the six years since the last Senate vote, when it fell four votes short of passage.
The amendment failed on a 66-34 roll call, with 52 Republicans and 14 Democrats in support, and 30 Democrats joining three Republicans and one independent against the measure.
If the amendment had been passed by Congress, and ratified by the legislatures of three-fourths of the states, the Constitution would have had a new clause declaring, “The Congress shall have the power to prohibit the physical desecration of the flag of the United States.”
Sen. Richard Durbin, D-Ill., asked his colleagues today to pause before becoming the first Congress in U.S. history “to amend the Bill of Rights.”
“It takes some audacity and bravado” to claim that you have “a better idea than those Jefferson had,” said Durbin.
Sen. Edward M. Kennedy, D-Mass., warned that authorizing any exceptions to the First Amendment would open the door to other changes, inevitably curbing Americans’ freedom to speak out, protest, publish or worship.
Future generations will look back in dismay at a day the Senate votes so that “the flag will wave over a land that is a little less free and a little less brave,” Kennedy said.
But Sen. Orrin Hatch, R-Utah, the amendment’s chief sponsor, said such concerns were spurious, and represented his opponents’ political need “to cover their backsides.”
Legislatures in 50 states have passed measures welcoming a flag-burning amendment, Hatch noted. He vowed to try again in the next Congress.
Allard said that a flag-burning ban would not be a restriction on speech, “only on the means the speaker chooses to communicate.”
He criticized the Supreme Court for “decisions that have stripped away the peoples’ rights to protect” the flag.
Other supporters dismissed the concerns of civil libertarians and critics over how much time, freedom and money the country would spend to stop the handful of desecrations reported each year.
“There have been several instances of flag desecration in the past year,” Sen. John Thune, R-S.D., contended. And “these are just the ones we know about.”
But Sen. Robert Byrd, D-W.Va., said that a ban on flag burning would only spur attention-seeking protesters to go out and burn flags.
“The primary effect of the amendment will be to create more … incidents of flag desecration,” said Byrd.
“I cringe from, shrink from, and condemn any desecration of the flag,” said Byrd, the Senate’s senior member and leading congressional scholar. “But I do not agree it is necessary to amend the basic organic document of the Constitution.”
Before taking the final roll call, the Senate defeated, on a 64-36 vote, a substitute measure offered by foes of the amendment that would have made it a crime to desecrate the flag under certain conditions, or to demonstrate at military funerals.
Salazar voted for the substitute measure; Allard opposed it.
The Twenty-Seventh Amendment, which says that congressional pay raises approved by Congress cannot take effect until after the next election, was the last change to the Constitution. It was ratified in 1992.
