New session opens without traditional flag-amendment talk
By Phillip Taylor
The Freedom Forum Online
In recent years, talk of flag protection has become almost an
opening-session tradition for the nation's lawmakers.
Along with promises of balanced budgets, campaign-finance reforms and
effective lawmaking, each new Congress has offered the pledge that it would be
the Congress to pass a constitutional amendment protecting the U.S. flag from
The 107th Congress convened last month and ... nothing. Even as the
session winds through February, lawmakers have barely uttered a word about such
Even the Citizens Flag Alliance, the American Legion offshoot that has
led the amendment push, has been uncharacteristically quiet.
"My sense is that the flag amendment's completely off the public radar
screen," said Robert Goldstein, a political science professor at Oakland
University and author of Flag Burning and Free
Speech: The Case of Texas v. Johnson. "There's been no
discussion about it for a long time. Whatever the CFA is doing behind the
scenes, we don't know. It seems to me that the silence speaks volumes."
But CFA's Executive Director Marty Justus says the amendment push is
hardly over. He says it's just delayed because of the transition of President
Bush and some new lawmakers. But Justus admits that this session is different
from previous ones.
"This time we're going to win," he said.
A flag amendment has surfaced five times over the past six legislative
sessions. But each time, opponents have beaten the measure back, often with the
narrowest of votes. While the House consistently approves the amendment, the
Senate hasn't been as amenable to adding flag protection to the U.S.
Just last spring, the Senate rejected the amendment by a vote of
63-37, four shy of the required two-thirds majority. And a survey of the newest
senators shows that the amendment would likely fail again, possibly by even
more votes than in years past.
But amendment supporters continue, they say, because of the special
place the flag holds in the hearts of Americans. They say Congress must amend
the Constitution to block courts from striking down laws forbidding desecration
of the national symbol. They note two key cases —
Texas v. Johnson in 1989 and
U.S. v. Eichman in 1990 —
where the U.S. Supreme Court determined that the First Amendment protected
But amendment opponents say such an amendment offends core First
Amendment principles such as the right of assembly and the right to free
"Basically, the flag amendment represents the first retreat from the
Bill of Rights since it was added to the Constitution in 1791," First Amendment
scholar Robert Peck said in a telephone interview.
To pass, a flag amendment must first secure two-thirds approval in
both the House and Senate. The measure, if passed, would then go to the states,
where three-fourths, or 38, of the state legislatures must ratify the
In past sessions, the proposed amendment has read: "The Congress shall
have power to prohibit the physical desecration of the flag of the United
Past debate has brought heartfelt and passionate speeches from both
sides. Lawmakers have heard from a variety of scholars and even celebrities
including former Los Angeles Dodgers coach Tommy Lasorda, actor John Schneider
and former Miss America Shawntel Smith.
For the 106th session, the CFA and other supporters secured a promise
from Majority Leader Trent Lott that he would jockey a quick vote on the
measure. And they got one.
But the CFA, which has spent some $20 million over the past six years,
doesn't have such assurances this time around.
A month into the current session, the only sign of a flag-protection
measure is one from House Rep. Jo Ann Emerson, R-Mo., who has introduced the
measure twice before partly in homage to her deceased husband, a former
congressman. As in previous years, it will likely be ignored.
But Peck says that the main amendment resolution, which has yet to be
introduced, might face similar inattention. He says observers of the
flag-protection debate merely have to surf over to the CFA's Web site to get a
sense of the amendment's status.
"Clearly if they thought they had a realistic chance this time, they
would be pushing folks to come to their Web site," Peck said. "This is quite a
contrast to two years ago. I think it's a signal that they realize that it's
But Justus says his group is "gearing up now."
"But you'll see us doing some of the same things we did in previous
years, such as getting our grassroots support together," he said.
Justus says the CFA may be further behind than in past years with its
effort to rally support for the amendment, but he says that hardly means they
aren't active. He attributes much of the delay to the transition of new
senators and especially President Bush.
For now, the CFA doesn't have a target date to introduce a
flag-amendment resolution in either the House or the Senate. But Justus says he
hopes that it will be introduced this year.
Despite that, Justus says support remains strong. He says the
amendment appears to maintain a comfortable lead in the House, where it has
passed several times with votes to spare. He says the group will be lobbying
Senate members soon.
"The majority [have] pledged their support," Justus said. "Now it's up
to us to nail them down."
But amendment opponents say support continues to dwindle.
"Over the past 11 years, the switches have all been in the direction
of opposition," Peck said. "I think once they (lawmakers) realize the
implications of the amendment and its real focus, they realize how
inappropriate it is to add to the Constitution in this way."
Peck notes that Sen. Mitch McConnell, a former amendment supporter,
has become a very outspoken opponent of the measure. More recently Sen. Robert
Byrd, an influential Democrat from West Virginia, decided to vote against the
measure saying the Constitution matters more than the flag.
The numbers seem to support Peck's contention.
In the months following the Texas v.
Johnson decision, 51 senators voted for a flag-protection
amendment. The following session, 58 voted in favor. In 1995, 63 senators,
three short of passage because one member abstained, approved the amendment.
Supporters failed to get unanimous consent for a vote in 1998, but observers
speculate the measure was within two or three votes of passage.
But last year, the measure lost support with a 63-37 vote. Some say
opposition may be even greater this time around.
Twelve new senators joined Congress this session replacing seven who
had voted for the amendment last year and five who had voted against it. Justus
says the CFA expects support from several new senators, including Sens. George
Allen, R-Va., Jean Carnahan, D-Mo. and Zell Miller, D-Ga.
But Sens. Hillary Clinton, D-N.Y., Jon Corzine, D-N.J. and Thomas
Carper, D-Del., all plan to vote against the amendment, meaning that at least
35 current senators oppose the measure.
Spokespeople for the remaining new senators declined to offer a
position until after a flag amendment was introduced.
Given a likely solid vote against the amendment, those opposing the
measure say they aren't as flustered about it as in previous sessions.
"It's bad enough (for amendment supporters) that it's not going to
pass this time by three or four votes," said Kevin Goldberg, an attorney for
the American Society of Newspaper Editors, which opposes the amendment. "But if
they lose ground by two or three more votes, that would be particularly
Terri Schroeder, a legislative analyst for the American Civil
Liberties Union, says the vote tally doesn't appear to have changed that much.
She says there's a good chance the amendment won't become a big issue in the
current session, particularly since the county's new Secretary of State
expressed concern about the amendment last year.
"Given the fact that Gen. Colin Powell really expressed his opposition
last time, that would be helpful in deterring any focus on this in the coming
session," Schroeder said in a telephone interview. "But then again, we
typically have our flag votes. I just don't think that there has been any great
gain or loss on either side."