Flag Burning and the US Congress

Since the Bill of Rights was adopted (Amendments 1 - 10), the US Constitution has been amended 17 times. Only one of those amendments restricted citizen rights -- Prohibition -- and it was subsequently repealed.

In 1968, Congress passed a law prohibiting the desecration of the flag. By 1989, every state except Alaska and Wyoming had companion laws.

Congressional attempts to prohibit flag burning -- or any desecration of the flag -- began in earnest after a 1989 5-4 Supreme Court decision in Texas v Johnson opened the door to burning the flag as a form of political speech protected under the First Amendment. On 18 July 1989, Senators Robert Dole, Alan Dixon, Strom Thurmond, and Howell Heflin proposed a Constitutional amendment, Senate Joint Resolution 180, to protect the flag. On 12 September 1989, the House passed HR 2978 (which became the Flag Protection Act of 1989).

The House of Representatives -- whose members stand for re-election every other year -- has perennially supported an amendment prohibiting desecration of the flag. The Senate, on the other hand, has been the brakes on this train. Votes required for passage, two-thirds: 290 in the House and 67 in the Senate, assuming all Congressmen vote.

The Seattle Times reports that Gallup polling shows support for a Constitutional amendment to protect the flag has dropped from 71 percent in 1898 to 55 percent in 2005. (Margin of error not reported.)

• 1989 - 101st Congress
  On 18 July, Sen. Dole (R-KS) introduced SJ Resolution 180, a constitutional amendment to protect the flag. Also introduced, S. 1338, The Biden-Roth-Cohen Flag Protection Act of 1989.
  
  On 24 July, Rep. Brooks (R-TX-9) introduced HR 2978, a law to to protect the physical integrity of the flag. On 12 September, the House passed the bill 380 - 38 (Roll No. 226).
  
  The Senate passed an amended version of HR 2978 by a vote of 91-9. The House passed the revised bill by a vote of 371 - 43 (Roll No 286). President Bush did not sign the bill; it became Public Law 101-131 on 28 October.
  
  On 19 October, expecting the bill to pass Supreme Court muster, the Senate defeated Dole's proposed constitutional amendment, 51-48. Not voting, Wilson (R-CA).
• 1990 - 101st Congress
  Sen. Dole (R-KS) reintroduces his proposed constitutional amendment, SJ Resolution 332 on 25 May 1990.
  
  On 11 June, in US v Eichmann 496 U.S. 310 (1990), the Court (5-4) affirms its decision in Texas v Johnson. The law is unconstitutional.
  
  On 26 June, the Senate rejected the proposed amendment, by a vote of 58 - 42.

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