Would the Flag Protection Amendment Work?
Here is the exact text of the proposed Flag Desecration Amendment, S.J. Res 12, H.J. Res 10:
The Congress shall have power to prohibit the physical desecration of the flag of the United States.
Let’s put aside for the moment any questions of the First Amendment, which the Flag Desecration amendment would partially repeal. If this were a statute, it would be unconstitutional, not only because of the First Amendment (see Texas v. Johnson, 491 U.S. 397 (1989), but also because it would be unjusticiably vague.
–What is “physical desecration”? Is hanging a flag upside-down “desecration”? Is soaking it in mock blood? Dragging it through the mud? Cutting a hole in it?
–What is a “flag”? Is a computer animation of flag-burning a flag? Is a stars-and-stripes hat or pair of socks a “flag”? Is a postcard with a flag on it a “flag”? A picture of a flag?
–What is the “flag of the United States”? Is a Colonial-era flag protected? A pre-Alaska flag with 48 stars? A confederate flag?
–What about the rest of the Constitution besides the First Amendment? Current constitutional jurisprudence holds that later amendments do not necessarily repeal earlier parts of the Constitution (see, e.g., the interstate wine cases). If two consenting adults have cognizable rights in the privacy of their own bedrooms under the Fourth and Fourteenth Amendments (see Lawrence v. Texas, 539 U.S. 558 (2003)), then do they not also have the right to desecrate a flag in the privacy of their own bedroom?
In short, any legislation passed by Congress in the wake of the ratification of this amendment would crash head-on into the Vagueness Doctrine and other constitutional problems. And, in the end, it would not protect the flag (which, some of us still insist, does not need protection from anyone other than the government itself).
The Supreme Court has a nasty habit of declaring portions of the Constitution nullities — see this post. What would stop the Supreme Court from declaring — indeed what choice would they have but to declare — that this amendment and any legislation it were to spawn would be hopelessly unjusticiable and therefore merely a symbolic gesture with no real legal impact?
More thoughts from Below the Beltway, PoliBlog, Donklephant To The People.
Similar Posts:
- Early Thoughts on the Flag Amendment
- Another Frivolous State Flag Burning Prosecution
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- Flag Burning: Am I Missing Something?
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Many laws that are on the books are vaguley worded. Does anyone take the vagueness doctrine seriously?
I don't think it would work and I don't agree with it, but for some reason I'm apathetic…maybe its the heat
The Flag And Freedom
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Any law that outlawed Flag Burning would merely create a cottage industry that created flags with maroon/white/blue or 15 stripes and 60 stars.
This is merely an attempt to control thought (or pander to those that want to control thought) and it will be an utter failure – just like all such attempts to control thought.
On Flags, Democracy and the Will of the People
The Flag Desecration Amendment is rearing its ugly head once again, and though it will still almost certainly fail, its chances may be better than they've been for a long time.