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Flag Burning Debate (U.S.)

Last modified: 2015-05-09 by rick wyatt
Keywords: united states | burning |
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2005 Amendment

Here is a link to news reporting the 2005 law:

Brief summary:
A constitutional amendment banning flag burning would have to pass 38 states. The House on Wednesday approved a constitutional amendment that would give Congress the power to ban desecration of the American flag, a measure that for the first time stands a chance of passing the Senate as well. A 286-130 vote -- eight more than needed -- House members approved the amendment after a debate over whether such a ban would uphold or run afoul of the Constitution's free-speech protections.
Esteban Rivera, 23 June 2005

The intent of the amendment is to override the existing free speech protections when it comes to protecting the flag, but the way it's worded does leave some doubt as to how effective it would be in achieving that objective. The text says simply "The Congress shall have power to prohibit the physical desecration of the flag of the United States." But the Constitution has provisions allowing Congress to legislate in any number of areas. It can regulate interstate commerce, for example. Yet that doesn't mean it can pass a law under the guise of regulating interstate commerce that has the effect of restricting freedom of speech or the press or religion. So it would be interesting to see what the courts would have to say about laws passed under this new amendment, assuming it is ever adopted.

It's jumping the gun a little to focus at this point on state ratifications; the proposed amendment still has to pass the Senate before it goes to the states.
Joe McMillan, 23 June 2005