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Amendment Falls One Vote Short in Senate: Issue Doesn't Merit Constitutional Change, Some Say

Posted on: Wednesday, 28 June 2006, 03:00 CDT

By Craig Gilbert, Milwaukee Journal Sentinel

Jun. 28--Washington -- In a classic hot-button election-year debate, the Senate fell one vote short Tuesday of the two-thirds needed to pass a constitutional amendment aimed at protecting the American flag from desecration.

Republican Sen. Orrin Hatch of Utah said the measure was just a "simple little constitutional amendment," but opponents argued that it would defile the "sanctity" of the Bill of Rights.

With the Iraq war serving as backdrop to much of the infighting on Capitol Hill, both sides Tuesday invoked the sacrifice of American troops, and both sides claimed to be honoring America's highest values with their position.

"We should not sacrifice the principles of freedom and liberty contained in our nation's founding document in order to punish a few misguided malcontents," Sen. Russ Feingold said.

He voted no, as did Wisconsin's other Democratic senator, Herb Kohl.

The vote was 66-34.

"This is about a lot more than trying to protect the flag," Hatch said of the Flag Protection Amendment.

Hatch said the larger issue was the willingness of Congress to stand up to the judicial branch.

"The Supreme Court should not be deciding difficult social issues that ought to be decided by the elected representatives," Hatch said.

Tuesday's vote capped the latest effort to pass a flag desecration amendment in the aftermath of the Supreme Court's 1989 ruling that flag burning was a protected form of free political expression.

It also was the closest its supporters have come. The House passed the amendment by more than two-thirds last year, and ratification by 38 states was not much in doubt.

The full amendment reads:

"The Congress shall have the power to prohibit the physical desecration of the flag."

All but three Republicans voted for the amendment, although one of the opponents was the No. 2 Republican in the Senate, Mitch McConnell of Kentucky, a self-styled First Amendment purist.

Of 44 Democrats, 30 voted against it, and 14 voted in favor.

Constitution rarely amended

The refrain from opponents was that the amendment was politically motivated, was unnecessary as a practical matter and would tar the rarely amended Constitution.

Some Democrats argued that it was more important to protect the so-called founding document than the flag.

"A desecrated flag is replaceable. Desecrated rights are lost forever," Senate Democrat John Kerry said.

"We are undermining the foundation of our democracy in order to squash a gnat," said his Massachusetts colleague, Edward Kennedy.

Senate Democratic leader Harry Reid voted for the amendment but assailed Republicans for not using the time on issues that he said were more important.

Both Wisconsin Democrats echoed that last point.

"Why should we amend the Constitution . . . to address a problem that for all intents and purposes does not exist?" Kohl said an interview.

He and Feingold both suggested that laws banning flag burning would have the perverse but real effect of producing more burned flags.

"We'll have flag burnings, just to challenge what people have done. (They'll) say, 'You took away my right to express myself, now I'm going to really go out and do it,' " Kohl said.

Election-year politics

Both Wisconsin Democrats also suggested that the amendment was largely motivated by election-year politics.

"Some of the supporters of the amendment see it as a way to try and rally their base, cast aspersions on people who would vote against the amendment as if they're not patriotic," Kohl said.

But supporters offered a variety of arguments for the amendment.

Kentucky Republican Jim Bunning said the flag deserved protection as the national symbol and called "horse manure" the notion that the amendment would incite more incidents of desecration.

Several lawmakers said the Iraq war gave more urgency and added rationale to their efforts.

Patrick Brady, chairman of the Citizens Flag Alliance, the coalition of groups backing the amendment, said Tuesday that for him the issue wasn't the number of attacks on the flag.

In fact, he agreed with some opponents that the amendment would lead in the short run to more flag burnings.

"I'm sure initially that will be true," Brady said. "If they do burn it, I could care less."

Brady said he wasn't interested in tough penalties for flag desecration, either.

He suggested the equivalent of a traffic ticket.

But Brady said the main issue was to defeat the argument that burning a flag is a form of speech.

The White House also backed the amendment.

After the vote, President Bush said in a statement that he believes the American people "deserve the opportunity to express their views on this important issue."

Bush said that "by showing respect for our flag, we show reverence for the ideals that guide our nation. And we show appreciation for the men and women who have served in defense of those ideals."

Alternative defeated

Before voting on the amendment, the Senate defeated an alternative supported by many Democrats.

That measure was aimed at flag desecration but took the form of a statute, not a constitutional amendment.

It also was more narrowly drawn to try to pass constitutional muster.

Instead of being aimed at flag desecration per se, the proposal would have criminalized four specific cases: when someone damages a flag with "the primary purpose and intent to incite or produce violence"; when someone intentionally threatens another person by burning a flag; when someone damages a flag belonging to the United States; or when someone damages a flag on government property.

It got only 36 votes. But it also allowed almost all opponents of the constitutional amendment to still go on record supporting a law against flag burning.

Like the majority of Democrats, Kohl voted against the constitutional amendment but for the statute against flag burning.

Kohl said in a statement Tuesday: "I have always supported a statutory amendment to prohibit flag desecration because it would accomplish the same goal as a constitutional amendment without altering the document that defines our freedom.

Of the 100 members of the Senate, Feingold was the only one who voted against both proposals.

In a statement, Feingold said: "The Supreme Court has twice held that criminalizing flag desecration violates the First Amendment. Flag burning is unacceptable, but outlawing certain forms of flag destruction based on the message that the misguided person is trying to convey raises obvious First Amendment problems.

"The vast majority of flag desecration incidents can be prosecuted under criminal trespass, destruction of private property, and other state and local criminal statutes. We do not need a federal statute to handle the handful of other incidents that occur each year, and we certainly should not amend the Constitution to make such a statute possible."

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Copyright (c) 2006, Milwaukee Journal Sentinel

Distributed by Knight Ridder/Tribune Business News.

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Source: The Milwaukee Journal Sentinel

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