July 29, 2005

Once again, in their never ending search to find ways to acquire more power over the conduct of the American people, members of Congress want to amend the Constitution and grant the federal government the constitutional authority to punish the physical desecration of the flag of the United States. The author believes this amendment, even if it’s passed by Congress and ratified by the States, will have no legal effect on flag desecration because the amendment is constitutionally defective and conflicts with the First Amendment.

In order to understand this assertion, it is necessary to review the flag desecration issue. Following the United States Supreme Court’s decision in TEXAS V. JOHNSON, which overturned, on First Amendment grounds, Johnson’s conviction for desecrating a flag in violation of Texas law, Congress passed the Flag Protection Act of 1989. The Act criminalized the conduct of anyone who “knowingly mutilates, defaces, physically defiles, burns, maintains on the floor or ground, or tramples upon” a United States flag, except conduct related to the disposal of a “worn or soiled” flag.

The following year, in UNITED STATES V. EICHMAN ET AL, the Supreme Court struck down the Flag Protection Act on First Amendment grounds:

“Appellees’ prosecution for burning a flag in violation of the Act is inconsistent with the First Amendment. The Government concedes, as it must, that appellees’ flag burning constituted expressive conduct, and this Court declines to reconsider its rejection in Johnson of the claim that flag burning as a mode of expression does not enjoy the First Amendment’s full protection.”

“While flag desecration…is deeply offensive to many, the Government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.”

Since this decision, the House of Representatives passed, on four occasions, a constitutional amendment that would give Congress the power to prohibit the physical desecration of the flag of the United States. All four times the measure died in the Senate and was never submitted to the States for consideration.

Last month, the House again passed the amendment. At the present time, the amendment is pending in the Senate and will come to the floor for consideration this summer. If the Senate adopts the flag amendment and it’s ratified by the States, many groups and individuals opposed to the amendment claim it will alter the First Amendment. The author believes it will do no such thing.

When the Bill of Rights was submitted to the States for ratification, it contained a preamble declaring its purpose. The preamble declares that the purpose of the proposed amendments was to prevent the federal government from “misconstruing or abusing its powers.” To accomplish this, “further declaratory and restrictive clauses” were being recommended. The amendments, when adopted, did not grant any individual rights. They placed additional restraints on the powers of the federal government.

The First Amendment states:

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

If flag desecration is a mode of expression that enjoys full protection under the First Amendment, as stated by the Court, and the Amendment restrains Congress’ power to legislate concerning the rights enumerated therein, then it could be argued that the act of proposing a different amendment to circumvent that restriction is a violation of the First Amendment unless the new amendment specifically alters or repeals the existing one. The proposed flag amendment does not contain any verbiage that alters or amends the right to freedom of expression or the First Amendment.

Another problem with the proposed flag amendment is they cannot have two amendments in conflict with each other. For example, in 1919 the Eighteenth Amendment was adopted. It gave Congress the power to prohibit “the manufacture, sale, or transportation of intoxicating liquors.” In 1933, the Twenty First Amendment removed this power by specifically repealing the Eighteenth Amendment. If the Twenty First Amendment had simply stated that Congress shall not have the power to prohibit “the manufacture, sale, or transportation of intoxicating liquors,” then two conflicting amendments would have been part of the Constitution at the same time. That is why the Eighteenth Amendment had to be specifically repealed before the Twenty First Amendment could go into effect. The author believes the same principle would apply to the flag amendment and the First Amendment. If an existing amendment is not specifically altered or repealed, how can a new amendment take effect?

Since flag desecration is protected by the First Amendment, the author believes it will continue to be protected by the Amendment irrespective of whether Congress and the States enact the proposed flag amendment. As stated above, Congress would have to repeal the First Amendment in whole or in part to get around the Amendment’s restraint on its power concerning the right to freedom of expression. Otherwise, flag desecration would be protected by one amendment and prohibited by another.

Several conservative commentators, who claim to be champions of the Constitution, have stated that the Supreme Court was legislating from the bench when it decided that flag desecration is protected by the First Amendment. They claim that since freedom of expression is not specifically enumerated in the First Amendment, there is no “constitutional right” to freedom of expression. Since the Bill of Rights, which should have been called the “Bill of Prohibitions,” did not grant any constitutional rights, this claim has no merit. However, even if freedom of expression did not fall under the First Amendment as these commentators claim, it would fall under the Ninth Amendment:

“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”

Thus, this Amendment would present the same constitutional problems for the flag amendment discussed above concerning the First Amendment.

In addition, since the right to freedom of expression is not a right granted by the Constitution, Congress cannot use the Constitution as a weapon to take it away. If Congress had this power, then it could take a document that was written to define and limit the powers of the federal government and use it to strip the American people of their individual rights.

Those in favor of the proposed amendment should stop waving their flag for a moment and consider what Congress is actually attempting to do. They are attempting to take a right that is protected from congressional intrusion by an Amendment to the Constitution and circumvent it through a constitutional slight of hand. Every freedom loving American should be vehemently opposed to any attempt by Congress to remove or alter restraints on their power.

According to the Citizens Flag Alliance, recent surveys show that 80 percent of the American people believe it’s important to adopt an amendment that would make flag desecration illegal. From my research, organizations like the Citizens Flag Alliance failed to disclose the fact that the right to freedom of expression and the First Amendment would have to be altered or repealed in order for the flag amendment to go into effect. If they had, I would be willing to bet that 90 percent of their respondents would have been against the amendment.

The proposed flag amendment shows that we have mental midgets in Congress when it comes to constitutional issues. These individuals think they can get around the prohibitions enumerated in the First Amendment by simply passing another amendment. Sorry boys and girls the Constitution does not work that way. Rights and powers do not appear and disappear in the Constitution by implication or conjecture. You have to specifically alter or repeal an existing amendment before a new amendment can go into effect. In addition, you cannot have two amendments in the same document that conflict with each other. The author believes the proposed flag desecration amendment is not worth the paper it’s written on as long as the First Amendment remains intact and I double dog dare Congress to attempt to alter or repeal it.

Note: Under the rules of statutory construction, when there are two conflicting statutes, the one passed last usually negates the other one. It has been asserted that this principle will apply to the proposed flag amendment. The author disagrees with this assertion and believes the proposed amendment is defective on its face even though there is supposedly no such thing as an unconstitutional amendment.

It would be one thing if Congress was attempting to modify one provision with another as they did with the Twelfth Amendment. That Amendment slightly revised the mode of electing the President and Vice-President but did not change the basic process. The proposed flag amendment goes way beyond that and attempts to negate a right and grant the federal government a new power so it does not fall in that class of amendments.

As stated above, the rights and powers enumerated in the Constitution do not appear and disappear by implication or conjecture. Nowhere in the proposed flag amendment does it state what right or amendment is being altered or repealed in order for the new amendment to go into effect. Is Congress attempting to alter the right to freedom of expression? Is Congress attempting to repeal the right to freedom of expression? Is Congress attempting to create an exception to the right to freedom of expression? Just what are they trying to do?

The Supreme Court has acknowledged that the right to freedom of expression is an unalienable right of the people that comes from a higher source than government or a written constitution. That being the case, then where is Congress getting the power to alter or nullify a god-given right through the amendment process? Where does Congress get the power to criminalize the exercise of a god-given right?

In addition, the Court has ruled that the right to freedom of expression exists independent of the Constitution and does not depend on that document for its existence. How can government use the Constitution to alter or repeal something the Constitution did not create? How can government use the Constitution to alter or repeal something that exists independent of the Constitution?

If the flag amendment passes the Senate, it will mark the first time since the adoption of the Bill of Rights that Congress has submitted an amendment to the States that attempts to covertly alter or repeal a god-given right recognized by an amendment to the Constitution. Since there is no precedent in the history of the Constitution for what is taking place, the author believes a case can be made that the proposed amendment is defective on its face and conflicts with an established Amendment to the Constitution. Even though this assertion is untested, it poses an interesting legal question and is the basis for the claim that the flag amendment conflicts with the First Amendment.

Note: See also "Constitutional Hypocrisy and the Flag Desecration Amendment"

If you are interested in finding out more about the Constitution, take a look at this book. I use it in many of my articles and it is the best book I've found on this subject. Bob

The Federal Government: Its True Nature and Character: Being a Review of Judge Story's Commentaries on the Constitution of the United States.

Reprint of the 1868 edition. ''Perhaps the ablest analysis of the nature and character of the federal government that has ever been published. It has remained unanswered.'' This review of Judge Story's Commentaries on the Constitution of the United States is perhaps the ablest analysis of the nature and character of the Federal Government that has ever been published. It has remained unanswered. Indeed, we are not aware that any attempt has been made to challenge the soundness of its reasoning. The great vise of Judge Story and the Federalists consisted in desiring the clothe the federal government with almost monarchical power, whereas the States had carefully and resolutely reserved the great mass of political power for themselves. The powers which they delegated to the federal government were few, and were general in their character. Those which they reserved embraced their original and inalienable sovereignty, which no state imagined it was surrendering when it adopted the consitution. Mr Madison dwelt with great force upon the fact that ''a delegated is not a surrendered power.'' The states surrendered no powers to the federal government -- they only delegated them. 160 pages.

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