Published January 14, 2015
A Senate panel approved a constitutional amendment Tuesday that would ban the burning of the American flag, but opponents of the measure say there's not enough support in the full, GOP-controlled Senate to push through a change to the Constitution (search).
The Senate Judiciary Committee approved a one-line change to the Constitution — "The Congress shall have power to prohibit the physical desecration of the flag of the United States" — on an 11-7 vote, which pushes the issue to the full Senate.
"The flag deserves constitutional protection, and legal scholars agree that this amendment is the only way to restore the law as it existed for most of our nation's history," said Sen. John Cornyn, R-Texas.
Even though some Democrats are joining with the majority Republicans to support the change in the closely-divided Senate, there won't be enough support to get the required 67 votes needed to approve a constitutional amendment, said Sen. Russ Feingold, D-Wis., who opposes the change.
Many opponents say such an amendment would limit free speech rights.
"Thankfully, they do not have the votes to pass it on the floor so this becomes something of a political exercise in an election year," Feingold said.
A proposed constitutional amendment needs a two-thirds majority in the House and Senate and approval by three-fourths of state legislatures. The flag-burning amendment (search) passed the House on a 300-125 vote in June 2003.
Lawmakers have debated the flag amendment almost annually since a 5-4 Supreme Court decision in 1989 saying flag-burning was a protected free speech right. That ruling overturned a 1968 federal statue and flag-protection laws in 48 states.
In 1990, Congress passed another law protecting the flag, but the Supreme Court (search) that year, in another 5-4 ruling, struck it down as unconstitutional.
"This amendment gives Congress the right to do what it was able to do back in 1989," said Sen. Dianne Feinstein, D-Calif. "It offers a way to return the nation's flag to the protected status it deserves."
Since the Supreme Court ruling, the House has approved flag amendments in 1995, 1997, 1999 and 2001, all by more than 300 votes. The Senate, in votes in 1995 and 2000, came up with only 63 votes, four short of the two-thirds majority needed.
The Bush administration supports the flag-burning amendment, while Democratic presidential challenger John Kerry and his running mate John Edwards do not think the Constitution should be amended to add the ban.