WASHINGTON – Justice John Paul Stevens twice voted to outlaw burning the U.S. flag, in memorable dissents that emphasized the flag's great symbolic value. Now, however, the 86-year-old justice says there is no need to amend the Constitution to protect Old Glory.
In 5-4 decisions in 1989 and 1990, the Supreme Court held that burning the flag is protected by the First Amendment.
"Ironically, those decisions seem to have solved the problem because no one burns flags anymore," Stevens said in a speech to the Chicago Bar Association in September. The justice's speech was recently aired on C-SPAN.
Congress has continued to try to amend the Constitution to permit legislation that would prohibit desecration of the flag. The Senate fell one vote short of the required two-thirds majority in June.
In 1989, Stevens, a World War II veteran, evoked images of the D-Day assault on Omaha Beach in writing that if liberty and equality are worth fighting for, "it cannot be true that the flag that uniquely symbolizes their power is not itself worthy of protection from unnecessary desecration."
He allowed then for the possibility that the court's majority might have gotten it right. "Conceivably, that value will be enhanced by the Court's conclusion that our national commitment to free expression is so strong that even the United States, as ultimate guarantor of that freedom, is without power to prohibit the desecration of its unique symbol. But I am unpersuaded."
Stevens said in Chicago he remains persuaded that he interpreted the Constitution correctly and continues to be proud of his dissents in the flag desecration cases.
Yet he paid homage to the five justices — William Brennan, Thurgood Marshall, Harry Blackmun, Antonin Scalia and Anthony Kennedy — who carried the day in both cases.
"If one were to burn a flag today, the act would convey a message of freedom that ours is a society that is strong enough to tolerate such acts by those whom we despise," Stevens said. "Today, one could not burn a flag without reminding every observer that we cherish our freedom."