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Flag Protection Amendment The American Legion Legislative Point Paper FLAG PROTECTION AMENDMENT “The Congress shall have power to prohibit the physical desecration of the flag of the United States.” A proposed amendment to the United States Constitution; which The American Legion fully supports. Background The U.S. Supreme Court’s 1989 decision in Texas v. Johnson held that the physical desecration of Old Glory was “protected speech.” In this case, the Court struck down existing flag protection laws in 48 states and the District of Columbia. The American Legion believes the Court misinterpreted the Constitution by calling flag desecration “speech” and that this imprudent decision ignored a century of American law and tradition that provided a measure of protection for the flag. Acts President Abraham of physical desecration are conduct, not speech. Lincoln once remarked, Accordingly, these acts should not be recognized “… If the policy of the and protected as “speech” by the First Amendment. government on vital President Abraham Lincoln once remarked, “… If questions affecting the the policy of the government on vital questions whole people is to be affecting the whole people is to be irrevocably fixed irrevocably fixed by by decisions of the Supreme Court the people will decisions of the have ceased to be their own rulers….” The Supreme Court the American people intend to give flag protection people will have ceased authority to Congress where it belongs and not to be their own rulers….” allow the Supreme Court to have the final say. The American Legion believes the final say should be with the people, as expressed through the Congress and the 50 state legislatures. All 50 state legislatures have passed memorializing resolutions asking Congress to pass this proposed amendment and send it to the states for ratification. The proposed amendment returns the power to protect Old Glory to the people. This is the true essence of the amendment and why it must prevail. With a new Congress, The American Legion Family has launched a renewed grassroots effort to generate support for the constitutional amendment. It is time to rally around the flag once again and tell legislators the public wants passage of the flag amendment. 9/28/2012 House Actions In the first session of the 112th Congress, Representative Jo Ann Emerson (MO) introduced House Joint Resolution (H.J. Res.) 13, a proposed constitutional amendment supported by The American Legion and the Citizens Flag Alliance (CFA). The resolution was referred to the Committee on the Judiciary at introduction on January 7. It was later referred to the House Subcommittee on the Constitution on January 24. The Judiciary Committee chairman is Rep. Lamar Smith (TX) and the chairman of the Constitution Subcommittee is Rep. Trent Franks (AZ). Unlike the past two Congresses, both Smith and Franks are known supporters of the proposed constitutional The American people amendment; therefore, the possibility of intend to return flag hearings in the House are good and the protection authority to chances of passage, at least in this body, are Congress where it belongs much improved. and not allow the Supreme Court to have The following list contains the 89 House the final say. members who, as of August 6, 2012, are cosponsors of the bill. If your representative is not listed please contact him or her and ask that they sign on as a cosponsor. COSPONSORS (89) Alexander, Rodney [LA-5] Marino, Tom [PA-10] Amodei, Mark E. [NV-2] McCarthy, Carolyn [NY-4] Austria, Steve [OH-7] McKinley, David B. [WV-1] Bachus, Spencer [AL-6] McMorris Rodgers, Cathy [WA-5] Bass, Charles F. [NH-2] Mica, John L. [FL-7] Berg, Rick [ND] Michaud, Michael H. [ME-2] Biggert, Judy [IL-13] Miller, Jeff [FL-1] Bishop, Rob [UT-1] Murphy, Tim [PA-18] Bordallo, Madeleine Z. [GU] Myrick, Sue Wilkins [NC-9] Boustany, Charles W., Jr. [LA-7] Noem, Kristi L. [SD] Canseco, Francisco "Quico" [TX-23] Palazzo, Steven M. [MS-4] Coffman, Mike [CO-6] Pearce, Stevan [NM-2] Crawford, Eric A. "Rick" [AR-1] Peterson, Collin C. [MN-7] DesJarlais, Scott [TN-4] Platts, Todd Russell [PA-19] Duncan, John J., Jr. [TN-2] Pompeo, Mike [KS-4] Ellmers, Renee L. [NC-2] Posey, Bill [FL-15] Fitzpatrick, Michael G. [PA-8] Rahall, Nick J., II [WV-3] Flores, Bill [TX-17] Reed, Tom [NY-29] Forbes, J. Randy [VA-4] Rehberg, Denny [MT] Fortenberry, Jeff [NE-1] Rigell, E. Scott [VA-2] Foxx, Virginia [NC-5] Roe, David P. [TN-1] Frelinghuysen, Rodney P. [NJ-11] Rogers, Mike D. [AL-3] 2 Gosar, Paul A. [AZ-1] Rogers, Mike J. [MI-8] Green, Gene [TX-29] Rooney, Thomas J. [FL-16] Griffin, Tim [AR-2] Ros-Lehtinen, Ileana [FL-18] Guinta, Frank C. [NH-1] Ross, Dennis [FL-12] Hall, Ralph M. [TX-4] Ross, Mike [AR-4] Harris, Andy [MD-1] Rothman, Steven R. [NJ-9] Hartzler, Vicky [MO-4] Runyan, Jon [NJ-3] Heller, Dean [NV-2] Schock, Aaron [IL-18] Huelskamp, Tim [KS-1] Scott, Austin [GA-8] Johnson, Bill [OH-6] Shimkus, John [IL-19] Jones, Walter B., Jr. [NC-3] Simpson, Michael K. [ID-2] Jordan, Jim [OH-4] Smith, Adam [WA-9] Keating, William R. [MA-10] Smith, Christopher H. [NJ-4] King, Steve [IA-5] Tiberi, Patrick J. [OH-12] Kline, John [MN-2] Walden, Greg [OR-2] Lance, Leonard [NJ-7] West, Allen B. [FL-22] Latham, Tom [IA-4] Wilson, Joe [SC-2] Lee, Christopher J. [NY-26] Wittman, Robert J. [VA-1] Lipinski, Daniel [IL-3] Wolf, Frank R. [VA-10] LoBiondo, Frank A. [NJ-2] Womack, Steve [AR-3] Luetkemeyer, Blaine [MO-9] Young, C.W. Bill [FL-10] Lummis, Cynthia M. [WY] Young, Don [AK] Manzullo, Donald A. [IL-16] Senate Update On June 14, 2011, Senator Orrin Hatch (UT), along with Max Baucus (MT), introduced a companion bill, Senate Joint Resolution (S.J. Res.) 19. The resolution was referred to the Committee on the Judiciary at introduction. The Judiciary Committee is chaired by Senator Patrick Leahy (VT), and the chairman of the Constitution, Civil Rights, and Human Rights Subcommittee is Sen. Dick Durbin (IL). Both are outspoken opponents of the flag amendment. As in past years, this will be an uphill fight in the Senate. Nevertheless, we intend to persevere until we prevail. The following list contains the 36 Senate members who are cosponsors of the bill. If your senators are not listed please contact them and ask that they sign on as cosponsors. COSPONSORS (36) Ayotte, Kelly [NH] Inhofe, James M. [OK] Barrasso, John [WY] Isakson, Johnny [GA] Baucus, Max [MT] Johanns, Mike [NE] Blunt, Roy [MO] Johnson, Tim [SD] Boozman, John [AR] Kyl, Jon [AZ] Burr, Richard [NC] Lugar, Richard G. [IN] Chambliss, Saxby [GA] Moran, Jerry [KS] 3 Coats, Daniel [IN] Nelson, E. Benjamin [NE] Coburn, Tom [OK] Risch, James E. [ID] Collins, Susan M. [ME] Roberts, Pat [KS] Cornyn, John [TX] Rockefeller, John D., IV [WV] Crapo, Mike [ID] Rubio, Marco [FL] Enzi, Michael B. [WY] Sessions, Jeff [AL] Graham, Lindsey [SC] Snowe, Olympia J. [ME] Grassley, Chuck [IA] Stabenow, Debbie [MI] Heller, Dean [NV] Thune, John [SD] Hoeven, John [ND] Toomey, Pat [PA] Hutchison, Kay Bailey [TX] Vitter, David [LA] Next Steps Given the makeup of the 112th Congress and the chairs of the relevant committees, the chances for hearings on the flag protection amendment, at least in the House, were initially thought to be good. Neither the House nor the Senate has held a vote on this amendment since 2006. But with the turnover in the House as a result of the 2010 elections, known supporters now hold the leadership positions in that body. However, House leadership has shown no desire to bring this to the House floor for a vote, and back on to the radar screen. With few legislative days left in the current session – due to upcoming congressional and presidential elections – the chances of action on these measures is dim. Past precedent has shown that constitutional amendments can take a long time, but they can be accomplished. The successful effort to change constitutional law, and in particular to overturn a Supreme Court decision, is dependent on a sense of conviction. Thus, we have a great advantage, because the American people love their flag. And that, in the end, is our treasure on which we can, should, and will draw. 4 .
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