The United States Flag Protection Amendment
To Passage

On March 25, 1998, in Washington, D.C., The U.S. Senate Judiciary Subcommittee on the Constitution, Federalism, and Property Rights held hearings on Senate Joint Resolution 40, a proposed constitutional amendment which would return to the American people the right to protect their flag. The amendment reads “Congress shall have power to prohibit the physical desecration of the flag of the United States.”

Those testifying in favor of S.J. Res. 40 included a diverse group of individuals including a Northwestern University Law Professor, a Pennsylvania union official, the Attorney General from the state of Idaho, a Wisconsin State Legislator, a school official and medal of Honor Recipient, Major General Patrick Brady (US Army, Ret.), Chairman of the Board of Directors of The Citizens Flag Alliance, Inc. In his testimony, Major General Brady noted the widespread public support for a flag protection amendment by stating, “The flag certainly evokes a sentimental response from any of us. It is a constant reminder of the horrors suffered by so many to bring us the bounty that is America. But it was adopted for practical purposes, it was the glue between the Declaration of Independence and the Constitution, it unified 13 very diverse and disparate colonies.
“It marked our place among the nations of the world. It was the trademark of freedom. Sentiments aside, its greatest worth is practical. The flag ignited the fire in the hearts of our patriots. Burning the flag will put that fire out.”

On June 21, 1989, the United States Supreme Court, in Texas v. Johnson, invalidated flag protection laws in 48 states and the District of Columbia. To date, 49 state legislatures have passed memorializing resolutions asking Congress to pass an amendment and send it back to the states for ratification.

Prof. Stephen Presser, Northwestern University School of Law, characterized the effort to pass a constitutional amendment as “a vital exercise in participatory democracy, in popular sovereignty, and...deserving of support for that reason alone. Popular sovereignty is the basis for our constitutional system, and Article V, which authorized the Amendment process, recognized this. Where the Supreme Court has misconstrued the Constitution, the Amendment process allows the people to correct the Court’s error, as was done, for example, in the case of the Thirteenth, Fourteenth, Sixteenth, and Nineteenth Amendments.”

A flag-protection amendment, H.J. Res. 54, easily passed in the U.S. House of Representatives on June 12, 1997, by an overwhelming vote of 310-114. The amendment was introduced in the U.S. Senate on Feb. 4, 1998 by Senators Orrin Hatch (R-UT) and Max Cleland (D-GA). The amendment has 61 co-sponsors to date, just six shy of the two-thirds necessary for passage. A vote on S.J. Res. 40 is expected in the fall in 1998.

“There are great and gifted Americans on both sides of this issue and learned opinions, but only one fact -- the American people want their flag rights returned. Whatever some concerns some may have, I pray they will muster the courage to believe that this once they may be wrong, and the American public may be right. I hope they will have the compassion to defer to those great blood donors to our freedom -- many whose final earthly embrace was in the folds of Old Glory,” concluded General Brady.

The Citizens Flag Alliance is a broad-based, national coalition seeking to return to the American people the right to protect the American flag from acts of destruction. Its membership includes more than 125 civic, fraternal (such as the Scottish Rite, Southern and Northern Masonic Jurisdictions), veteran, minority, and business organizations including the Fraternal Order of Police, National Grange, Benevolent & Protective Order of Elks, The American Legion, AMVETS, Gold Star Wives, and the African-American Women’s Clergy Association. The flag amendment is now one step closer to final passage. May that last step be taken and the American flag forever protected from desecration.