Propose Flag-Burning Amendment for USA's 250th Anniversary
In a move that has sparked debate and controversy, President Donald Trump has unveiled a series of executive orders aimed at further curtailing crime and disorder nationwide. One of these orders, in particular, has caught the attention of the public - an order that requires the attorney general to prioritise the prosecution of those who burn the American flag.
The order is framed to permit prosecution only when a flag is burned in a way that is not otherwise protected speech. This move comes as a response to public opinion, which has long disdained expressive flag burning. According to a 2006 Pew report, nearly three-quarters of Americans believe flag burning should be illegal, and roughly half believe it should be unconstitutional. In a June 2020 poll, a plurality of Americans still said flag burning should be illegal.
The president's affection for the flag mirrors this public sentiment. In 1989, the Supreme Court ruled that flag burning is protected by the First Amendment in the case of Gregory Lee Johnson. However, the Court's ruling depended on the twists and turns of twentieth-century free speech law. Chief Justice William Rehnquist, in his dissent in Johnson, argued that flag burning was not worthy of constitutional protection due to its potential to incite a breach of the peace. Rehnquist believed that one of the high purposes of a democratic society is to legislate against conduct that is regarded as evil and profoundly offensive to the majority, such as flag burning.
However, an originalist Court might have ruled differently in the Johnson case, according to Chad Flanders, professor of law at St. Louis University. An amendment giving Congress the power to prohibit the physical desecration of the flag has passed the House before, though not the Senate. Republicans do not have the requisite two-thirds majority to pass a constitutional amendment unilaterally, but they might be able to scare up sufficient votes from more patriotic Democrats to advance the measure to the states.
It is important to note that the Court upheld a flag desecration statute as late as 1907. Flag burning was a popular mode of protest during the Vietnam War. The flag is regarded with "an almost mystical reverence" by millions of Americans, as Rehnquist wrote.
As the debate surrounding the executive order continues, it serves as a reminder of the complex relationship between free speech, patriotism, and the law in the United States. The order, if enforced, could mark a significant shift in the way flag desecration is viewed and punished in the country. However, it also raises questions about the balance between individual rights and societal norms, a balance that has been a central theme in American law for centuries.
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