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Amendment to ban flag
Senate rejects measure in close vote
December 12, 1995
Web posted at: 6:50 p.m. EST
WASHINGTON (CNN) -- In a narrow vote Tuesday, the Senate rejected a Constitutional amendment giving Congress the power to make burning or any other physical desecration of the flag illegal.
The 63-36 vote was three votes shy of the two-thirds majority needed to pass a Constitutional amendment. The House of Representatives passed a similar amendment in June by a 312-120 vote.
Senate Judiciary Committee Chairman Orrin Hatch, R-Utah, said President Clinton's opposition to the measure helped defeat it. Had the measure been adopted, it would have been the 28th amendment to the Constitution since it went into effect in 1789.
Hatch, who sponsored the Senate measure, argued that a flag amendment is needed to reverse two Supreme Court rulings in 1989 and 1990 that flag-burning was a protected First Amendment right. "Isn't it ridiculous that the American people are denied the right to protect their unique national symbol in the law?" he said.
But opponents said flag-burning was extremely rare, citing figures showing only three incidents in 1994 and zero in 1993. They held that the flag amendment was a categorical insult to First Amendment rights to free speech.
"Although the flag may stand alone, it should not and it cannot stand above our most cherished freedom of speech," said Sen. Joseph Biden, D-Delaware.
The Supreme Court struck down flag protection laws in 1989, saying flag-burning was a form of political protest protected as free speech by the Constitution's Bill of Rights.
The White House Tuesday said Clinton would be open to a federal law banning desecration of the flag, but that he disapproved of a constitutional amendment that would alter the Bill of Rights. "The guys in the powdered wigs had it about right in 1792," said White House spokesperson Mike McCurry.
The Senate measure was less sweeping than the House measure passed in June, which gave Congress and the states the power to determine what constituted unlawful desecration of the flag.
Hatch's version vested that authority only with the Congress.
Before the final vote, the Senate rejected, 71-28, a substitute version proposed by Sen. Mitch McConnell of Kentucky, the leading Republican critic of a constitutional amendment. The substitute would have banned desecration by legislative means rather than by changing the Constitution.
The Senate also defeated, 93-5, language proposed by Sen. Biden that would remove the word "desecration," which he said was too subjective, and empower Congress to bar burning, mutilation or trampling of the flag, regardless of intent.
Congress has proposed more than 10,000 amendments to the 206-year-old Constitution, but only 27 have been ratified. The Bill of Rights comprises the first 10.
The 26th Amendment, passed in 1971, lowered the voting age to 18. The next -- and last -- amendment, stating that at least one election must take place before congressional pay raises go into effect, was ratified in 1992, more than 200 years after Congress proposed it as part of the original Bill of Rights.
Warren S. Apel