ABA President Calls Constitutional Flag Burning Amendment a “Profound And Unwelcome Change in Our Society”

WASHINGTON, D.C., March 10, 2004 – American Bar Association President Dennis W. Archer today called on the United States Senate to reject a proposed constitutional amendment authorizing Congress to prohibit physical desecration of the flag, calling it bad constitutional policy, bad law, a diversion from the real issues facing our country, and a profound and unwelcome change in our society and culture.

In a statement submitted to the Senate Judiciary Committee, Archer said, “The Senate has considered and rejected similar constitutional amendments on several occasions over the past 14 years. We urge you again to resist the emotional appeals of those who argue that protecting the flag from desecration through adoption of a constitutional amendment is an act of patriotism.”

“The proposed amendment, which would curtail the protection of individual liberties afforded by the Bill of Rights (a document that has not been changed in its 213 years of existence), should be rejected as bad constitutional policy and bad law,” he said.

The proposed constitutional amendment would reverse the Supreme Court’s 1989 decision in Texas v. Johnson, which held that the First Amendment protects peaceful protest even when such protest involved flag desecration, and authorize Congress to criminalize such peaceful acts of political expression.

“We must not forget that what we salute when we rise to honor the flag is not the bunting, but the ideals of the Constitution for which it stands — including freedom of expression and the right to express dissenting views regarding Government actions through our writings, speech or actions,” said Archer.

While the ABA shares every American’s respect for the flag, he said, restricting Americans’ fundamental freedoms would not protect the values embodied in the flag. “In attempting to protect the flag against offensive but peaceful political expressions,” said Archer, “this proposed amendment diminishes the very freedoms the flag represents…. Rather than protecting patriotism, this amendment would dishonor it.”