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The proposed amendment read: "Congress shall have the power to prohibit the physical desecration of the flag of the United States."
It actually got 66 votes, but fell one vote short of the two-thirds majority it needed to be sent on to the states. Fifty-two of the Senate's 55 Republicans voted for the amendment and were joined by 14 Democrats, including the usually level-headed Dianne Feinstein of California. (Not surprisingly, both Arizona senators, Jon Kyl and John McCain, voted for the amendment.)
The Senate has failed to pass the amendment several times since 1990 and, obviously, it was the closest vote ever. The more-reactionary House has actually passed the amendment numerous times, including last year. By definition, House members are more heavily involved in CYA activities.
The only thing that kept it from passing in the Senate this time were the 30 Democrats who were joined by three Republicans and the Senate's lone independent, Jim Jeffords of Vermont, in voting nay. Those three Republicans were Lincoln Chafee of Rhode Island, who is generally moderate; Robert Bennett of Utah(!); and right-wing Mitch McConnell, who is the Senate majority whip. To his credit, McConnell voted no on strict constructionist grounds, believing that the proposed amendment doesn't rise to the standard of constitutional imperative.
Now, I would never burn a U.S. flag, and I sincerely hope that I don't know anybody who would, either. But the courts have repeatedly said that such action, while reprehensible, falls under the broad spectrum of freedom of speech.
I can see that argument, but I've always opposed the amendment on more common-sense grounds. How in the world could it possibly be enforced?
There was a similar furor back in the 1990s. At the time, I went to a pro-flag rally on the Fourth of July and conducted a nonscientific survey. I asked more than 100 people to tell me the color of the top stripe of the flag, the color of the bottom stripe, the number of stars and stripes, and (the killer question) how the stars are arranged.
Most people knew that the top stripe was red, but fewer knew that the bottom one is, too. Among those who got the top stripe correct, only about 80 percent of them knew the bottom stripe's color, even though there are an odd number of stripes. One poor guy, who identified himself as a veteran, told me that the top stripe was blue.
Most also knew that there are 13 stripes and 50 stars, but not one person could tell me how the stars are arranged. Over the past few weeks, I've asked those questions of neighbors and friendsas well as politicians who appear on the radio show I do with Emil Franziand again, that last question has gone unanswered.
In a small way, it's like that gag Comedy Central's Stephen Colbert pulled on Congressman Lynn Westmoreland (R-Ga.), who supports having the Ten Commandments displayed in schools and public buildings, but when asked by Colbert to name them, couldn't do it.
That's kinda tricky, actually. In the 10 that I learned as a Catholic, the first three basically define the Big Guy, followed by the one about honoring your parents. Then come the meat-and-potatoes ones that appear to put lying, adultery, stealing and murder on pretty much equal footing, followed by the last two about coveting thy neighbor's goods and wife. The non-Catholic version has four about God and only one all-purpose coveting clause.
This brings me to my flag dilemma. What if somebody burned a 48- or 49-star flag that they found in the attic? Would that be desecration under the proposed amendment? What if somebody made a flag and arranged the stars in five rows of 10 (which is NOT the way they are on the real flag)? Would it be desecration to burn that piece of cloth? Or, for that matter, would it be a crime to make that flag? How about if somebody made a flag that vaguely resembled a U.S. flag and then burned it in front of a cop? How could that possibly stand up in court?
"I think it was a U.S. flag, but we really can't tell by the ashes."
Put simply, this amendment wouldn't protect the flag; it would trivialize it. It would be nice if Utah's other senator, Orrin Hatch, and the other backers of the proposed amendment would recognize that fact. Alas, it's a lot easier to wrap oneself in the American flag than it is to properly identify it. STom Danehy is a columnist for the Tucson Weekly.
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