"The Congress shall have power to prohibit the physical desecration of the flag of the United States."The effect of this text is simple. It takes the matter out of the hands of the courts - all of them. It prevents the court from imposing its own views on the constitutionality of laws relating to the treatment of flags, and instead retains it in the hands of Congress.
I think my thoughts on free speech are pretty well known, and specifically commented on the flag issue before, but simply put - this law is unnecessary:
You have the freedom of speech - which includes the right to make a complete and total ass of yourself.Have no fear though, as someone in Congress will resurrect this amendment and attempt ratification again. And again.
Meanwhile, Democrats tried to push support for a law that would essentially do the same thing:
The Senate also rejected an alternative put forward by assistant Democratic leader Dick Durbin of Illinois. The bill, not a constitutional amendment, would have made it against the law to damage the flag on federal land or with the intent of breaching the peace or intimidation. It also would have prohibited unapproved demonstrations at military funerals. The vote was 36-64.Unfortunately for Durbin, that law was quite likely unconstitutional on its face, and would have quickly succumbed to court cases limiting its effect.
There is something curious, however, in the vote taken by Sen. Clinton (D-NY). She's on the record as saying that she's against a constitutional amendment, but would have been for a law prohibiting conduct including flag burning. I guess she forgets that Texas v. Johnson would render that law moot (and likely unconstitutional). Yet she voted for Durbin's amendment. Trying to have it both ways is a common trait in politicians who are seeking higher office. Clinton is no exception.
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