"Old Glory lost today," said Senate Majority Leader Bill Frist (R - Tenn.) when the Senate rejected, for the fourth time, the Flag Desecration Amendment. The vote, 66-34, fell one short of the two-thirds needed to send it to the states for approval.
The amendment states: "The Congress shall have power to prohibit the physical desecration of the flag of the United States." Contrary to Frist, this amendment is an election-year scam. It could be Exhibit A on "How Not to Mess with the Constitution."
The amendment was a response to Supreme Court decisions in Texas v. Johnson (1989) and U.S. v. Eichmann (1990). In Johnson, the Court denied that "a State may foster its own view of the flag by prohibiting expressive conduct relating to it." In Eichmann, the Court struck down, on free speech grounds, a federal statute punishing flag desecration. Neither case prevents punishment of a breach of the peace involving flag desecration.
Both cases are dubious in their interpretation of the freedom of speech. The invalidation in Johnson of the flag laws of 48 states also illustrates the rigidity created by the incorporation doctrine, the misinterpretation of the Fourteenth Amendment's guarantee of "due process of law" so as to bind every state and local government strictly and uniformly by the Court's interpretations of the Bill of Rights.
The amendment, however, is an imprudent response. It affirms the power of Congress only and withdraws from the states any power to protect the flag as a symbol of national unity. It concedes that Johnson and Eichmann have the same status, as "the supreme law of the land," as does the language of the Constitution itself. It was not until 1958, in Cooper v. Aaron, that the Court first claimed that its rulings were the supreme law of the land. Cooper held that state officials were bound by those rulings. There is no comparable holding that Court interpretations of the Constitution are binding in every respect on the Congress and the Executive Branch of the federal government. The Court's rulings, of course, bind the parties to the case. Those rulings and, to some extent, the Court's opinions, are precedents for future cases in the Supreme Court and other courts. The judiciary, however, is only one of the three branches. The other two branches have a duty to interpret and apply the Constitution as it relates to their own actions. The amendment accepts the idea that a Supreme Court decision is on the same level as the Constitution itself, so that the only way to undo it is another amendment. The amendment is also unclear as to whether it would give Congress power to criminalize a person's "physical desecration," in his home, of a flag he owns.
The amendment disregards an alternate remedy provided in the Constitution itself. Congress has power to control the entire jurisdiction of the lower federal courts and the appellate jurisdiction of the Supreme Court. Article III, Section 2 provides that the Supreme Court shall have appellate jurisdiction "with such exceptions, and under such regulations as the Congress shall make." Legal scholars debate it. But the 1869 case of Ex Parte McCardle, and other precedents and statements in later Supreme Court opinions, indicate that Article III, Section 2, means what it says. "As respects our appellate jurisdiction," said Justice William O. Douglas in 1968, "Congress may largely fashion it as Congress desires by reason of the express provisions of Section 2, Article III." If a federal statute were enacted depriving the lower federal courts and the Supreme Court of jurisdiction in cases involving federal and state flag desecration statutes, the state courts could rule on such cases without fear of being overruled by the Supreme Court.
A statute withdrawing Supreme Court appellate jurisdiction in flag cases would affirm that the constitutional checks and balances work. It would not overrule Texas v. Johnson or U.S. v. Eichmann. It would not change the Constitution, as would an amendment. The jurisdiction of the Court could be restored whenever Congress so chose.
The State is not God, and the flag is not an object of religious veneration. But, Congress and the states ought to be held to have a sufficient interest to protect the flag, as the unique national symbol, from public and contemptuous physical desecration even when that act is intended as political expression. The amendment, however, is phony electoral posturing that would deny the rightful power of the states and ignore the remedy provided by Article III, Section 2.
Professor Emeritus Rice is on the Law School faculty. He can be reached at (574) 633-4415 or at rice.1@nd.edu
The views expressed in this article are those of the author and not necessarily those of The Observer.
