On Friday, Rep. Steve Womack (R-AR) and Sen. Steve Daines (R-MT) “introduced a Constitutional Amendment to give Congress the authority to prohibit burning the American flag,” according to Daines’ official website.
H.J. Res. 65 reads (emphasis added):
Resolved by the Senate and House of Representatives of the United States of America in Congress assembled (two-thirds of each House concurring therein), that the following article is proposed as an amendment to the Constitution of the United States, which shall be valid to all intents and purposes as part of the Constitution when ratified by the legislatures of three-fourths of the several States within seven years after the date of its submission for ratification…
The Congress shall have power to prohibit the physical desecration of the flag of the United States.
Both Rep. Womack and Sen. Daines issued press releases regarding the proposed amendment.
Our flag is more than a cloth painted red, white, and blue. It is a symbol of worldwide freedom, unity, and liberty. It has guided troops into battle, flown during our triumphs and challenges, and is placed over the caskets of those who have paid the ultimate sacrifice. Generations have fought to defend our stars and stripes – and the American people have simply given too much for the flag to not have the ability to protect it.
Daines made a similar comment, adding that “our nation should always render the flag the honor and dignity it is due.”
Several veterans organizations have endorsed the proposal, including the American Legion of Montana and the Department of Montana Veterans of Foreign Wars.
On Saturday, President Trump offered a full-throated endorsement, tweeting:
All in for Senator Steve Daines as he proposes an Amendment for a strong BAN on burning our American Flag. A no brainer!
Although the tweet has approximately 70,000 “likes” as of publication, numerous Twitter users excoriated the president for his support of the proposed amendment.
Jeffery Guterman, a psychologist and self-described “ardent critic” of Trump, linked a clip from a 2012 interview in which the late-Supreme Court Justice Antonin Scalia stated that flag burning was indeed a form of free speech protected by the First Amendment:
If I were king, I would not allow people to go about burning the American flag. However, we have a First Amendment, which says that the right of free speech shall not be abridged – and it is addressed in particular to speech critical of the government. That was the main kind of speech that tyrants would seek to suppress. Burning the flag is a form of expression. Speech doesn’t just mean written words or oral words – [it could] be semaphore. Burning a flag is a symbol that expresses an idea. I hate the government; the government is unjust; whatever.
In 1989’s Texas v. Johnson and 1990’s U.S. v. Eichman, SCOTUS ruled that flag burning falls under the umbrella of free speech.
In the majority opinion for Texas v. Johnson, Justice Brennan wrote:
We can imagine no more appropriate response to burning a flag than waving one’s own, no better way to counter a flag burner’s message than by saluting the flag that burns, no surer means of preserving the dignity even of the flag that burned than by – as one witness here did – according its remains a respectful burial. We do not consecrate the flag by punishing its desecration, for in doing so we dilute the freedom that this cherished emblem represents.
In a concurring opinion, Justice Kennedy wrote:
Our colleagues in dissent advance powerful arguments why respondent may be convicted for his expression, reminding us that among those who will be dismayed by our holding will be some who have had the singular honor of carrying the flag in battle. And I agree that the flag holds a lonely place of honor in an age when absolutes are distrusted and simple truths are burdened by unneeded apologetics.
With all respect to those views, I do not believe the Constitution gives us the right to rule as the dissenting Members of the Court urge, however painful this judgment is to announce. Though symbols often are what we ourselves make of them, the flag is constant in expressing beliefs Americans share, beliefs in law and peace and that freedom which sustains the human spirit. The case here today forces recognition of the costs to which those beliefs commit us. It is poignant but fundamental that the flag protects those who hold it in contempt.
For all the record shows, this respondent was not a philosopher and perhaps did not even possess the ability to comprehend how repellent his statements must be to the Republic itself. But whether or not he could appreciate the enormity of the offense he gave, the fact remains that his acts were speech, in both the technical and the fundamental meaning of the Constitution.
The Daily Wire reached out to Rep. Womack and Sen. Daines for clarification, but as of publication, we have not received a reply.