Fort Worth Star-Telegram - Our Banner Deserves Constitutional Protection

Our Banner Deserves Constitutional Protection

Monday, June 14, 2004

Fort Worth Star-Telegram

By John Cornyn

For Americans everywhere, Flag Day is special. And today we mark not only the annual celebration of the U.S. flag but also the 50th anniversary of the modern Pledge of Allegiance.

The U.S. flag is a uniquely powerful symbol of our nation and of our commitment to freedom and democracy. Therefore, it is deeply regrettable that our democratic system of government to date has not properly protected it.

A June 2 hearing of the Senate subcommittee on the Constitution, Civil Rights and Property Rights got to the heart of this problem.

Legal scholars testified that our courts have become so hostile to democracy and to religious expression that even patriotic references to God, such as those contained in the Pledge of Allegiance, are being wrongly struck down by the courts.

Let's be clear: There is nothing unconstitutional about pledging allegiance to the flag. Yet a federal appeals court in San Francisco struck down the pledge anyway simply because it acknowledges that our nation was founded and exists "under God."

The U.S. Supreme Court will soon decide whether the First Amendment forbids schoolteachers across America from leading students in voluntary recitation of the pledge.

The vast majority of Americans believe that the pledge is constitutional and reject the views of the 9th Circuit Court and the American Civil Liberties Union. A majority of the Constitution subcommittee members filed the first amicus brief in the Supreme Court defending the pledge on its merits.

Many legal observers predict that the Supreme Court will reverse the 9th Circuit's decision. The same cannot be said, however, for protecting the flag itself.

The ability to protect the flag against physical desecration was not in doubt throughout most of American history. For example, in 1974, the Supreme Court held that "nothing prevents a legislature from defining with substantial specificity what constitutes forbidden treatment of United States flags."

Congress' power to protect the flag has also been supported by Chief Justices Earl Warren and William Rehnquist and Justices Byron White, Hugo Black, Abe Fortas, John Paul Stevens and Sandra Day O'Connor.

This power, however, was eviscerated in 1989 when the Supreme Court decided by a 5-4 majority that flag desecration constitutes speech protected by the First Amendment.

The flag deserves constitutional protection, and legal scholars agree that the Flag Protection Amendment is the only way to restore the law as it existed for most of our nation's history. That is why the Constitution subcommittee recently approved the amendment, and the full committee is scheduled to vote on it this month.

The First Amendment guarantees freedom of speech, and rightfully so. The requirement that constitutional amendments be approved by two-thirds of each chamber of Congress and three-fourths of the states guarantees that the liberties we hold dear will not be taken away just because the American people decide to take action to protect the U.S. flag against physical desecration.

The House has approved the Flag Protection Amendment five times in the past five Congresses-including just last year. All 50 state legislatures have approved resolutions asking Congress to give them the opportunity to vote on the amendment.

The last time that the amendment was brought to a vote on the Senate floor, in 2000, 63 senators voted in favor of it-just four votes shy of the necessary two-thirds. This year, the prospects for passage could be even better.

In times of national crisis and triumph alike, it is the U.S. flag that Americans look to with reverence. No other American symbol has been as universally honored.

In a time of war, it is even clearer that the flag plays a unique role in honoring the men and women of the military who died for the ideals that the flag represents.

If a soldier dies in defense of our nation, the United States gives the family a flag in honor of that service. To countless families, the flag is a treasured possession and a poignant memory of their loss.

There are many ways to express one's political views. But there is only one United States flag-and it deserves constitutional protection.

U.S. Sen. John Cornyn, R-San Antonio, is a former Texas attorney general and a former justice of the Texas Supreme Court. He heads the Senate subcommittee on the Constitution, Civil Rights and Property Rights.