# Will a flag-burning amendment pass in the states? **URL:** \ **Category:** Great Debates\ **Created:** [June 3, 2003, 1:50am UTC](https://boards.straightdope.com/t/will-a-flag-burning-amendment-pass-in-the-states/179280 "2003-06-03T01:50:41Z")\ **Posts on this page:** 20\ **Page:** 4
**Author:** ![Blalron](https://avatars.discourse-cdn.com/v4/letter/b/35a633/32.png) [@Blalron](https://boards.straightdope.com/u/Blalron)\ **Post date:** [June 4, 2003, 8:26pm UTC](https://boards.straightdope.com/t/will-a-flag-burning-amendment-pass-in-the-states/179280/61 "2003-06-04T20:26:10Z")
> [@](#): > > How would you define “flag?” Will the definition of “flag” be forever frozen in time as the flag currently is, or will it be subject to change? If Puerto Rico became a state and we then had 51 stars in our flag, would it be OK to burn the 50 star flag? [quote] How would you define “desecration?” \*\* Another good question. If I made a cake with the american flag as a design on it, would I be desecrating the american flag by cutting it up? ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [June 4, 2003, 8:42pm UTC](https://boards.straightdope.com/t/will-a-flag-burning-amendment-pass-in-the-states/179280/62 "2003-06-04T20:42:47Z")
> [@](#): > > \*Originally posted by Diogenes the Cynic \* > \*\*Questions: > > What is “symbolic value” and how can it be destroyed? > > How would you define “flag?” > > How would you define “desecration?” \*\* Do you think these are tough questions? Every law has terms that may require precise definition. If I seek to prohibit stalking, are you going to start asking what acts, precisely, constitute stalking? If I drive by your house once a day, slowing down to stare at you as I pass, is that stalking? How about twice? Ten times? But I don’t need to answer it that precisely. When I write the law against stalking, I will prohibit conduct directed at another person with the intent to place, or when the actor knows or reasonably should know that the conduct places that other person in reasonable fear of death, criminal sexual assault, or bodily injury. Then a jury is responsible for deciding if twice-per-day drive-bys, with stare, are enough to reasonably place the target of the stares in fear of death, bodily injury, or criminal sexual assault. So, too, with the issue of flag desecration. Words have their ordinary meaning. I would prohibit any person from publicly burning with contempt, mutilating, defacing, defiling, or trampling upon the flag of the United States. It would be up to a jury to hear the specifics of a particular case and decide if the conduct was such that it violated the law. That’s how the law works, and it’s not unique to flag cases. - Rick ---
**Author:** ![Blalron](https://avatars.discourse-cdn.com/v4/letter/b/35a633/32.png) [@Blalron](https://boards.straightdope.com/u/Blalron)\ **Post date:** [June 4, 2003, 8:55pm UTC](https://boards.straightdope.com/t/will-a-flag-burning-amendment-pass-in-the-states/179280/63 "2003-06-04T20:55:36Z")
> [@](#): > > That’s how the law works, and it’s not unique to flag cases. It’s going to be silly seeing people thrown in prison for cutting up birthday cakes, or wearing bandannas with flag designs… I can very easily imagine that happening. And having it being constitutionally sanctioned makes me very uneasy. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [June 4, 2003, 9:07pm UTC](https://boards.straightdope.com/t/will-a-flag-burning-amendment-pass-in-the-states/179280/64 "2003-06-04T21:07:04Z")
> [@](#): > > \*Originally posted by Blalron \* > \*\*It’s going to be silly seeing people thrown in prison for cutting up birthday cakes, or wearing bandannas with flag designs… I can very easily imagine that happening. And having it being constitutionally sanctioned makes me very uneasy. \*\* Well, let’s return to the stalking law and see if it suffers from the same problem - which, if I understand you, is the concern that innocent conduct would be prohibited by the law. Suppose I drive by your house once, after our nasty romantic break-up, slow down, and stare. You call the police and ask them to throw me in prison based on the anti-stalking law I quoted above. That, too, would be pretty silly – but what’s to prevent it from happening? Or should we repeal the anti-stalking law? ---
**Author:** ![Diogenes\_the\_Cynic](https://avatars.discourse-cdn.com/v4/letter/d/e99b99/32.png) [@Diogenes\_the\_Cynic](https://boards.straightdope.com/u/Diogenes_the_Cynic)\ **Post date:** [June 4, 2003, 9:15pm UTC](https://boards.straightdope.com/t/will-a-flag-burning-amendment-pass-in-the-states/179280/65 "2003-06-04T21:15:07Z")
> [@](#): > > \*Originally posted by Bricker \* > \*\*Do you think these are tough questions? > > Every law has terms that may require precise definition. If I seek to prohibit stalking, are you going to start asking what acts, precisely, constitute stalking? If I drive by your house once a day, slowing down to stare at you as I pass, is that stalking? How about twice? Ten times? > > But I don’t need to answer it that precisely. When I write the law against stalking, I will prohibit conduct directed at another person with the intent to place, or when the actor knows or reasonably should know that the conduct places that other person in reasonable fear of death, criminal sexual assault, or bodily injury. Then a jury is responsible for deciding if twice-per-day drive-bys, with stare, are enough to reasonably place the target of the stares in fear of death, bodily injury, or criminal sexual assault. > > So, too, with the issue of flag desecration. Words have their ordinary meaning. I would prohibit any person from publicly burning with contempt, mutilating, defacing, defiling, or trampling upon the flag of the United States. It would be up to a jury to hear the specifics of a particular case and decide if the conduct was such that it violated the law. > > That’s how the law works, and it’s not unique to flag cases. > > - Rick \*\* The words “flag” and “desecration” do _not_ have ordinary meanings. You absolutely do have try to draw some legal definition for a 'flag" at the very least. It’s not up to a jury to _write_ the law, just to decide if one has been broken. You can’t hand them a sloppy and ill defined law and them ask them to determine if it has been violated. Frankly, your own proposed definition is so overly broad and all inclusive that it would scare the hell out of me as a citizen. ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [June 4, 2003, 9:17pm UTC](https://boards.straightdope.com/t/will-a-flag-burning-amendment-pass-in-the-states/179280/66 "2003-06-04T21:17:35Z")
> [@](#): > > \*Originally posted by Bricker \* > \*\*\*Originally posted by Blalron \* > The amendment which came later on would supercede any previous amendments to the contrary. Yes. Although the rules of statutory construction mandate that to the extent possible, both laws must be read _in pari materia_ - that is, together, giving full effect to each if possible. So if an amendment passed forbidding criticism of the president, that would not invalidate your First Amendment right to, for example, criticize your senators. The two amendments would be read together, with the result being that Congress shall make no law prohibiting the freedom of speech, EXCEPT when it comes to the president. - Rick \*\* [/QUOTE] But would the “presidential criticism amendment” have to **explicitly** state that it overrides the 1st amendment? I’m thinking of the 21st amemdment, although that nullified the entire 18th amendment, not just part of it. ---
**Author:** ![El\_Zagna](https://avatars.discourse-cdn.com/v4/letter/e/d2c977/32.png) [@El\_Zagna](https://boards.straightdope.com/u/El_Zagna)\ **Post date:** [June 4, 2003, 9:42pm UTC](https://boards.straightdope.com/t/will-a-flag-burning-amendment-pass-in-the-states/179280/67 "2003-06-04T21:42:50Z")
**Briker** , just what do you expect would happen if such an amendment were ratified? Do you think there would actually be _fewer_ flag burning cases than the [7 per year](http://www.esquilax.com/flag/faq.html) top end estimate? What do you really hope to accomplish with this? ---
**Author:** ![2sense](https://avatars.discourse-cdn.com/v4/letter/2/e47774/32.png) [@2sense](https://boards.straightdope.com/u/2sense)\ **Post date:** [June 4, 2003, 9:46pm UTC](https://boards.straightdope.com/t/will-a-flag-burning-amendment-pass-in-the-states/179280/68 "2003-06-04T21:46:53Z")
It seems I wasn’t clear enough. Let me try again. When someone makes unqualified statements about groups from America’s revolutionary period such as **“The Framers thought…”** or **“The Founders said…”** they are most likely **talking out their ass**. It is a misconception to assume that these groups had unanimity on most subjects. They did not. Of course there were items that were universally agreed upon or nearly so but they aren’t the type of thing that someone would normally feel the need to inject into a debate. It should go without saying that the Founders all supported the Revolution, for instance. But outside of those rare occurances **sweeping generalizations** about the Framers or Founders are **irresponsible** because they **promote ignorance.** Clear? **Renob** claims that the Founders the warned against the tyranny of the majority. This nation was founded by the Whigs. Gordon Wood has this to say about them: > [@](#): > > Since the American Whigs, like Locke before them, regarded the people as a unitary, property-holding, homogeneous body- not “the vile populace or rabble of the country, nor the the cabal of a small number of factious persons, but,” said John Adams quoting Pufendorf, “the greater and more judicious part of the subjects, of all ranks”- **few found it necessary or even intelligible to work out any theoretical defense of minority rights against the collective power of the majority of the people.** Although some Americans, like the Tory Daniel Leonard, were grappling with the problem before the Revolution, charging that the people were the real source of despotism, their arguments were quickly rebuffed by the rabid Whigs. **In the Whig conception of politics a tyranny by the people was theoretically inconceivable** , because the power held by the people was liberty, whose abuse could only be licentiousness or anarchy, not tyranny. As John Adams indignantly pointed out, the idea of the public liberty’s bing tyrannical was illogical: “a democratical despostism is a contradiction in terms.” > > ( bolding mine ) > > _The Creation of the American Republic, 1776-1787_ ( Chapter 2, Section Three ) That is not to say that _some_ Founders didn’t later warn against a tyranny of the majority. Perhaps they did though **Renob** has produced no citation. But clearly not _all_ of them did so. Can we please be more accurate in our rhetoric? ---
**Author:** ![Blalron](https://avatars.discourse-cdn.com/v4/letter/b/35a633/32.png) [@Blalron](https://boards.straightdope.com/u/Blalron)\ **Post date:** [June 4, 2003, 9:51pm UTC](https://boards.straightdope.com/t/will-a-flag-burning-amendment-pass-in-the-states/179280/69 "2003-06-04T21:51:20Z")
I have never burned a flag in my entire life, but if this amendment is ratified I guarrantee you that I will go out and burn a flag in protest. ---
**Author:** ![capacitor](https://avatars.discourse-cdn.com/v4/letter/c/e47774/32.png) [@capacitor](https://boards.straightdope.com/u/capacitor)\ **Post date:** [June 4, 2003, 10:59pm UTC](https://boards.straightdope.com/t/will-a-flag-burning-amendment-pass-in-the-states/179280/70 "2003-06-04T22:59:44Z")
What if you use a paper flag as a tobacco blunt? ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [June 5, 2003, 3:23am UTC](https://boards.straightdope.com/t/will-a-flag-burning-amendment-pass-in-the-states/179280/71 "2003-06-05T03:23:51Z")
> [@](#): > > \*Originally posted by Diogenes the Cynic \* > The words “flag” and “desecration” do _not_ have ordinary meanings. You absolutely do have try to draw some legal definition for a 'flag" at the very least. It’s not up to a jury to _write_ the law, just to decide if one has been broken. You can’t hand them a sloppy and ill defined law and them ask them to determine if it has been violated. > > Frankly, your own proposed definition is so overly broad and all inclusive that it would scare the hell out of me as a citizen. In Virginia, the following laws exist today, although their enforcement is prohibited by Supreme Court decisions: > [@](#): > > § 18.2-486. Definition of flag, standard, etc. > > The words flag, standard, color, ensign or shield, as used in this article, shall include any flag, standard, color, ensign or shield, or copy, picture or representation thereof, made of any substance or represented or produced thereon, and of any size, evidently purporting to be such flag, standard, color, ensign or shield of the United States, or of this Commonwealth, or a copy, picture or representation thereof. > > § 18.2-488. Mutilating, defacing, etc. > > No person shall publicly burn with contempt, mutilate, deface, defile, trample upon, or wear with intent to defile any such flag, standard, color, ensign or shield. ---
**Author:** ![Diogenes\_the\_Cynic](https://avatars.discourse-cdn.com/v4/letter/d/e99b99/32.png) [@Diogenes\_the\_Cynic](https://boards.straightdope.com/u/Diogenes_the_Cynic)\ **Post date:** [June 5, 2003, 5:27am UTC](https://boards.straightdope.com/t/will-a-flag-burning-amendment-pass-in-the-states/179280/72 "2003-06-05T05:27:40Z")
> [@](#): > > \*Originally posted by Bricker \* > \*\*In Virginia, the following laws exist today, although their enforcement is prohibited by Supreme Court decisions: \*\* :eek: You realize that definition would include napkins, children’s drawings, clothing, even photographs in a newspaper? This is ok with you? Who wrote that fucking law, Mussolini? ---
**Author:** ![Tarantula](https://avatars.discourse-cdn.com/v4/letter/t/e274bd/32.png) [@Tarantula](https://boards.straightdope.com/u/Tarantula)\ **Post date:** [June 5, 2003, 9:35am UTC](https://boards.straightdope.com/t/will-a-flag-burning-amendment-pass-in-the-states/179280/73 "2003-06-05T09:35:06Z")
From a reading of this thread alone, I would say that statistically (albeit a ridiculously small sample group) people are against this type of ammendment - so it probably won’t pass anyway. Am I being naive ? Let’s know… ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [June 5, 2003, 12:33pm UTC](https://boards.straightdope.com/t/will-a-flag-burning-amendment-pass-in-the-states/179280/74 "2003-06-05T12:33:38Z")
Well, Mussolini’s tenure as a Virginia legislator _has_ been sadly overlooked by history… But even if the law includes napkins and children’s drawings, it doesn’t punish anyone unless they publicly burn it with contempt, or damage it in some way with the intent to defile it. It would thus only reach conduct that is intended to be contemptuous, not conduct that did not intend disrespect. Consider a courtroom. In court, you may not exercise your First Amendment right to criticize the judge - that conduct is called “contempt of court” is is defined in much the same way as we’re talking about here. Precious few people have trouble grasping the concept that while they’re in court, they may not act contemptuously towards the judge, even though they would have every right to do so if they passed the judge on the sidewalk. In other words, it’s not difficult to apply the law in a commonsense manner, affecting only that conduct that is legitimately intended to show contempt to the flag. If a child’s drawing of the flag is crumpled and thrown away along with the rest of the day’s art, it’s easy to see that no particular disrespect towards the flag was intended. At the heart of it, you believe such a criminal restriction is _wrong_. And you’re perfectly welcome to attack any proposed amendment on that ground. But you cannot sustain an argument that we cannot craft and apply a law that will reach only the conduct in question, and exclude innocent conduct. It’s been done for countless other types of crimes. It can easily be done here. - Rick ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [June 5, 2003, 12:35pm UTC](https://boards.straightdope.com/t/will-a-flag-burning-amendment-pass-in-the-states/179280/75 "2003-06-05T12:35:40Z")
> [@](#): > > \*Originally posted by Tarantula \* > From a reading of this thread alone, I would say that statistically (albeit a ridiculously small sample group) people are against this type of ammendment - so it probably won’t pass anyway. > > Am I being naive ? > > Let’s know… I’m not sure I understand your point, unless it’s a wry commentary on the perversity of the universe, or some such. If a only small percentage of people oppose the amendment, it would seem more likely to pass. If a majority of people opposed the amendment, it would seem more likely to fail. What am I missing? - Rick ---
**Author:** ![Guinastasia](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/guinastasia/32/5751_2.png) [@Guinastasia](https://boards.straightdope.com/u/Guinastasia)\ **Post date:** [June 5, 2003, 12:38pm UTC](https://boards.straightdope.com/t/will-a-flag-burning-amendment-pass-in-the-states/179280/76 "2003-06-05T12:38:55Z")
Why is it so horrid for people to show contempt towards the flag? Don’t we have that right, even if others disagree with it? It’s just a piece of cloth, for crying out loud! I cannot believe anyone doesn’t seriously see this as a violation of the First Amendment! ---
**Author:** ![Tarantula](https://avatars.discourse-cdn.com/v4/letter/t/e274bd/32.png) [@Tarantula](https://boards.straightdope.com/u/Tarantula)\ **Post date:** [June 5, 2003, 12:44pm UTC](https://boards.straightdope.com/t/will-a-flag-burning-amendment-pass-in-the-states/179280/77 "2003-06-05T12:44:15Z")
\*\* Bricker \*\* - No the \* sample \* is small - not the amount of people against it. I think that the majority of posters in this thread _are_ against the ammendment. However, this is just my opinion - please don’t slay me for this… ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [June 5, 2003, 1:21pm UTC](https://boards.straightdope.com/t/will-a-flag-burning-amendment-pass-in-the-states/179280/78 "2003-06-05T13:21:44Z")
> [@](#): > > \*Originally posted by Guinastasia \* > \*\*Why is it so horrid for people to show contempt towards the flag? Don’t we have that right, even if others disagree with it? > > It’s just a piece of cloth, for crying out loud! I cannot believe anyone doesn’t seriously see this as a violation of the First Amendment! \*\* Guin, excuse me, please, but I think you’re missing the point of a constitutional amendment. Right now, what you say is true: the Supreme Court has decided that burning to show contempt is an action that is protected by the First Amendment. But if the Constitution is amended, then it won’t be a violation of the First Amendment any more… we would in essence be changing the meaning of the First Amendment to add, “…except in the case of the US flag…” at the end. Plenty of good and reasonable arguments can be made about why this is a bad idea, why it’s contrary to our true ideals as a country, and so forth… but you cannot say that we can’t pass the amendment because it would violate the First Amendment. That’s the whole point of amendments… they amend. 🙂 - Rick ---
**Author:** ![El\_Zagna](https://avatars.discourse-cdn.com/v4/letter/e/d2c977/32.png) [@El\_Zagna](https://boards.straightdope.com/u/El_Zagna)\ **Post date:** [June 5, 2003, 1:24pm UTC](https://boards.straightdope.com/t/will-a-flag-burning-amendment-pass-in-the-states/179280/79 "2003-06-05T13:24:29Z")
**Bricker** , I’m going to reask my earlier question. What do you _hope_ this amendment would accomplish and what do you _expect_ it to accomplish? ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [June 5, 2003, 2:00pm UTC](https://boards.straightdope.com/t/will-a-flag-burning-amendment-pass-in-the-states/179280/80 "2003-06-05T14:00:36Z")
> [@](#): > > \*Originally posted by bnorton \* > \*\ ***Bricker** , I’m going to reask my earlier question. What do you _hope_ this amendment would accomplish and what do you _expect_ it to accomplish? \*\* I expect that this amendment will permit Congress, and the states, to pass laws forbidding public displays of contempt towards and desecration of the flag of the United States. I hope that Congress and the states will enact such laws, and that, evetually, people will refrain from such acts under the threat of jail. I recognize that some people will feel compelled, at the outset, to show their distate for such laws by violating them. The result of this, I hope, is that such people will gain or augment a criminal record of their own as the price to pay for such demonstration. As time goes on, and it becomes clear that violating the law will simply earn you criminal sanctions, I hope people will lose their taste for such demonstrations, and the end result will be far fewer incidents of flag desecration than now happen. - Rick [Previous page](https://boards.straightdope.com/t/will-a-flag-burning-amendment-pass-in-the-states/179280.md?page=3) [Next page](https://boards.straightdope.com/t/will-a-flag-burning-amendment-pass-in-the-states/179280.md?page=5)