[JURIST] A proposed constitutional amendment [SJ Res 12 text, PDF] to prohibit physical desecration of the American flag failed by one vote late Tuesday to get the two-thirds Senate approval necessary to send it on to the states for ratification. Senators voted 66 in favor, and 34 against [roll call]. The US House of Representatives passed the amendment [JURIST report] last summer. The last attempt to pass the amendment in the Senate failed by four votes in 2000. While supporters of the provision defended it as fundamentally patriotic and a restoration of a public right eroded by recent court rulings [Senator Orrin Hatch floor statement], opponents insisted that it would unduly limit free speech [Senator Patrick Leahy floor statement]. The US Supreme Court ruled in 1989 in Texas v. Johnson [opinion text] that flag burning is protected under the First Amendment.

The legislatures of every state save Vermont have at some point passed resolutions encouraging Congress to pass the amendment. On the other hand, a 2005 First Amendment Center survey [PDF text] found that 63% of those polled opposed amending the constitution to prohibit flag burning.

After the vote, amendment sponsor Senator Orrin Hatch (R-UT) said:

This amendment would give back to Congress the power the Supreme Court usurped from it 17 years ago when five unelected justices rejected 200 years of statutes that protected Old Glory. This amendment wouldn’t change the Constitution, it would restore it to what it was before the Supreme Court altered it.

While banning flag desecration is important to the majority of Americans, this amendment is about more than the flag. It’s a message to activist judges that enough is enough. This amendment is a way for Congress to stand up and say to the Supreme Court we won’t sit idly by when you to usurp the power of the people.

This is a setback, but it’s not a final defeat. For protecting the Stars and Stripes, I will not give up and I will not surrender.