Background on the Flag Desecration Amendment

Document Date: March 4, 2004

Background Information on the Flag Desecration Constitutional Amendment

How many times has the Constitution been amended?
Since the original Bill of Rights was adopted, the United States Constitution has been amended only 17 times, almost invariably for important purposes, including abolishing slavery and extending the right to vote to African Americans and women. Two of the amendments enacted and then repealed Prohibition.

What is required to amend the Constitution?
A two-thirds majority of those present in both the Senate and the House must vote for the amendment. Three-quarters of the states must then vote to ratify the amendment. Every state in the U.S. has passed a resolution supporting the flag desecration constitutional amendment leaving little doubt that it would be ratified if passed by Congress.

The timetable below outlines important events in the history of the movement to amend the Constitution to ban flag desecration.

1969Street v. New York. The Supreme Court overturns the conviction of WWII veteran and Bronze Star honoree Sydney Street who burned his own flag in protest after learning that civil rights activist James Meredith had been shot during a voter registration march in the South.1989Texas v. Johnson. The Supreme Court rules that burning the American flag is a constitutionally protected form of free speech.
A constitutional amendment that would have banned flag desecration failed to win the necessary two-thirds vote in the Senate, with only 51 Senators voting in favor of the amendment and 48 voting in opposition.


Congress passes the Flag Protection Act enabling the punishment of anyone who “knowingly mutilates, defaces, physically defiles, burns, maintains on the floor or ground, or tramples upon any U.S. flag?”
U.S. v. Eichmann. The Supreme Court rules that the Flag Protection Act violates free speech rights.


By a vote of 312 to 120, the House passes a constitutional flag amendment. In the Senate, however, the amendment fails by a vote of 63 to 36–only four votes shy of the necessary two-thirds majority needed to pass the amendment.


The House approves a constitutional amendment to outlaw flag desecration by a vote of 310 to 114.


A flag amendment proposal dies in the Senate after Republican leaders fail to get unanimous consent to bring the proposal to the floor.


The House passes a flag desecration amendment by a vote of 305 to 124–only fifteen votes more than required for passage.


By a vote of 63 to 37, the amendment falls four votes short of the two-thirds necessary for passage. Included among those who oppose the amendment are two Senators who formerly supported it.


The margin of passage again falls in the House when it passes a constitutional amendment to ban flag desecration by a vote of 298 to 125–only eight votes more than required.


The amendment passes the House by roughly the same margin as it did two years earlier by a vote of 300 to 125


The flag amendment is again introduced in Congress as H.J. Res. 10 in the House and as S.J. Res. 12 in the Senate. It narrowly passes the House by a vote of 286 to 130.

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