By Peter Sachs
Q: I've heard a lot of talk about flag burning these last few days. What's all the hype about amending the Constitution? Why not just make a law? -Anonymous, Rhode Island
A: Congress has tried to pass a constitutional ban on flag desecration - four times in the Senate and six times in the House. Lawmakers have also tried to criminalize flag burning through simple legislation - that is, statutory law. But the Supreme Court has ruled that those laws violate the First Amendment of the Constitution, and the right to free speech.
But if someone burns a flag, they aren't saying anything, you might reply.
True enough, but in the 1970s and 1980s, the Supreme Court issued a series of opinions exploring what it calls "symbolic speech" or "speech-acts" that don't necessarily involve written or spoken words but have some deeper meaning anyway.
On Capitol Hill, the House has passed the flag desecration amendment every time it has taken up the issue. But the Senate rejected flag amendments in 1990, 1995 and 1999, and then again this past Tuesday by a single vote.
Congress approves bills all the time, but amending the Constitution is a big deal-it has only happened 27 times in the history of our country. While the Supreme Court can - and does -- strike down laws Congress makes, it can't undo a constitutional amendment.
Consider that, regardless of where you stand on the issue, amending the Constitution often takes a long time, and it's a pretty rare occurrence.
In the last 200 years, only 17 amendments have been tacked on to the Bill of Rights -- the first ten amendments. So it stands to reason that when you feel the need to amend the Constitution, it ought to be for a pretty serious reason, right?
Let's talk about Prohibition for a minute. For 13 years, between 1920 and 1933, it was illegal to drink alcohol in America. The thing is, it took several years to get that amendment passed in the first place. And by 1923, people were trying to get it overturned, but they would have to wait a whole decade before another constitutional amendment reversed the first one.
It wasn't long after Prohibition passed that bad things started happening: organized crime soared and people were drinking just as much as before. The government had a hard time cracking down on the speakeasies all of the other underground activity, and a lot of people died from drinking alcohol laced with other chemicals.
Senator Robert Byrd, a Democrat from West Virginia, thinks the same thing could have happened if the flag amendment had passed.
He said that passing the amendment would inflame First Amendment defenders, who would burn even more flags as a way to test the law. How many burnt flags are we talking about, anyway? There were four incidents in 2005 in the entire United States, Democratic senator Dick Durbin, of Illinois, claimed.
With the exception of the Prohibition amendments, Byrd noted this week, every other amendment passed since the Bill of Rights deals with either extending freedoms--like the right to vote--to citizens, or defining how the government functions.
"Clearly, the flag desecration amendment goes in a new direction," Byrd observed on the Senate floor this week. "It extends, rather than narrows, the powers of government . . .and it does not protect a basic civil right."