Proposed Constitutional Amendment Seeks to Grant Congress Power to Ban Flag Desecration

This joint resolution proposes a constitutional amendment that would explicitly give Congress the authority to pass laws banning the physical desecration of the U.S. flag. Right now, flag desecration is generally considered protected symbolic speech under the First Amendment, based on decades of Supreme Court rulings. This amendment aims to change that. If passed by Congress, this proposal would then need ratification by three-fourths of the state legislatures—38 states—within seven years to become the 28th Amendment.

The Fine Print: Shifting the Power Balance

What this resolution does is shift who gets to decide what counts as protected speech versus what counts as a crime. Currently, the Supreme Court has the final say, interpreting the First Amendment to protect acts like burning the flag as a form of protest. This amendment essentially overrides that judicial interpretation by giving the legislative branch—Congress—the explicit constitutional power to step in and make flag desecration illegal. For the average person, this means that an act of protest that is currently legal could become a federal crime if Congress chooses to pass a law defining and punishing "physical desecration" after this amendment is ratified. The resolution itself doesn't define what "desecration" means, leaving that wide-open for future Congresses to decide.

Real-World Impact: Speech vs. Symbol

Imagine a scenario where a frustrated military veteran or a political activist burns a flag in protest of a government policy. Under current law, that action is protected speech, however offensive it may be to others. If this amendment passes and Congress uses its new power to criminalize flag burning, that same person could face federal charges. This directly impacts the rights of individuals whose acts of symbolic protest, which often involve physical items like flags, could be criminalized. It creates a tension between protecting a national symbol and preserving the broad scope of free expression, particularly for those using dramatic, physical gestures to voice dissent. The scope of this new law could be broad, potentially affecting everything from deliberate burning to accidental damage, depending on how Congress defines the term.

The Ratification Clock

The seven-year deadline for state ratification is a key procedural element. This means the debate over whether to restrict symbolic speech for the sake of protecting a national symbol will play out very publicly in state capitals across the country over the next decade. If 38 states ratify it, the amendment is added, and Congress gains the authority. If not, the proposal expires. For busy citizens, this isn't just a federal issue; it’s a state issue that will require local engagement and attention as state legislatures decide whether to approve a constitutional change that fundamentally alters the balance between the First Amendment and government authority.