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Protecting the Flag

Column by Sen. Trent Lott   Filed 6/30/06 GCN

  On July 4th Mississippi is a sea of stars and stripes – red, white and blue.  Our flag reminds us that the freedoms Americans enjoy were outlined when our founders signed a Constitution that began with three simple words:  “We the people.”  They were words scripted in big bold letters with those thick, broad ink quills our framers used so masterfully.  But recent actions in Washington cast doubt on whether “we the people” really means much these days.

Case in point is the Senate’s most recent vote to give Americans the ability to protect their flag.  A majority of the Senate – Republicans and Democrats, liberals and conservatives – voted in favor of a constitutional amendment that would allow the people, through their elected representatives, to pass laws protecting the American flag.   It would give elected officials the freedom to pass measures protecting our flag from those very few among us who desecrate it.  It failed with 66 votes, only one shy of the 67 needed to send constitutional amendments to the states for ratification.

Some cheered the failure of this amendment.  They say it’s not needed and that it infringes on “free speech.”  But anyone who read the amendment could see it has absolutely nothing to do with “free speech” and everything to do with “we the people’s” ability to make our own laws.

This amendment doesn’t even mention speech.  It simply would allow lawmakers across our nation to make laws protecting our flag from any sort of  physical desecration.  In no instance does it propose to limit speech.  It very simply says, “the Congress shall have power to prohibit the physical desecration of the flag of the United States.”

Is the physical desecration of our flag free speech?  While most Americans don’t think so, a slim minority do and recently have convinced the courts to side with them.

In 1990 five unelected judges on the Supreme Court trumped centuries of tradition and held that burning the American flag is constitutionally-protected speech.  This decision instantly overturned existing flag desecration statutes in 48 states and the District of Columbia. 

In response, Senator Joe Biden, a Democrat, then the Chairman of the Senate Judiciary Committee, introduced the Flag Protection Act.  This measure was supported by 91 Senators and signed by the President.  But the new law was challenged in court and, again, the court sided with those who would not protect our flag, ruling that the Flag Protection Act was unconstitutional.

Since 1990, a majority of the American people who want the flag protected from physical desecration has been thwarted by the courts, as has the Senate, which has passed flag protection measures in each of the last five Congresses.  Keep in mind that prior to 1990 the Supreme Court had consistently recognized the power of Americans to protect our flag.  What changed?  The make up of our court, for sure, but not the attitude of the American people who still overwhelmingly want to see our flag protected.

As we celebrate America’s 230th birthday, this issue gives most Americans uneasiness about the people’s right to govern themselves without the courts’ permission.  It’s supposed to work the other way around.  That’s why those bold big letters in the Constitution  read “we the people” and not “we the courts.”

Flag protection needs only one more vote in the Senate.  It may take more time, but the overwhelming majority of Americans will act to protect our flag.  “We the people” will prevail, and that’s something else to celebrate this July 4th.


Senator Lott welcomes any questions or comments about this column. 

Write to: U.S. Senator Trent Lott, 487 Russell Senate Office Building, Washington, D.C. 20510 (Attn: Press Office) or Email

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