Jurisdiction of the Federal Courts

In the year 1989 the Supreme Court amended the Constitution to insert the flag burning in Bill of Rights. This was done in response to a flag burning by a communist. This act received a wide spread criticism on the ground that freedom to burn the flag is not an extension of freedom guaranteed by the Constitution. The argument that the right to burn the flag is covered under the first amendment rights is not found to be tenable.

Congress passed legislation in the year 1968 (Flag Protection Act, 1989) with which it protected the sanctity of the American flag by protecting the flag against desecration. According to this legislation it was illegal to cast contempt either by word or act upon the American flag. The law provides that any person who knowingly casts contempt upon any flag of the United States by publicly mutilating, defacing, burning or trampling upon the flag is punishable with fine upto $ 1000 or with imprisonment or both.

“The term flag of the United States as used in this section, shall include any flag, standard colors, ensign, or any picture or representation of either, or of any part or parts of either, made of any substance or represented on any substance by which the average person seeing the same without deliberation may believe the same to represent the flag, standards, colors, or ensign of the United States of America”. In effect the law provided that the American flag should be revered and should not be abused in any demeaning act including the burning.

This position was changed by the judgment in the case of Texas v Johnson. The Fist Amendment has stood as the guard against free expression with its provisions to protect the mode of expression so long as the mode of expression does not physically harm another person or physically damage the property of another. The mere fact that the onlookers or listeners find the comments or actions of one to be offensive are not a basis for banning that form of expression.

The first amendment expressly provided for the compulsory flag salute and recitation of ‘Pledge of Allegiance’. In the amendment to the United States Constitution, the House of Representatives passed with a majority of more than the required two thirds the proposed amendment which removed the constitutional protection to the American flag from those who burn or otherwise physically damage the flag. It may be noted that the flag burning still remains an isolated and rare occurrence even with the resurgence in political protest prompted by the war in Iraq.

The proposed amendment to the Constitution to protect the desecration to the American Flag in the year 2006 was rejected by the Senate when the voting fell short of one vote short of the two thirds majority required for passage. People who opposed this amendment were of the view that the proposed amendment would have compromised the freedom of expression guaranteed by the first amendment. Considering the various past decisions of the courts especially one in the case of Texas v Johnson the desecration of American flag can not be considered as a crime.

In my opinion the flag represents the symbol of the country and there is no sanctity necessarily be attached to the flag except. Hence allowing burning it, to express ones opinion of disgust or frustration need not be construed as defamation to the flag. Irrespective of any act whether burning or keeping with high regard the flag remains a flag and no flags are burnt everyday to make this a constitutional issue.


Constitutional Rights Foundation Chicago ‘An Introduction to Trial by Jury’ <http://www. crfc. org/americanjury/introduction. html> accessed on 27th February 2008 E. Allan Farnsworth ‘An Introduction to the Legal System of the United States’ Third Edition Federal Court Concepts ‘Jurisdiction of the Federal Courts’ <http://www. catea. org/grade/legal/juris. html#r4> accessed on 26th February 2008 James MacGregor Burns et al ‘Government by the People: American Federalism’ <http://wps. prenhall. com/hss_burns_govbrief_5/0,7874,770075-,00. html> accessed on 27th February 2008