Flag-burning amendment fails by a vote
The Senate defeated by one vote a constitutional amendment banning desecration of the American flag.
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WASHINGTON (CNN) -- The Senate by a single vote Tuesday rejected a proposed constitutional amendment to ban desecrating the American flag.
The measure would have rolled back a 1989 Supreme Court decision allowing it. The vote was 66-34.
A two-thirds majority is needed to pass a proposed constitutional amendment. It then would need ratification by 38 of the 50 states.
The measure was the latest in a series of controversial election-year votes engineered by the chamber's GOP leaders in an effort to entice the party's conservative base to the polls in November.
Fourteen Democrats, including Senate Minority Leader Harry Reid of Nevada, voted in favor of the measure. Three Republicans, including majority whip Mitch McConnell of Kentucky, voted against it. (Watch how the Senate decided on the issue -- 2:11)
Senators began debating the amendment Monday, along with an alternative proposal from Sens. Hillary Clinton, D-New York, and Bob Bennett, R-Utah. They wanted to ban flag desecration by law rather than by constitutional amendment. That proposal, too, was shot down Tuesday, 64-36. (Full story)
A constitutional ban on flag burning is seen as being more widely popular than the proposed amendment to ban same-sex marriages. A gay-marriage ban was defeated earlier this month and was seen as another attempt by the GOP to mobilize its conservative base before November.
In a CNN poll earlier this month, 56 percent of people surveyed said they supported the measure rejected Tuesday by the Senate, while 40 percent of respondents opposed it. The poll surveyed 1,031 adults and has a sampling error of 3 percentage points. (Poll)
The House passed the measure and sent it to the Senate, where the Senate Judiciary Committee, headed by Sen. Arlen Specter, R-Pennsylvania, approved the proposal, 11-7, earlier this month.
All 10 Republicans on the committee and one Democrat, Sen. Dianne Feinstein of California, supported it.
From the Senate floor Monday, Specter compared flag desecration to libel and child pornography, forms of expression he said have no "social value."
"Flag burning is a form of expression that is spiteful or vengeful," the five-term senator said. "It is designed to hurt. It is not designed to persuade."
But Sen. Patrick Leahy of Vermont sided with the 1989 Supreme Court decision, which voted 5-4 in Texas v. Johnson that flag burning was a political statement and that state laws banning it were unconstitutional.
The First Amendment was designed precisely to protect this sort of expression, Leahy said.
"The First Amendment never needs defending when it comes to popular speech," Leahy said. "It's when it comes to unpopular speech that it needs defending."
He called the efforts to pass the amendment "electioneering rallying cries."
The Texas v. Johnson case came to the court five years after Gregory Lee Johnson burned a flag at City Hall during a political demonstration at the 1984 Republican National Convention in Dallas.
Johnson was convicted of violating state law, sentenced to a year in prison and fined $2,000. The Supreme Court ruled his arrest was unconstitutional.
Writing for the majority, Justice William Brennan stated, "Johnson was not, we add, prosecuted for the expression of just any idea; he was prosecuted for his expression of dissatisfaction with the policies of this country, expression situated at the core of our First Amendment values."
Congress' attempt to overturn a Supreme Court decision by amending the Constitution is "extremely rare," said CNN legal analyst Jeffrey Toobin, but it's in line with how the American system of government was designed to work.
"The only way to overrule a Supreme Court precedent is by changing the Constitution," Toobin said. He added that legislators backing the flag-burning amendment are operating "exactly the way the framers of the Constitution intended when they want to change something for all time."
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