House approves ban on flag burning

There have been 11,000 attempts in Congress to amend the Constitution, and 27 have won ratification.

WASHINGTON -- Supporters of a constitutional amendment to ban flag burning hoped a bigger Republican majority in Congress and wartime patriotism would give the proposal the best chance in years to advance to the states for ratification.

"The American people want this," said Sen. Orrin Hatch, R-Utah, sponsor of the amendment in the Senate. "I believe this is the year that the Senate will join the House to send it to the states for ratification."

But an informal survey Wednesday by The Associated Press suggested the amendment's prospects in the Senate are no brighter than in the past, unless there is a switch in position by one or more senators.

The tally found 35 senators on record as opposing the amendment -- one more than the number needed to defeat it if all 100 senators vote, barring a change in position. Late Wednesday, Sen. Hillary Rodham Clinton, D-N.Y., came out against the amendment.

"I don't believe a constitutional amendment is the answer," Clinton, a possible presidential candidate in 2008, said in a statement.

Sen. Ken Salazar, D-Colo., is undecided, a spokesman said.

House debate, which ended with an unsurprising 286-130 vote in favor of the amendment, fell along familiar lines over whether the amendment strengthened the Constitution or ran afoul of its free-speech protections.

Supporters said there was more public backing than ever because of emotions following the attacks of Sept. 11, 2001. Proponents said detractors were out of touch with public sentiment.

"Ask the men and women who stood on top of the Trade Center," said Rep. Randy "Duke" Cunningham, R-Calif. "Ask them and they will tell you: Pass this amendment."

Free speech issue

Critics said supporters of the amendment were exploiting the attacks to trample the right to free speech.

"If the flag needs protection at all, it needs protection from members of Congress who value the symbol more than the freedoms that the flag represents." said Rep. Jerrold Nadler, D-N.Y. His district includes the site of the former World Trade Center.

Since 1789, there have been more than 11,000 attempts in Congress to amend the Constitution; only 27 amendments have won ratification. The last, in 1992, prevents Congress from passing a law giving itself a pay raise before the next election. The 26th Amendment, in 1971, extended the right to vote to citizens as young as 18.

One of the most recent amendments that received congressional approval but failed to gain ratification by states was the Equal Rights Amendment. It would have set into law equality between men and women. The period for states to ratify it expired in 1982.

As in the House, the amendment needs a two-thirds majority of those voting for the Senate to pass the amendment and send it to the states for ratification. The measure would have to pass in 38 states, within seven years, to be added to the Constitution.

In the 100-member Senate, 34 votes are needed to kill a constitutional amendment. The last time the Senate voted on the amendment the tally was 63 in favor and 37 against, four votes short of the two-thirds majority needed.

Now, with more than two dozen new members, a four-seat Republican gain in the last election and a public still stung by the terrorist attacks in 2001, activists on both sides still harbor hope that the Senate could be within a vote or two of passage.

But the amendment's prospects faded late Wednesday when Democratic Sens. Maria Cantwell of Washington and Mark Pryor of Arkansas said they would oppose it.

Possible presidential contenders who have supported the amendment in the past include Sens. Evan Bayh, D-Ind., Majority Leader Bill Frist, R-Tenn., Chuck Hagel, R-Neb., and John McCain, R-Ariz.

Sen. Joseph Biden, D-Del., a likely presidential candidate, has said he would oppose the amendment.

The proposed one-line amendment to the Constitution reads, "The Congress shall have power to prohibit the physical desecration of the flag of the United States."

The amendment is designed to overturn a 5-4 Supreme Court ruling in 1989 that flag burning is a protected free-speech right.

That ruling threw out a 1968 federal statute as well as flag-protection laws in 48 states. The law was a response to anti-Vietnam War protesters setting fire to American flags at demonstrations.

The Senate could consider the measure as soon as next month.