Re: Flag retiring
Patrick G Skelly (scoutldr@AOL.COM)
Tue, 26 Apr 1994 17:36:36 EDT
The issue of constitutionality has been raised by Russ Busdiecker. I will
speak only to that and to jurisdiction. Please excuse the length, but it is
all - except one opinion - needed to respond properly
Congress passed a poorly drafted replacement for the US Code dealing with
"Desecration of the flag of the United States; penalties", namely Title 18
USC Section 700. The enabling document was Public Law 101-131, "Flag
Protection Act of 1989", 103 Stat. 777. That act of Congress was unnecessary
in terms of the statutes (for an adequate predecessor had existed since 1968
- and probably earlier), but it was deemed politically expedient at that time
for Congressional 'strutting and crowing'.
On June 11, 1990, the Supreme Court affirmed that burning a flag in violation
of **that** section 700 was inconsistent with the First Amendment to the
Constitution, and that the section **"cannot constitutionally be applied"**.
This finding had the effect of nullifying section 700 - new as well as old -
until such time - if ever - as Congress acts to resolve First Amendment
issues. Section 700 remains 'on the books', but IT IS NO LONGER RELEVANT IN
OUR **FEDERAL** LEGAL SYSTEM.
(Note that we don't rule a law is 'unconstitutional' and must be thrown away,
only that it is inconsistent and hence cannot be applied.)
Title 36 USC Section 176, "Respect for flag", which I've previously quoted,
remains unaffected by the Supreme Court action. That section speaks of acts
which SHOULD be taken or avoided, matters of propriety rather than
Another posting suggested that the State of New York had prohibited flag
burning. I do not know about that. But, the following statement in both old
and new section 700 seems clear: "Nothing in the section shall be construed
as indicating an intent on the part of Congress to deprive any state,
territory, possession, or the Commonwealth of Puerto Rico of jurisdiction
over any offense over which it would have had jurisdiction in the absence of
The more important question in New York would, I think, be whether the state
has distinguished between reasonable disposal of worn or soiled flags vs.
contempt and desecration.
- Pat Skelly
Scouter and Vexillologist
Terry Howerton Sakima Group, Inc. SCOUTER Magazine Kansas City