MADELEINE BRAND, host:
It's been nearly 30 years since Congress approved a new amendment to the U.S. Constitution, but it could happen again this week. The Senate is on the verge of approving an amendment that would ban flag burning. Joining us to discuss this is NPR's Senior Washington Editor, Ron Elving. Ron, flag burning - this has been a perennial, hasn't it, in Washington?
RON ELVING reporting:
Yes, Madeleine, back to the Vietnam era, when there actually was a whole lot of flag burning going on, Congress has tried several times to pass a ban on flag desecration, but the courts kept knocking down anything they passed as unconstitutional. There was a famous Supreme Court case in 1990 when Chief -not Chief Justice, but Associate Justice William Brennan wrote that the flag was a symbol of our freedoms, but the First Amendment to the Constitution was the essence of our freedoms. And so, starting about 15 years ago, the Congress has been trying to amend the Constitution to allow such a ban to be passed.
BRAND: And this particular version of the amendment language, I understand it's already been approved in the House?
ELVING: Yes, the House has approved it, most recently just last year by a vote of 286 to 130, which is better than two-thirds.
BRAND: And it still needs two-thirds in the Senate. Can it get two-thirds in the Senate?
ELVING: They are awfully close, Madeleine. They may be just one vote away at this point. In 2000, they had a vote. They were four votes shy at that time. But nearly a third of the Senate has turned over since then, so we've got a lot of new faces. And the measure's chief sponsor, Orrin Hatch, Republican from Utah, says he has about 66 votes. That would put him one shy. And the ACLU, which is leading much of the opposition, says it can't argue with that count.
BRAND: And is this a straight party-line vote?
ELVING: Most of the Democrats are against it, and nearly all the Republicans are for it. But there are some prominent Republicans, including Mitch McConnell of Kentucky, who is their number two leader, the Majority Whip, and will be probably the leader of the Republican Party in the Senate next year, is opposed. And on the other hand, there are some Democrats, including their leader, Harry Reid from Nevada, who are going to vote for the amendment.
BRAND: Hmm. Well, if they do get their vote that they need, the one vote, it would go to the states. And then three-fourths of the states would need to ratify it. And are there three-fourths that would ratify it?
ELVING: I think there will be. They have seven years to do it. On the other hand, the last time Congress sent them an amendment - that is, a brand new amendment, was back in 1978, granting full voting rights to the District of Columbia. And the states said no. And they also rejected the Equal Rights Amendment before that.
BRAND: Well, why is this coming up right now, this flag burning amendment?
ELVING: It's not really been all that hot an issue in recent years. Flag burning has been less in vogue, although it might come back into vogue, perhaps with this ban. It's been less shocking in recent years, and therefore, less mediagenic. So now with this federal ban, it might actually - there might be more shock value, actually, in going out and burning the flag.
But at the same time, it's been a perennial, as you said. It's been a goal for some activists who feel strongly that this constitutional First Amendment right should not be interpreted to protect this kind of behavior. So it's important to them on principle.
BRAND: And the political season is ramping up. I assume there are some political overtones to this, Ron?
ELVING: Of course. This is one issue among several being voted on in the Senate this month that are meant to highlight the differences between the Republicans and the Democrats. Another was a constitutional amendment to ban gay marriage. That failed earlier this month. Another is the estate tax, which the Senate is scheduled to take up tomorrow. And they have already had one vote trying to repeal it entirely. And that failed. So they're coming back, probably tomorrow, with a measure that would reduce the estate tax, if they can't repeal it.
BRAND: I'm wondering if you've looked at some key senators and their votes on this flag burning issue. One is a potential presidential candidate. I'm thinking of Hillary Clinton. Do you know where she is on this?
ELVING: We're going to be watching her vote very carefully. But I believe she will probably vote against it.
BRAND: Vote against it.
ELVING: But we'll be watching her vote very carefully.
BRAND: All right. Well, thank you very much. NPR's political editor, Ron Elving
ELVING: Thank you, Madeleine.
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