The constitutional amendment to ban flag-burning has once again failed in the Senate, this time by only one vote. The vote was 66-34 (it needed 2/3 to pass).
This raises the question: are the amendment's supporters stupid or insincere? Weighing in on the side of insincere is Robert Bluey of Human Events. He argues that the amendment would have passed if the GOP really wanted it to. They could have whipped the members and found one more vote for it. What he doesn't mention is that one of the three Republicans who voted against the proposed amendment is Mitch McConnell, the Senate Majority Whip. Another was Bob Bennett, his deputy.
I support banning flag-burning, but I oppose this amendment. First of all, this isn't exactly the most important issue in the world. It isn't worth amending the Constitution. But beyond that, a constitutional amendment is absolutely the wrong strategy.
The whole reason that this amendment was proposed at all is that about fifteen years ago, the Supreme Court ruled (5-4) that flag-burning is "speech" which is protected by the First Amendment. The flag-burning amendment is case-in-point that trying to amend the Constitution in response to every bad Supreme Court decision is a terrible strategy. Yet no matter how many times it doesn't work, conservatives never seem to learn.
The right answer is to strip jurisdiction from the courts over this issue. This is the proper response to abuse of judicial power, and it has the added benefit of being easier to pass. (It needs only 50 votes, or 60 with a filibuster.) If conservatives had tried this, flag-burning would have been banned years ago.
Another problem with the amendment is that it would give Congress the power to ban flag-burning, but the issue should be decided at the local, not federal level.
The problem is the courts, not the Constitution.