The Flag-Burning Controversy of 1989-1990: Congress' Valid Role in Constitutional Dialogue

42 Pages Posted: 26 Mar 2009

See all articles by Charles Tiefer

Charles Tiefer

University of Baltimore - School of Law

Date Written: Summer 1992


In this article, the author analyzes the debate surrounding Texas v. Johnson, a Supreme Court case that ruled unconstitutional a Texas flag desecration statute. In his analysis of the development of the issue, the author demonstrates how the Legislative Branch, more so than the Judicial Branch, influenced the shaping and understanding of the application of constitutional law. Through his analysis, Congress' importance in the democratic process emerges. Drawing upon his personal experiences as a member of counsel who represented Congress in the defense of the Flag Protection Act, the author examines how the congressional process serves a vehicle for public participation in important constitutional debates.

Responding to criticism of the Supreme Court's Texas decision, the author argues that the Legislature, with its broad agenda-setting powers, offered the most appropriate venue for dealing with and resolving constitutional issues. Further, the author uses the flag controversy case to illustrate the superiority of Congress' agenda-setting system as compared to Supreme Court's. He argues that Congress' procedures did far more to protect the constitutional government than did those of the Court. In so doing, the legislative solution played an important role in preserving constitutionalism - one that must not be minimized in future debates.

Keywords: Texas v. Johnson, flag burning, flag desecration, flag debate, constitutional law, Flag Protection Act, democratic process, separation of powers, checks and balances, United States v. Eichman, sovereignty defense, agenda-setting powers, United States v. O'Brien, draft card burning, symbolic speech

JEL Classification: K19, K39, K49, H19, H89

Suggested Citation

Tiefer, Charles, The Flag-Burning Controversy of 1989-1990: Congress' Valid Role in Constitutional Dialogue (Summer 1992). Harvard Journal on Legislation, Vol. 29, No. 2, 1992, Available at SSRN:

Charles Tiefer (Contact Author)

University of Baltimore - School of Law ( email )

1420 N. Charles Street
Baltimore, MD 21201
United States

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