John Cornyn: “To be sure, from the founding, of our Nation until 1989, the power to protect the flag was not in doubt. In Smith v.…”

“To be sure, from the founding, of our Nation until 1989, the power to protect the flag was not in doubt. In Smith v. Goguen, 1974, the U.S. Supreme Court held, in a decision authored by Justice Lewis Powell, that ``nothing prevents a legislature from defining with substantial specificity what constitutes forbidden treatment of United States flags.'' Justice Byron White stated in that same case that ``[i]t would be foolishness to suggest that the men who wrote the Constitution thought they were violating it when they specified a flag for the new Nation. . . . There would seem to be little question about the power of Congress to forbid the mutilation of the Lincoln Memorial. . . . The Flag is itself a monument, subject to similar protection.'' In Street v. New York, 1969, Chief Justice Earl Warren wrote that ``the States and Federal Government do have the power to protect the flag from acts of desecration and disgrace.'' Justice Hugo Black wrote in that same case that ``[i]t passes my belief that anything in the Federal Constitution bars a State from making the deliberate burning of the American Flag an offense.'' And Justice Abe Fortas noted that ``the States and the Federal Government have the power to protect the flag from acts of desecration committed in public.'' More recently, Chief Justice William Rehnquist, Justice John Paul Stevens, and Justice Sandra Day O'Connor have all expressed their belief that nothing in the first amendment prohibits protection of the flag.”