Editing Flag Desecration Amendment (section)

==Historical background==
The first federal [[Flag Protection Act]] was passed by Congress in 1968 in response to protest burnings of the flag at demonstrations against the [[Vietnam War]].<ref>[http://www.fas.org/sgp/crs/misc/95-709.pdf Flag Protection: A Brief History and Summary of Recent Supreme Court Decisions and Proposed Constitutional Amendment].</ref> Over time, 48 of the 50 U.S. states also enacted similar flag protection laws. In 1989, the [[Supreme Court of the United States]] overturned all of these statutes by a 5–4 vote in the case ''[[Texas v. Johnson]]'' as unconstitutional restrictions of public expression.<ref>{{ussc|name=Texas v. Johnson|volume=491|page=397|pin=|year=1989}}.</ref> Congress responded to the ''Johnson'' decision afterwards by passing another flag protection act. In 1990, the Supreme Court reaffirmed ''Johnson'' by the same 5–4 majority in ''[[United States v. Eichman]]'' declaring that flag burning was constitutionally protected free speech.<ref>{{ussc|name=United States v. Eichman|volume=496|page=310|pin=|year=1990}}.</ref>

In both cases, [[William J. Brennan Jr.]] wrote the majority opinion, joined by [[Thurgood Marshall]], [[Harry Blackmun]], [[Antonin Scalia]], and [[Anthony Kennedy]] (Kennedy also authored a separate concurrence in ''Johnson''), and the dissenters in both cases were then-Chief Justice [[William Rehnquist]] (who authored a dissent in ''Johnson''), and justices [[John Paul Stevens]] (who authored dissents in both cases), [[Byron White]] and [[Sandra Day O'Connor]].

The decisions were controversial and have prompted Congress to consider the only remaining legal avenue to enact flag protection statutes—a constitutional amendment. Following the ''Johnson'' decision, successive sessions of Congress considered creating a flag desecration amendment. From 1995 to 2005, beginning with the [[104th United States Congress|104th Congress]], the proposed amendment was approved biennially by the two-thirds majority necessary in the U.S. House of Representatives, but it consistently failed to achieve the same constitutionally required super-majority vote in the U.S. Senate. During some sessions, the proposed amendment did not even come to a vote in the Senate before the expiration of the Congress' term. In June 2006 during the [[109th United States Congress|109th Congress]], the amendment failed by one vote in the Senate.<ref name=senatevote2006>[https://www.senate.gov/legislative/LIS/roll_call_votes/vote1092/vote_109_2_00189.htm 109th Congress: Senate vote on proposed flag amendment, June 27, 2006].</ref> Some Senate Republican aides indicated that almost a dozen of the Republican senators who voted for the amendment were privately opposed to it, and they believed that these senators would have voted to defeat the amendment if required.<ref>{{cite magazine|last=Calabresi|first=Massimo|date=27 June 2006|title=Why the Flag-burning Ban Failed|magazine=[[Time (magazine)|Time]]|url=http://www.time.com/time/nation/article/0,8599,1208509,00.html|url-status=dead|archive-url=https://web.archive.org/web/20120304142438/http://www.time.com/time/nation/article/0,8599,1208509,00.html|archive-date=March 4, 2012}}</ref>