President Donald Trump’s executive order to criminalize burning the American flag isn’t the first Republican effort to ban the provocative protest. In fact, the party came within a single vote of getting a constitutional amendment prohibiting desecration of the flag through Congress two decades ago.
The obstacle, then as now, is a 1989 Supreme Court decision that flag burning is a form of protected speech. Trump, just after signing his Aug. 25 executive order requiring the Justice Department to investigate and prosecute people for burning the American flag, argued he could find a way around that landmark precedent by seeking prosecutions in cases in which burning the U.S. flag “is likely to incite imminent lawless action.”
By contrast, Republicans in the past have addressed this issue through a constitutional amendment, making several attempts in the 1990s and 2000s. And they would have almost surely been successful had it not been for the opposition of Sen. Mitch McConnell (R-KY), the future Senate GOP leader, who changed his position from supporting the amendment in 1990 to opposing it in 2006.
Following the Supreme Court’s 5-4 ruling in Texas v. Johnson, President George H.W. Bush told reporters in 1989 that while protecting political protest was important, “I believe that the flag of the United States should never be the object of desecration. Flag-burning is wrong. Protection of the flag, a unique national symbol, will in no way limit the opportunity nor the breadth of protest available in the exercise of free speech rights.”
“I believe the importance of this issue compels me to call for a constitutional amendment,” he added.
In June 1990, the House came up 34 votes shy of the two-thirds needed in a 254-177 vote in favor.
“We should not amend the Constitution to reach the sparse and scattered and despicable conduct of a few who would dishonor the flag and defile it,” said House Speaker Tom Foley (D-WA), who held the chamber’s top job during the final five-and-a-half years of Democrats’ 1955-1995 majority.
The following week, the Senate, also then under Democratic control, came up nine votes short of the necessary two-thirds for the constitutional amendment, even though it easily won a majority, 58-42. McConnell, finishing up his first six-year Senate term, voted in favor of the amendment — one of 38 Republicans and 20 Democrats to back it.
Changing his tune
But within a few years, McConnell had a change of heart. With Republicans having won House and Senate majorities and pushing a new flag-burning amendment, in a 1995 Washington Post op-ed, he explained why.
“Those who burn the flag deserve our contempt, but they should not provoke us to tamper with the First Amendment,” he wrote. “After all, among the values the American flag symbolizes is free speech, even those ideas with which we disagree. While we revere the flag for the values and history it represents, we cannot worship the flag as an end unto itself. And we cannot coerce people to respect the flag in the manner in which we know it deserves to be respected. To do so would be tantamount to imposing a ‘speech code’ and our own conservative brand of political correctness. We freely criticize liberals for their litmus tests; let us be wary of adopting our own.”
In 2000, after voting against a flag-burning amendment, McConnell urged his colleagues to “curb this reflexive practice of attempting to cure each and every political and social ill of our nation by tampering with the Constitution. The Constitution of this country was not a rough draft.” He instead proposed a bill that would have made flag burning a statutory crime, but it failed 64-36.
After Republicans gained four Senate seats in the 2004 elections, amendment proponents had their best shot. Among the new GOP lawmakers in the chamber was Sen. John Thune (R-SD), who had championed the amendment during his 2004 campaign, when he beat the sitting Senate Democratic leader for reelection, the first time that had happened since 1950. “Out in the country, at the grassroots level, it’s seen as a common man’s practical patriotism,” said Thune, who is now the Senate majority leader.
By then, the GOP-controlled House was firmly behind it; in 2005, the chamber passed the amendment by a 286-130 margin, with 77 Democrats in favor. The next year, the Senate came within one vote of passage, 66-34. Fourteen Democrats voted for the measure, but McConnell and two other Republicans, Bob Bennett of Utah and Lincoln Chafee of Rhode Island, voted no, essentially sinking the effort. Only McConnell remains in the Senate from that trio.
“Old Glory lost,” Senate Majority Leader Bill Frist (R-TN) said after the vote.
President George W. Bush, a son of George H.W. Bush, said he was disappointed in the tally.
“I commend the senators from both parties who voted to allow the amendment ratification process to protect our flag to go forward, and continue to believe that the American people deserve the opportunity to express their views on this important issue,” he said.
It was an especially striking vote by McConnell to go against the overwhelming majority of his party, as he was in line to become Senate Republican leader the next year, replacing Frist, who was retiring. The party he was about to lead savaged a senator from a neighboring state, West Virginia Democrat Robert Byrd, for voting against the amendment. Like McConnell, Byrd voted for it in 1990.
“By siding with the far left and casting the deciding vote against prohibiting the desecration of our flag, Sen. Byrd has again positioned himself way outside of West Virginia’s mainstream values,” a National Republican Senatorial Committee spokesman said at the time, making no mention of McConnell teaming up with the “far left” to defeat the amendment.
That amendment might very well be part of the Constitution today were it not for the votes of McConnell, Bennett, and Chafee. They prevented the proposal from being sent to the states, where support in three-quarters of the total would have enacted it.
As the New York Times explained at the time, “Had the Senate passed the amendment, it would have been likely to win ratification from the required 38 states since, supporters say, all states have endorsed the amendment in some form.”
In his 2024 book, The Price of Power: How Mitch McConnell Mastered the Senate, Changed America, and Lost His Party, Michael Tackett described McConnell’s vote as an outlier.
“McConnell rarely goes it alone, but he essentially did with his opposition to an amendment to prohibit flag burning, a case where he was willing to risk his chance to move up in the Republican Senate leadership by standing for what he thought was a matter of principle,” Tackett wrote.
What prompted the change? In an email, Tackett observed that over time, McConnell came to see himself as a “near absolutist” on free speech.
Out of sync with party
When asked for his position on Trump’s executive order, McConnell’s office referred to a recent interview he gave to the Louisville Courier-Journal, in which he said that prosecuting people for burning the flag would be “impossible to enforce.”
“The appropriate way to destroy a worn-out flag is to burn it,” McConnell said. “So, you’d have courts all clogged up with what’s constitutional and what isn’t.”
McConnell is no fan of Trump, now in his second, nonconsecutive term, and vice versa, and this is just one more example of how he parts company with the MAGA-dominated party.
In 2006, when McConnell, then the Senate majority whip, cast his vote against the constitutional amendment, he was about to embark on what became the longest-tenured run as a Senate party leader, with six years in the majority (2015-21) and a cumulative 12 years heading the GOP opposition as minority leader (2007-15 and 2021-25).
Today, however, McConnell, 83, is out of leadership, out of step with his party, and on his way out the door, having decided not to seek reelection next year. Unlike his isolated vote in 2006, the schism runs much deeper now. For example, McConnell opposed several of Trump’s Cabinet selections, prompting his one-time protégé, former Kentucky Attorney General Daniel Cameron, who is running to succeed him, to scold McConnell in a campaign video earlier this year.
“Now what we saw from Mitch McConnell in voting against Pete Hegseth, Tulsi Gabbard, and RFK was just flat out wrong,” Cameron said. “You should expect a senator from Kentucky to vote for those nominees to advance the ‘America First’ agenda.”
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The rebuke from Cameron, who used to work for McConnell and, in 2019, said the senator “changed the trajectory of my life,” is another sign of how the political center of gravity has moved away from McConnell and toward Trump. In fact, the three top Republicans in the primary to succeed McConnell — Cameron, Rep. Andy Barr (R-KY), and businessman Nate Morris — all once interned for him and are racing as far away as possible.
Trump’s son, Donald Trump Jr., made it clear that doing so was the price of admission for getting his backing. Reposting on X an anti-McConnell post from Morris, Trump Jr. wrote, “If you’re running for office, especially in Kentucky, and you want my support, don’t even bother reaching out to me unless you’re willing to publicly oppose Mitch McConnell like this.”
Frederic J. Frommer, a writer and sports and politics historian, has written for the Washington Post, the New York Times, the Atlantic, History.com, and other national publications. He is the author of several books, including You Gotta Have Heart: Washington Baseball from Walter Johnson to the 2019 World Series Champion Nationals.