(U-WIRE) MORGANTOWN, W.Va. – Concerns over free speech took precedence last week when the Senate rejected a proposed amendment to the Constitution that would allow lawmakers to ban flag desecration by a single vote.

The legislation, primarily sponsored by Orin Hatch (R-Utah), would have marked the first changes to the Constitution since the 27th Amendment was ratified in 1992. This amendment prohibited pay increases for elected officials to go into effect until after an election.

A two-thirds majority is required for passage of an amendment which must then be ratified by two-thirds of the state’s legislatures.

“Over the course of a few cases, the Supreme Court has decided that statutes designed to prevent flag desecration are unconstitutional, and the reason for this is our First Amendment tradition of free speech,” said John Taylor, an associate professor at the West Virginia University Law Center.

“Congress has seemed to accept for the time being that they do not have the statutory authority to outlaw flag burning, so the only way to accomplish this is through an amendment to the Constitution,” Taylor said.

This was the second failed amendment proposed by Republicans in the month of June along with the Federal Marriage Amendment baring same-sex marriage.

According to Taylor, these amendments represent attempts by Congress to bypass judges’ rulings on single hot button issues.

“It seems to be characteristic of the present Congress to have a tendency toward being less respectful of the independent judiciary in our system,” Taylor said.

“There have been amendments on gay marriage, on flag burning and there have been amendments proposed on the Pledge of Allegiance. All of these efforts are our Congress’ way of saying they are not satisfied with the idea that the judiciary is the branch that gets to make the final call on these matters, and we are going to assert our own point of view and try to make that law,” Taylor said.

The vote was cast primarily down party lines with 14 democrats, including West Virginia’s Senator John Rockefeller, breaking party lines to vote for the amendment, and only three republicans voting against it.

Notable opponents to the legislation included Robert Byrd, D-W.Va., and possible 2008 presidential candidates Hillary Clinton, D-N.Y., Joe Biden, D-Del., and John Kerry, D-Mass.

“This is something which is really not a problem. Flag burnings and flag desecrations are really rare acts. This is not a form of expression that is exercised with any frequency,” said Robert Bastress, a WVU law professor and constitutional expert who has been honored by West Virginia’s American Civil Liberties Union for his advocacy of free speech and human rights issues.

“To say that this is Congress making a mountain out of a molehill is an understatement, it is Congress trying to make an amendment to the constitution to solve a problem that does not exist” Bastress said. According a speech given by Senator Kerry about this issue, there have only been two documented cases of flag desecration at protests in the United States this year.

Bastress speculated that this might be an issue brought forth for political gain.

“It is not coincidental that the last time that they did this was the year 2000, when there was another important election,” Bastress said.

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