ET: What Would You Decide?
DIRECTIONS: On a clean sheet of paper, place a heading in the upperright corner. Read the brief case synopsis and then answer the question
that follows.
Case Name:
Texas v. Gregory Lee Johnson, 491 U.S. 397 (1989) Rehnquist
Categories:
criminal, First Amendment, flag desecration, freedom of
speech, protest demonstrations
Facts of the Case:
In 1984, in front of the Dallas City Hall, Gregory Lee
Johnson burned an American flag as a means of protest against Reagan
administration policies. Johnson was tried and convicted under a Texas law
outlawing flag desecration.
Question: Is the desecration of an American flag, by burning or otherwise, a
form of speech that is protected under the First Amendment?
•
Decision Date: June 21, 1989
•
Background: The 1984 Republican National Convention
was held in Dallas, Texas. During the convention Gregory
Lee Johnson and a group of political activists marched
through the streets protesting. When the demonstrators
reached Dallas City Hall, Johnson poured kerosene on an
American flag and burned it. Johnson was arrested and
convicted under a Texas state law. In an appeal, Johnson
argued that burning the American flag was symbolic
speech and protected by the First Amendment. The Texas
appeals court agreed and overturned his conviction.
Unsatisfied with the decision, the state of Texas, appealed
the ruling to the United States Supreme Court.
ET: The Court’s Finding
In a 5-to-4 decision, the Court held that
Johnson’s burning of a flag was protected
expression under the First Amendment. The
Court found that Johnson’s action fell into the
category of expressive conduct and had a
distinctively political nature. The fact that an
audience takes offense to certain ideas or
expression, the Court found, does not justify as
prohibitions of speech.
II. Formal Amendments
A.
Process - There are four methods to formally amend (changing the written
language) the Constitution. Each method ensures that the National Government
and State Governments are in agreement to the need of formally amending the
Constitution (an example of federalism).
An amendment cannot be
accomplished without joint majority approval.
1.
Proposed by 2/3 vote in each house of Congress and ratified by ¾ of the
State Legislatures (38 states)… 26 Amendments were adopted this way.
2.
Proposed by 2/3 in each house of Congress and ratified by ¾ of the State
Conventions (popularly elected delegates)… Only the 21st Amendment was
adopted this way.
3.
Proposed by a National Convention requested by 2/3 of the State
Legislatures (34) and ratified by ¾ of the State Legislatures.
4.
Proposed by a National Convention requested by 2/3 of the State
Legislatures (34) and ratified by ¾ of the State Conventions (popularly
elected delegates).
II. Formal Amendments
B. There are 27 Amendments to the Constitution.
1. The first 10 Amendments are called the Bill of Rights because
they set out the great constitutional guarantees of freedoms for
the American people. NOTE: These were ratified after the
Constitution.
2. The Civil War Amendments (13th, 14th, and 15th) combined to
end slavery, define American citizenship, proclaim the rights of
due process and equal protection of the law, and outlaw
restitutions on the right to vote based on race, color, or
previous condition of servitude.
3. Other amendments further define the workings of government,
empower the government in certain ways, or deal with
important social issues.
III. Informal Amendments
The process by which most changes have been made in the Constitution
that have not led to changes in the document’s written words.
1. Basic Legislation - Congress spelling out brief provisions or further
defining and interpreting the meaning of the Constitution.
a) For example, Article II creates only the offices of the President
and Vice President. The many departments, agencies, and
offices in the huge executive branch have been created by acts
of Congress
b) For example, the Constitution gives Congress the expressed
power to regulate “foreign and interstate commerce.” But, the
constitution does not define what foreign commerce or interstate
commerce is. By passing thousands of statutes, however,
Congress has done much to define the meaning of these words.
III. Informal Amendments
2. Executive Action - Presidents have used their powers to
delineate unclear constitutional provisions, for example,
making a difference between Congress’s power to declare
war and the President’s power to wage war.
3. Court Decisions
a) The nation’s courts interpret and apply the Constitution
as they see fit, as in Marbury v. Madison.
b) The Supreme Court has been called “a constitutional
convention in continuous session.”
III. Informal Amendments
4. Party Practices
a. Political conventions
b. Nominating candidates for presidency
c. Organizing Congress along party lines, and
d. Injecting party policies in the process of
presidential appointments.
III. Informal Amendments
5. Custom - Each branch of government has developed
traditions that fall outside the provisions of the Constitution.
a) An example is the executive advisory body known as the
President’s cabinet.
b) Another example is the “no-third-term tradition” which was
a closely followed rule beginning in 1796 with George
Washington. However, it was broken in 1940 and again in
1944 by Franklin Roosevelt who ran for a third and then a
fourth term. As a result, the 22nd Amendment was added
to the Constitution in 1951 making the informal
amendment a formal one.
HOMEWORK
• Complete the Constitution
Study Guide
• Study for your Constitution
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