Deference or Dissent? Congress Responds to U.S. v. Eichman

Since Marbury v. Madison (1803) 1 , the role of the Supreme Court as the final arbiter of the meaning of the U.S. Constitution has been largely accepted by both mass and elite publics. However, on occasion those interpretations have been the subject of heated dispute, often with the states, the executive, or the legislative branch. The Court's 5–4 decision in Texas v. Johnson (1989) 2 raised such a dispute with all three of these parts of government, when it found state and federal laws forbidding the dese-cration of the U.S. flag to be unconstitutional infringements on the right of free speech embodied in the First Amendment. Congress first enacted a new law that might pass constitutional muster, the Flag Protection Act of 1989 3 ; however, this law was also found to be unconstitutional by the Court, again by a 5–4 margin, in U.S. v. Eichman (1990) 4. Congress then proposed a constitutional amendment to give the states and Congress the power to enact such a law; while the proposed amendment 5 attracted majority support in both chambers, in neither did it attain the two-thirds majority required to send the amendment to the states for ratification. Congress' voting on the Flag Protection Amendment has been examined at least once before. Clark and McGuire (1996) found that ideological and constituent preferences , rather than institutional conflict, shaped the vote in the House of Representatives on the amendment. This paper differs from theirs in several important respects. First, this paper seeks to explain why members who supported the Flag Protection Act would subsequently oppose the proposed amendment. Clark and McGuire analyze the vote 1 5 U. 1 on the amendment exclusively, not taking into account the obvious changes in position that must have occurred in many members. Secondly, this paper incorporates the Sen-ate's voting, as well as that of the House of Representatives, to get better leverage on the question of the electoral connection: members up for reelection just months after the amendment vote may have behaved differently than those who were not accountable until 1994, by which time the issue may have declined in salience. Finally, this paper uses Poole and Rosenthal's W-NOMINATE scores for members of Congress, rather than the ADA scores used by Clark and McGuire. Nonetheless, this paper similarly finds that ideology played an important role in the decision, although partisanship, the competitiveness of the member's last …