[Congressional Record Volume 152, Number 84 (Monday, June 26, 2006)]
[Senate]
[Pages S6471-S6487]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
FLAG DESECRATION AMENDMENT
The ACTING PRESIDENT pro tempore. Under the previous order, the hour
of 4 p.m. having arrived, the Senate will proceed to the immediate
consideration of S.J. Res. 12, which the clerk will report.
The legislative clerk read as follows:
A joint resolution (S.J. Res. 12) proposing an amendment to
the Constitution of the United States authorizing Congress to
prohibit the physical desecration of the flag of the United
States.
The Senate proceeded to consider the joint resolution which had been
reported from the Committee on the Judiciary, with an amendment, as
follows:
[Omit the part struck through and insert the part printed in italic.]
S.J. Res. 12
Resolved by the Senate and House of Representatives of the
United States of America in Congress assembled (two-thirds of
each House concurring therein), That the following article is
proposed as an amendment to the Constitution of the United
States, which shall be valid to all intents and purposes as
part of the Constitution when ratified by the legislatures of
three-fourths of the several States [within 7 years after the
date of its submission by the Congress] within seven years
after the date of its submission for ratification:
``Article __
``The Congress shall have power to prohibit the physical
desecration of the flag of the United States.''.
The ACTING PRESIDENT pro tempore. The Senator from Pennsylvania.
Mr. SPECTER. Mr. President, the Judiciary Committee, which I chair,
has reported to the floor an amendment to the Constitution of the
United States which would authorize legislation to prohibit burning of
the American flag.
The Supreme Court of the United States, in Texas v. Johnson in 1989
and again in United States v. Eichman in 1990, in a 5-to-4 decision
ruled that the first amendment to the U.S. Constitution relating to
freedom of speech would be violated by legislation which prohibited
flag burning.
At the outset of the debate on this amendment, it is vital to note
that the pending amendment does not seek to alter the language of the
first amendment. The first amendment of the U.S. Constitution
protecting speech, religion, press, and assembly is inviolate, really
sacrosanct. But that is not to say the decisions of the Supreme Court
of the United States have that same status.
We have, since the adoption of the U.S. Constitution in 1787 and the
Bill of Rights, the 10 amendments, in 1791, held freedom of speech as
one of our highest values, along with freedom of religion, freedom of
the press, the right to assemble, and the right to petition the
Government. But decisions by the Supreme Court of the United States
are, in a sense, transitory. They have the final word, and we respect
their judgment, but our constitutional process allows for amendments in
a complicated way. It has to pass both Houses of the Congress by two-
thirds vote and then be ratified by three-fourths of the States. So it
is a high bar to change what the Supreme Court of the United States
says the Constitution means.
The five Justices who found the first amendment violated are Justice
Brennan, Justice Marshall, Justice Blackmun, Justice Scalia, and
Justice Kennedy. The four Justices in dissent were Chief Justice
Rehnquist, Justice White, Justice O'Connor, and Justice Stevens. So had
the Court been slightly differently constituted, we wouldn't be talking
about a constitutional amendment.
It is important to focus on the basic fact that the text of the first
amendment, the text of the Constitution, the text of the Bill of
Rights, is not involved. It is the decision by the Supreme Court, it is
the decision where any one of five made a majority. It is that
difference of opinion that is at issue, and it is important to note
that when decisions are rendered by the Supreme Court of the United
States, they are the ``opinion'' of the Court. There is no verity,
there is no absolutism, unlike what might be contended for the
Constitution itself, especially the first amendment.
It is important to note that there have been many decisions by the
Supreme Court of the United States which have limited freedom of speech
under the first amendment. The first case which comes to mind is the
famous opinion by Justice Oliver Wendell Holmes saying that an
individual could not cry ``fire'' in a crowded theater. People have a
right to speak, but there are limitations as to how people may exercise
freedom of speech, and that is one limitation.
A Supreme Court decision in Chaplinsky v. New Hampshire in 1942 had
special significance when the Court decided that fighting words were
not protected by the constitutional protection of freedom of speech.
The defendant in a criminal case had used condemnatory curse words, a
fight resulted, and he was convicted. The Court said freedom of speech
did not go that far and upheld his conviction.
The Court observed in that case a standard which is significant, and
that is:
It has been well observed that such utterances are no
essential part of any exposition of ideas, and are of such
slight social value as a step to truth that any benefit that
may be derived from them is clearly outweighed by the social
interest in order and morality.
I believe that standard applies to flag burning.
We have had other instances where the Supreme Court of the United
States has limited freedom of speech. For example, on inciting unlawful
conduct, you can say what you please, but you cannot incite others to
unlawful conduct and then defend on the ground of freedom of speech.
Obscenity cases are another line of decisions, complex decisions,
conduct which is gauged by contemporary community standards and the
question of whether the speech has its dominant appeal to prurient
interests. It is pretty hard to define what that means. That was a
definition I wrestled with consistently when I was assistant attorney
of Philadelphia to make a determination as to where freedom of
expression and freedom of speech crossed the line.
On pornography, which is a lesser standard, you don't have to go to
the level of obscenity on pornography if children are involved. There
again, the first amendment protection for freedom of speech does not
cover it.
An individual in our society does not have the constitutional right
to make false statements of fact, but that individual may be taken to a
court of law, sued, and damages collected for slander, verbal false
statements of fact, or libel, written false statements of fact.
Similarly, the first amendment does not protect speech which
constitutes threats of violence. And just last month in a widely noted
case, the Supreme Court decided that governmental employees have limits
on what their speech can contain.
The Chaplinsky decision, which I cited a few moments ago, sets a
standard which, as a generalization, notes that there will not be
protection for utterances which are no essential part of any exposition
of ideas and therefore are of slight social value.
It is my opinion--and again, I denominate it as an opinion, just as
the Supreme Court of the United States denominates its decisions as
opinions. We all have our own opinions. We are all entitled to our own
opinions. If there are enough opinions to the contrary of the five
Supreme Court Justices--that is, the opinions of two-thirds of the
Senate and two-thirds of the House of Representatives and three-fourths
of the legislatures of the States--then we may make a modification of
what the Supreme Court has said in declaring that flag burning is
protected by freedom of speech.
It is my sense that under the Supreme Court decision in Chaplinsky,
we are dealing with conduct which is not an essential part of an
exposition of ideas and does not have social value as a step to the
truth, and that whatever is derived from it is clearly outweighed by
the social interest in order and tranquility. It is my view that flag
burning is a form of expression which is spiteful or vengeful or
designed to antagonize, designed to hurt. It is not designed to
persuade.
Again referring to the opinion of perhaps America's greatest Jurist,
Oliver
[[Page S6472]]
Wendell Holmes, on the Supreme Court in the case Abrams v. United
States, decided in 1919, Justice Holmes noted that time has upset many
fighting faiths. Time has upset many fighting faiths, and ideas and
concepts and doctrines which men and women think are veritable truths
may turn out not to be so. That opinion which I studied in law school a
few years ago made the deepest impression on me of any which I have
ever read. I think that is really the hallmark of freedom of speech,
and that is in the context of seeking to persuade the marketplace of
ideas. When Holmes said that time has upset many fighting faiths, he
was extraordinarily prescient in that declaration.
In evaluating the speech issue and in evaluating what I believe is an
appropriate resolution of the pending constitutional amendment, I think
of the veterans in our society and I think of the veterans' expectation
of the sanctity of the flag. I think of the flag as a symbol of what
veterans fought for, what they sustained wounds for, what they
sustained loss of limbs for, and what they sustained loss of life for.
In being the chairman of the Senate Veterans' Affairs Committee for
some 6 years and a ranking member a number of years beyond, I had more
duties than most would on veterans' issues. The veterans, with some
substantial justification, repeatedly made the point at our hearings
that they were not treated right for the sacrifices they had made; that
when it came to compensation and disability, the Nation which has
called upon them to fight wars and sustain wounds and sustain loss of
limbs, comrades who have given their lives, the Nation was not very
appreciative or grateful or didn't reciprocate with the kinds of
benefits to which the veterans thought and think they are entitled to.
It is a continuing battle, given the budget limitations.
The Congress of the United States is very much concerned about
veterans' rights and veterans' benefits, and we make an effort, but in
so many cases, it has been my judgment, reflected in my views and my
votes and my chairmanship of the Veterans' Affairs Committee, that we
are not sufficiently considerate, and not a matter of being generous
but not sufficiently just with our veterans.
When it comes to the issue of flag burning, I have heard many
veterans express deep concern about disrespect for the American flag,
which they equate as disrespect for them, disrespect for the sacrifices
they and their buddies have made.
I think of my brother's service in the U.S. Navy, and I think of
Morton Specter, who served in the U.S. Navy in World War II. I think of
the service of my brother-in-law, Arthur Morganstern, who served in the
South Pacific for 31 months and came home to find a 2-year-old baby
daughter from whom he had been separated for a protracted period of
time, and fortunately came home in time.
My own service stateside during the Korean war was something I was
proud to do. I did not face the rigors of combat, although when you are
in the service, you respond to what the service tells you to do.
I also think of the service of my father, Harry Specter, an
immigrant. It always makes me mindful of immigrants who have built this
country. My mother, too, was an immigrant. She came at the age of 6
with her family from the Ukraine. I have had some comments about their
contributions to this country in another context as we have talked
about immigration reform, which is now pending before the conference
committee of the House and Senate. My father came to this country at
the age of 18, in 1911. The czar wanted to send him to Russia, and he
wanted to go to Kansas.
As I say sometimes in jest, it was a close call, but he got to go to
Kansas. But he didn't know that when he sailed steerage from Europe to
the United States, he had a round-trip ticket to France--not to Paris
and the dancing girls, but to the Argonne Forest. It took exactly 30
days for the U.S. Army to induct Harry Specter in Fairbrook, NE, and
ship him overseas. He didn't have a whole lot of training, but he was
``cannon fodder,'' as they expressed. These Doughboys were meant for
the enemy German cannons. They all had a bull's eye painted on their
back. He went to war, and he was wounded in action. He was struck by
shrapnel, and he carried shrapnel in his legs until the day he died.
When my father was in need of medical care, when he had a serious
accident where a spindle bolt broke on a pickup truck when my sister
was driving and rolled over and broke his arm, he was taken to the
veterans hospital in Wichita, KS, where we lived. I was 7 at the time
and would ride a bicycle out many miles from the residential section of
town to where the veterans hospital was located. Now it is all built
up. I had some exposure to the veterans there, and I have had exposure
to veterans as I have traveled around Pennsylvania and on a trip I made
in 1991 around the country to look at veterans' hospitals when I was on
the Veterans' Affairs Committee to see if we had adequate care for the
veterans who might come back injured from the gulf war. Fortunately, we
did not have many casualties from the Gulf War in 1991.
I visited the veterans at Walter Reed, as so many of us have, to try
to give them a morale uplift and to tell them how much we appreciate
their service. It is very difficult for those who go to visit them,
with their artificial limbs and their loss of arms and their metallic
legs. It is obviously disquieting to see them and realize how
difficult, how tragic it is for them. Their spirits, by and large, are
remarkable. But I think of our veteran population when I think about
this amendment. I don't want to dwell on it overly, but I do not think
it is an irrelevancy when we consider this flag protection amendment
and consider what the expectations are.
During the Memorial Day recess I had occasion to travel to Europe to
visit veterans' cemeteries with the Veterans' Affairs Committee.
Senator Craig, the chairman of the Veterans' Affairs Committee now, led
a delegation with the distinguished Senator from North Carolina, Mr.
Burr, who is presiding at the moment, and Senator Johnny Isakson from
Georgia. I was along, and it was an enormously moving experience to see
the rows of white crosses and the rows of Stars of David. We went to
the cemeteries in the Netherlands. We went to the cemeteries in
northern France not too far from the Argonne Forest where my father had
fought. We went to the cemetery in Normandy and saw those steep cliffs
and marveled at how our troops, on June 6, 1944, could scale those
cliffs to lead to the invasion of Europe and free the world of the
despotism of Nazi Germany and Hitler's annihilation of 6 million Jews
and the treachery of Mussolini and the treachery of the war in the
Pacific with the Japanese.
I made a report to the Senate--as I do on my foreign travel--a week
ago today. I noted in that report that when my father, Harry Specter,
was hit by shrapnel in the legs, the possibility--as I saw in viewing
the World War I cemeteries--noted that in World War I, there were
126,000 deaths; in World War II, 407,300 deaths; and, of course, Harry
Specter was not in one of the cemeteries. But had the shrapnel hit him
a little higher, Harry Specter might have been in one of those
cemeteries and he wouldn't have been my father and I wouldn't have
been. Of all the sobering thoughts, none can compare to that one.
I have voted on the constitutional amendment in the past when, years
ago, I voted in favor of the constitutional amendment to protect the
flag, so these thoughts are not new to me or a change of heart. But it
is my view that given the expectation of so many Americans, especially
American veterans, and given the fact that the text of the first
amendment is in no way altered by this amendment, but it is only a
decision by the Supreme Court of the United States, the opinion of five
that freedom of speech precludes flag burning, and the opinion of four
Justices that freedom of speech should not preclude flag burning, it is
my opinion that the opinions of the five Justices ought not to
dominate, and the opinions of the four Justices ought to dominate,
provided that their opinion is the opinion of two-thirds of this body,
two-thirds of the House, and the opinion of three-quarters of the State
legislatures, which provides the constitutional basis for a
constitutional amendment.
I ask unanimous consent that the full text of my printed statement be
printed in the Record.
[[Page S6473]]
There being no objection, the statement was ordered to be printed in
the Record, as follows:
2006 flag amendment
Mr. President, I seek recognition today to support Senate
Joint Resolution 12, which proposes a constitutional
amendment allowing Congress to prohibit the physical
desecration of the American flag. I will vote in support of
this resolution. I do not take this step lightly. Just three
weeks ago, I voted against a proposed constitutional
amendment to define marriage as the union of one man and one
woman. I did so not because I do not support traditional
marriage, but because I believe that we have not reached the
point in time where the extraordinary measure of a
constitutional amendment has become necessary. The states
have shown that they are willing and able to preserve
traditional marriage, and the Supreme Court has not stepped
in to take that power away from them.
With regard to the protection of our most cherished
national symbol, though, we have unfortunately reached the
point where we cannot protect our flag by any means short of
a constitutional amendment. In 1989, the Supreme Court's 5-4
decision in Texas v. Johnson stripped from the people the
ability--through their elected representatives--to make laws
to protect our flag. Prior to the Texas v. Johnson decision,
48 states had laws on the books prohibiting flag desecration.
There was also a 1968 federal law in place to prohibit
desecration of the flag. The 1968 law made it a crime to
``knowingly cast contempt upon any flag of the United States
by publicly mutilating, defacing, defiling, burning, or
trampling upon it.'' (Pub. L. 90-381.)
These state and federal laws existed because it appeared to
be beyond question that we could act to protect the American
flag. In addition to the law prohibiting flag desecration,
Congress had prescribed detailed rules for the flag's design,
the times and occasions for its display, and particular
protocols for conduct during the raising, lowering, and
passing of the flag. In 1907 in Halter v. Nebraska, the
Supreme Court upheld the constitutionality of a Nebraska
statute that prohibited the use of the flag for advertising
purposes.
In later years, the Court continued to recognize the right
of the people to protect our flag. In Spence v. Washington,
the Court struck down a student's conviction for taping a
peace symbol to a flag. But in striking down the conviction,
the Court was careful to note that the defendant ``did not
permanently disfigure the flag or destroy it.'' In the same
year, in Smith v. Goguen, the Court held that a Massachusetts
flag misuse statute was impermissibly vague, but explained
that ``nothing prevents a legislature from defining with
substantial certainty what constitutes forbidden treatment of
United States flags.'' In his concurrence, Justice White went
even further, stating that ``[t]he flag is a national
property, and the Nation may regulate those who would make,
imitate, sell, possess, or use it. I would not question those
statutes which proscribe mutilation, defacement, or burning
of the flag or which otherwise protect its physical integrity
. . . .''
In Street v. New York in 1969, the Court struck down a
protester's conviction for flag burning, but only because it
was unclear whether he was arrested for his conduct in
defacing the flag or for the statements he made as he did so.
Dissenting from the 5-4 majority opinion, Chief Justice Earl
Warren explained that ``the States and the Federal Government
do have the power to protect the flag from acts of
desecration and disgrace.'' Justice Hugo Black, the ardent
exponent of First Amendment absolutism, stated in his dissent
that, ``[i]t passes my belief that anything in the Federal
Constitution bars a State from making the deliberate burning
of the American flag an offense.''
And Justice Abe Fortas articulated ``the reasons why the
States and the Federal Government have the power to protect
the flag from acts of desecration committed in public.'' He
explained that the flag is ``traditionally and universally
subject to special rules and regulation,'' and that ownership
of a flag is ``subject to special burdens and
responsibilities.'' Although ``[a] flag may be property, in a
sense,'' ``it is a property burdened with peculiar
obligations and restrictions'' and ``these special conditions
are not per se arbitrary or beyond governmental power under
our Constitution.''
In light of these repeated statements of support for the
flag from the Supreme Court, it was a surprise when a bare,
five-justice majority of the Court in Texas v. Johnson struck
down Texas's flag protection act and invalidated the laws of
48 states and the federal government.
Congress reacted swiftly to protect the flag by passing the
Flag Protection Act of 1999, which made it a crime to
knowingly mutilate, deface, physically defile, burn, keep on
the ground or floor, or trample upon the United States flag.
We tried to work within the confines of Texas v. Johnson to
ensure that the Flag Protection Act would not target
expressive conduct based on the content of its message. But
the very next year, in United States v. Eichman, five
justices of the Supreme Court the same five justices who
struck down the Texas statute in Texas v. Johnson, held that
Congress could not protect the flag through even a neutral
desecration statute.
This amendment is an extremely narrow solution to correct
those two opinions in the only way the American people can.
For 198 years, from the ratification of the Bill of Rights in
1791 until the Texas v. Johnson decision in 1989, the states
and the Congress were free to protect the flag from
desecration and defilement. Can it be reasonably argued that,
for those 198 years, Americans lacked the freedom of speech
guaranteed by the First Amendment?
I question whether defilement of the flag should even be
considered ``speech'' protected by the First Amendment. To
quote Chief Justice Rehnquist, dissenting in Texas v.
Johnson:
``[F]lag burning is the equivalent of an inarticulate grunt
or roar that, it seems fair to say, is more likely to be
indulged in not to express any particular idea, but to
antagonize others. . . . The Texas statute deprived Johnson
of only one rather inarticulate form of protest--a form of
protest that was profoundly offensive to many--and left him
with a full panoply of other symbols and every conceivable
form of verbal expression to express his deep disapproval of
national policy.''
Flag burning is the equivalent of ``fighting words,'' those
words ``which by their very utterance inflict injury or tend
to incite an immediate breach of the peace.'' Chaplinsky v.
New Hampshire. Fighting words are just one category of
expression that the First Amendment has never protected, for
the First Amendment has never been a blanket cover for every
conceivable form of expression. We have long recognized
numerous exceptions to the First Amendment's freedom of
expression, including: incitement to unlawful conduct; libel
and slander; obscenity; child pornography; and threats of
physical harm.
In other instances, we have balanced an interest in
legitimate speech against overarching societal interests. For
example, Congress has passed copyright laws that limit a
speaker's ability to use the words of another person. The
Supreme Court has also held that government employees do not
have an absolute right to free speech for statements made in
the workplace.
Just because conduct may have some expressive element, it
does not mean that it is entitled to First Amendment
protection. None of us would question the government's power
to prohibit vandalism of the Washington Monument, the Vietnam
Wall, or this beautiful Capitol building, even if the vandal
were expressing his outrage with government policies. Indeed,
Justice White stated in 1974 that ``[t]here would seem to be
little question about the power of Congress to forbid the
mutilation of the Lincoln Memorial. . . . The flag is itself
a monument, subject to similar protection.'' Just as we do
not allow criminals to deface the symbols of our Nation that
stand throughout this city, we should not allow vandalization
and desecration of our most precious and most recognizable
national symbol.
We do not limit the expressive rights of those who wish to
voice dissatisfaction with our government by declaring flag
desecration off-limits any more than we do by prohibiting
desecration of our national buildings and monuments. The
avenues for expressing dissent are still wide open--``a full
panoply of other symbols and every conceivable form of verbal
expression.''
All this amendment seeks to do is restore to Congress the
power it held for those 198 years before five justices took
it away in Texas v. Johnson: the power to protect our flag.
That's all. The amendment itself does not even prohibit flag
burning or other forms of flag desecration. The text of the
amendment is very simple: ``The Congress shall have power to
prohibit the physical desecration of the flag of the United
States.'' In other words, the amendment says, let's give the
people of the United States, through their elected
representatives, the right to offer protection to our most
cherished national symbol.
There are those who claim that because our liberties are
enshrined in the Constitution, the flag is not properly
viewed as the symbol of our liberty. They claim that those of
us who support restoring to the people the ability to protect
the flag are not true defenders of the Constitution. Those
critics are wrong. One of the most important aspects of our
constitutional system is its recognition that we may, from
time to time, need to amend our founding document to reflect
the will of the people. Article 5 gives the people this most
important right. It takes a super-majority of Americans to do
so--two-thirds of the people's elected representatives here
in Congress and three-fourths of the states--so we can rest
assured that our Constitution is only amended when it is
absolutely necessary. But when the opinion of five unelected
judges overrides the voice of the people expressed through 48
state laws and a national flag protection law, how can we say
an amendment is not necessary?
Chief Justice Rehnquist stated in Texas v. Johnson that:
``The cry of `no taxation without representation' animated
those who revolted against the English Crown to found our
Nation--the idea that those who submitted to government
should have some say as to what kind of laws would be passed.
Surely one of the high purposes of a democratic society is to
legislate against conduct that is regarded as evil and
profoundly offensive to the majority of people whether it be
murder, embezzlement, pollution, or flag-burning.''
Our Constitution lives by giving the American people a
means to raise their voices over the words of five justices
here in Washington. The American people have called on
[[Page S6474]]
the members of this body to protect our most cherished
national symbol, and I agree with that sentiment.
Mr. LEAHY. Mr. President, it is my understanding we are now on the
constitutional amendment.
The ACTING PRESIDENT pro tempore. The Senator is correct.
Mr. LEAHY. I thank the Chair.
Mr. President, in 1791, the year that the Bill of Rights became part
of our Constitution, the State of Vermont joined the Union, and then
the State of Kentucky followed. Then Congress saw fit to change the
design of the American flag to include 15 stars and 15 stripes, one for
each State. In fact, it was this flag, the one recognizing the addition
of Vermont and Kentucky to the United States, that flew over Fort
McHenry in 1814 and that inspired Francis Scott Key to write the
``Star-Spangled Banner.''
Fifty years after that famous battle that inspired our National
Anthem in Baltimore's harbor, President Abraham Lincoln visited that
city as our country confronted its greatest test. It was a time in
which this Nation faced grave peril from a civil war whose outcome
could not yet be determined. Many flags flew over various parts of the
United States, and our existence as a nation was in doubt. President
Lincoln used the occasion to reflect on a basic feature of American
democracy. President Lincoln observed:
The world has never had a good definition of the word
liberty. The American people just now are much in need of
one. We all declare for liberty, but using the same word we
do not mean the same thing.
I would hope that all of us in this Chamber champion liberty. If any
of us were asked, we would say: Of course we do. But when I hear some
talk about the desire to restrict our fundamental freedoms by cutting
back on our first amendment rights for the first time in our history,
you see why people wonder. The danger of this amendment is that it
would strike at the values the flag represents and the rights that have
made this Nation a vibrant democratic republic in which we have enjoyed
freedom of religion, freedom of the press, freedom of expression, and
freedom to think as individuals.
Along with Vermonters, I find the American flag inspirational in all
its incarnations, whether it is the current flag with 50 stars that was
carried in formation at Parris Island when my youngest son Mark became
a proud member of the U.S. Marine Corps; whether it is the American
flag with 48 stars under which Vermonters joined in fighting World War
II, including members of my family; the flag commemorating Vermont's
becoming a State; the Bennington flag that commemorated our Declaration
of Independence; or the revolutionary flag with 13 stars in a circle
said to be designed by George Washington and sewn by Betsy Ross.
Ultimately, the debate over this amendment turns on the scope we
think proper to give to speech which deeply offends us. For two-thirds
of the Senate to vote to amend the Bill of Rights to amend the U.S.
Constitution because, as the Constitution requires, that we deem it
``necessary'' in 2006, strikes me as extraordinary. The Senate oath of
office, which the people of Vermont have authorized me to take six
times, requires that we ``support and defend the Constitution.'' And I
believe that doing so means opposing this effort to cut back on
Vermonters' constitutional rights and freedoms.
Regrettably, the Senate leadership is returning again and again to
using constitutional amendments as election year rallying cries to
excite the passion of voters. That is wrong. The Constitution is too
important to be used for partisan political purposes--and so, in my
view, is our American flag.
With the rights of Americans being threatened in so many ways today
by this administration, this is most especially not the time for the
Senate to vote to limit Americans' fundamental rights or to strike at
the heart of the First Amendment.
The chairman has referred to Justice Oliver Wendell Holmes. It was
Justice Holmes who wrote that the most imperative principle of our
Constitution was it protects not just freedom for the thought and
expression we agree with, but ``freedom for the thought that we hate.''
He also wrote that ``we should be eternally vigilant against attempts
to check the expression of opinions that we loathe.''
We all know that the First Amendment never requires people to defend
it when it is upholding popular speech. It needs defense when the
speech is unpopular.
What is so distinctive about America is that our Government does not
endorse religious or political orthodoxy. The price of our freedom of
expression is our willingness to protect the expression of those with
whom we disagree. America does not impose a state-designed dogma on its
free people the way totalitarian regimes do. We value our freedom and
we protect the freedom of others.
Justice Robert Jackson made this point with unsurpassed eloquence in
a Supreme Court decision made during World War II. He did this in West
Virginia State Board of Education v. Barnette. His decision for the
Supreme Court upheld our fundamental tradition of tolerance, holding
that State school boards may not compel teachers and students to salute
the flag.
Remember, Justice Jackson was writing during World War II--during
wartime. He wrote:
[F]reedom to differ is not limited to things that do not
matter much. That would be a mere shadow of freedom. The test
of its substance is the right to differ as to things that
touch the heart of the existing order. If there is any fixed
star in our constitutional constellation, it is that no
official, high or petty, can prescribe what shall be orthodox
in politics, nationalism, religion or other matters of
opinion or force citizens to confess by word or act their
faith therein.
That was a powerful statement by Justice Jackson, at a time when
certainly the attention of this country was focused on a real war
effort, the effort of World War II. But he knew what unifies our
country is the voluntary sharing of ideals and commitments. Americans
are free, free to offend but also free to respond to crude insults with
responsible action--the way many of us remember and applaud--when that
crowd at Dodger Stadium responded by spontaneously singing ``God Bless
America'' when a couple of miscreants attempted to burn the American
flag in the outfield 30 years ago, shortly after the end of the Vietnam
war.
When I am home in Vermont, our family home, I fly the flag--not
because the law tells me to but because, as an American, I want to. I
fly the flag out of pride. I remember my parents, still alive, when
they used to look with pride to see that flag flying and they knew
their son was home from Washington. It is the same sense of pride I
felt when I saw my son march in uniform under that flag, our flag, our
American flag. It is the same sense of pride I feel when I see that
flag flying over this Capitol Building when I come to work each day,
and I stop and look at it sometimes when the Senate leaves at 2 or 3
o'clock in the morning. I look at the dome and I see that flag
illuminated and flying there.
One of my colleagues, former Senator Bob Kerrey, a man of great
bravery, who received the Congressional Medal of Honor for his bravery
in battle, said in a recent opinion piece in the Washington Post,
``Real patriotism cannot be coerced.'' It has to be a voluntary,
unselfish, brave act to sacrifice for others.
I ask unanimous consent that a copy of his op-ed be printed in the
Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
[From the washingtonpost.com, June 15, 2006]
Our Flag and Our Freedom
(By Bob Kerrey)
With campaigns at full tilt and the Fourth of July just
around the comer, the Senate's new priority is to debate and
vote on yet another resolution to amend our remarkable
Constitution. This time it's an amendment that would allow
Congress to prohibit a form of protest that a large majority
of Americans do not like: the burning or desecration of the
American flag. Since 1989, when the Supreme Court decided
unanimously and correctly that these rare, unpleasant
demonstrations are expressions of speech and therefore
protected by the First Amendment, there have been many such
attempts. Fortunately, all have failed.
Unfortunately, enthusiasm for this amendment appears to
have grown even as flag-burning incidents have vanished as a
means of political protest. The last time I saw an image of
the U.S. flag being desecrated in this way was nearly 20
years ago, when the court issued its decision. Thus this
amendment--never appropriate in the oldest democracy on
earth--has become even less necessary. But necessity is not
always the mother of legislation.
[[Page S6475]]
In defense of speech I do not like, I recall a ceremony I
have come to love: a military funeral. The finest of all is
conducted at Arlington National Cemetery. At graveside, an
honor guard holds the American flag while taps are played as
a final farewell. The guards then fold the flag into a
triangle and deliver it to the next of kin.
It is as if the flag becomes the fallen. In the hands of a
widow or mother it is much more than a symbol of the nation.
At that moment the American flag is a sacred object that
holds the sweet memory of a life given to a higher cause. Or
so it seems to me each time I am witness to these hallowed
events.
To others the ceremony may mean something entirely
different. I recall vividly one such situation: A mother of a
friend who was killed in Vietnam recoiled when the flag was
offered to her. She would not take it. In her heart the
American flag had become a symbol of dishonor, treachery and
betrayal. At the time, and perhaps to her dying day, she
wanted nothing to do with it.
If our First Amendment is altered to permit laws to be
passed prohibiting flag desecration, would we like to see our
police powers used to arrest an angry mother who burns a
flag? Or a brother in arms whose disillusionment leads him to
defile this symbol of the nation? I hope the answer is no. I
hope we are strong enough to tolerate such rare and wrenching
moments. I hope our desire for calm and quiet does not make
it a crime for any to demonstrate in such a fashion. In
truth, if I know anything about the spirit of our
compatriots, some Americans might even choose to burn
their flag in protest of such a law.
No doubt the sponsors and advocates of this amendment mean
well. They believe it is a reasonable and small sacrifice of
our freedoms. They believe no serious consequence will come
of this change.
No doubt, too, some of the increasing interest in limiting
free speech is a response to the Sept. 11 attacks on the
United States. It was a remarkable moment, when the hearts of
most of us filled with a kind of pure patriotism we had never
felt before. It was a patriotism that bound liberty to
equality and fraternity. It was a patriotism that brought us
together, friend and stranger alike. We discovered heroes who
inspired us. No longer did we say, ``It's good to see you,''
and not mean it.
Most impressive to me was that the ``we'' included men and
women of many nations, every religion and every ethnic group.
The ``we'' was global. The patriotism we felt extended beyond
our boundaries and beyond the cramped spaces of ritual
nationalistic fervor. We understood that the vulnerability of
our freedom bound us together more than any symbol or slogan
can. Millions of Americans, then and now, proudly flew their
flags because they wanted to, not because any law told them
to.
All the more reason, then, for patriotism to turn aside the
understandable impulse to protect our flag by degrading the
constitutional freedoms for which it stands. Real patriotism
cannot be coerced. Our freedom to speak was attacked--not our
flag. The former, not the latter, needs the protection of our
Constitution and our laws.
Mr. LEAHY. The French philosopher Voltaire once remarked that liberty
is a guest who plants both of his elbows on the table. I think what
Voltaire meant by that is that liberty is sometimes even an unmannerly,
vulgar guest, yet liberty requires we tolerate rudeness even when
admittedly it is hard to do so. That is what allows us, in turn, the
individual freedoms that we cherish for ourselves.
Despicable, outrageous gestures like flag burning are hard to
tolerate, but we do so because political expression is so central as to
what makes America great and what protects the rights of each of us to
speak, or to worship as we choose, and to petition our Government for
redress. The flag is a symbol of the greatness that the American ideals
of freedom and liberty have helped foster in this blessed land. The
Constitution ultimately goes beyond symbols. The Constitution is the
real bedrock of our rights.
In a letter to me expressing his opposition to the constitutional
amendment, my friend General Colin Powell said it very well. Let me
quote Colin Powell in this regard. He said:
We are rightfully outraged when anyone attacks or
desecrates our flag. Few Americans do such things and when
they do they are subject to the rightful condemnation of
their fellow citizens. They may be destroying a piece of
cloth, but they do no damage to our system of freedom which
tolerates such desecration. . . .
I understand how strongly so many of my fellow veterans and
citizens feel about the flag. . . . I feel the same sense of
outrage. But I step back from amending the Constitution to
relieve that outrage. The First Amendment exists to insure
that freedom of speech and expression applies not just to
that with which we agree or disagree, but also that which we
find outrageous.
I would not amend that great shield of democracy to hammer
a few miscreants. The flag will still be flying proudly, long
after they have slunk away.
What powerful, powerful words from General Powell. I ask unanimous
consent a copy of his letter be printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
Alexandria, VA,
May 18, 1999.
Hon. Patrick Leahy,
U.S. Senate,
Washington, DC.
Dear Senator Leahy: Thank you for your recent letter asking
my views on the proposed flag protection amendment.
I love our flag, our Constitution and our country with a
love that has no bounds. I defended all three for 35 years as
a soldier and was willing to give my life in their defense.
Americans revere their flag as a symbol of the Nation.
Indeed, it is because of that reverence that the amendment is
under consideration. Few countries in the world would think
of amending their Constitution for the purpose of protecting
such a symbol.
We are rightfully outraged when anyone attacks or
desecrates our flag. Few Americans do such things and when
they do they are subject to the rightful condemnation of
their fellow citizens. They may be destroying a piece of
cloth, but they do no damage to our system of freedom which
tolerates such desecration.
If they are destroying a flag that belongs to someone else,
that's a prosecutable crime. If it is a flag they own, I
really don't want to amend the Constitution to prosecute
someone for foolishly desecrating their own property. We
should condemn them and pity them instead.
I understand how strongly so many of my fellow veterans and
citizens feel about the flag and I understand the powerful
sentiment in state legislatures for such an amendment. I feel
the same sense of outrage. But I step back from amending the
Constitution to relieve that outrage. The First Amendment
exists to insure that freedom of speech and expression
applies not just to that with which we agree or disagree, but
also that which we find outrageous.
I would not amend that great shield of democracy to hammer
a few miscreants. The flag will be flying proudly long after
they have slunk away.
Finally, I shudder to think of the legal morass we will
create trying to implement the body of law that will emerge
from such an amendment.
If I were a member of Congress, I would not vote for the
proposed amendment and would fully understand and respect the
views of those who would. For or against, we all love our
flag with equal devotion.
Sincerely,
Colin L. Powell.
P.S. The attached 1989 article by a Vietnam POW gave me
further inspiration for my position.
[From the Retired Officer, Sept. 1989]
Thoughts of a Former POW: When They Burned the Flag Back Home
(By James H. Warner)
In March of 1973, when we were released from a prisoner of
war camp in North Vietnam, we were flown to Clark AB in the
Philippines. As I stepped out of the aircraft I looked up and
saw the flag. I caught my breath, then, as tears filled my
eyes, I saluted it. I never loved my country more than at
that moment. Although I have received the Silver Star Medal
and two Purple Hearts, they were nothing compared with the
gratitude I felt then for having been allowed to serve the
cause of freedom.
Because the mere sight of the flag meant so much to me when
I saw it for the first time after five and a half years, it
hurts me to see other Americans willfully desecrate it. But I
have been in a Communist prison where I looked into the pit
of hell. I cannot compromise on freedom. It hurts to see the
flag burned, but I part company with those who want to punish
the flag burners. Let me explain myself.
Early in the imprisonment the Communists told us that we
did not have to stay there. If we would only admit we were
wrong, if we would only apologize, we could be released
early. If we did not, we would be punished. A handful
accepted, most did not. In our minds, early release under
those conditions would amount to a betrayal of our comrades,
of our country and of our flag.
Because we would not say the words they wanted us to say,
they made our lives wretched. Most of use were tortured, and
some of my comrades died. I was tortured for most of the
summer of 1969. I developed beriberi from malnutrition. I had
long bouts of dysentery. I was infested with intestinal
parasites. I spent 13 months in solitary confinement. Was our
cause worth all of this? Yes, it was worth all this and more.
Rose Wilder Lane, in her magnificent book The Discovery of
Freedom, said there are two fundamental truths that men must
know in order to be free. They must know that all men are
brothers, and they must know that all men are born free. Once
men accept these two ideas, they will never accept bondage.
The power of these ideas explains why it was illegal to teach
slaves to read.
One can teach these ideas, even in a Communist prison camp.
Marxists believe that ideas are merely the product of
material conditions; change those material conditions, and
one will change the ideas they produce. They tried to ``re-
educate'' us. If we could show them that we would not abandon
our beliefs in fundamental principles, then
[[Page S6476]]
we could prove the falseness of their doctrine. We could
subvert them by teaching them about freedom through our
example. We could show them the power of ideas.
I did not appreciate this power before I was a prisoner of
war. I remember one interrogation where I was shown a
photograph of some Americans protesting the war by burning a
flag. ``There,'' the officer said. ``People in your country
protest against your cause. That proves that you are
wrong.''
``No,'' I said. ``That proves that I am right. In my
country we are not afraid of freedom, even if it means that
people disagree with us.'' The officer was on his feet in an
instant, his face purple with rage. He smashed his fist onto
the table and screamed at me to shut up. While he was ranting
I was astonished to see pain, compounded by fear, in his
eyes. I have never forgotten that look, nor have I forgotten
the satisfaction I felt at using his tool, the picture of the
burning flag, against him.
Aneurin Bevan, former official of the British Labor Party,
was once asked by Nikita Khrushchev how the British
definition of democracy differed from the Soviet view. Bevan
responded, forcefully, that if Khrushchev really wanted to
know the difference, he should read the funeral oration of
Pericles.
In that speech, recorded in the Second Book of Thucydides'
History of the Peloponnesian War,'' Pericles contrasted
democratic Athens with totalitarian Sparta. Unlike the
Spartans, he said, the Athenians did not fear freedom.
Rather, they viewed freedom as the very source of their
strength. As it was for Athens, so it is for America--our
freedom is not to be feared, for our freedom is our strength.
We don't need to amend the Constitution in order to punish
those who burn our flag. They burn the flag because they hate
America and they are afraid of freedom. What better way to
hurt them than with the subversive idea of freedom? Spread
freedom. The flag in Dallas was burned to protest the
nomination of Ronald Reagan, and he told us how to spread the
idea of freedom when he said that we should turn America into
a ``city shining on a hill, a light to all nations.'' Don't
be afraid of freedom--it is the best weapon we have.
Mr. LEAHY. Another American who honorably served our country, Gary
May, Chairman of Veterans Defending the Bill of Rights, wrote in a
letter:
This country is unique and special because the minority,
the unpopular, the dissident also have a voice. The freedom
of expression, even when it hurts the most, is the truest
test of our dedication to the principles that our flag
represents.
I ask unanimous consent a copy of his letter be printed in the
Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
Veterans Defending
The Bill of Rights,
Newburgh, IN, May 4, 2006.
Re Oppose S.J. Res. 12, the Flag Desecration Constitutional
Amendment.
Dear Senator: My name is Gary May. I am writing to you
today as the chair of a group called Veterans Defending the
Bill of Rights to urge you to oppose S.J. Res. 12, the flag
desecration constitutional amendment. I know you hear from
some who say veterans support this amendment, but you should
also know that there are many veterans that have faithfully
served our nation who strongly believe that amending the
Constitution to ban flag desecration is the antithesis of
freedoms they fought to preserve.
I lost both my legs in combat while serving in the U.S.
Marine Corps in Vietnam. I challenge anyone to find someone
who loves this country, its people and what it stands for
more than I do. It offends me when I see the flag burned or
treated disrespectfully. But, as offensive and painful as
this is, I still believe that dissenting voices need to be
heard, even if their methods cause offense.
This country is unique and special because the minority,
the unpopular, the dissident also have a voice. The freedom
of expression, even when it hurts the most, is the truest
test of our dedication to the principles that our flag
represents.
In addition to my military combat experience, I have been
involved in veterans' affairs as a clinical social worker,
program manager, board member of numerous veterans
organizations, and advocated on their behalf since 1974.
Through all of my work in veterans' affairs, I have yet to
hear a veteran say that his or her service and sacrifice was
in pursuit of protecting the flag.
When confronted with the horrific demands of combat, the
simple fact is that most of us fought to stay alive. The
pride and honor we feel is not in the flag per se. It's in
the principles for which it stands for and the people who
have defended them.
I am grateful for the many heroes of our country. All the
sacrifices of those who served before us would be for naught,
if the Constitution were amended to cut back on our First
Amendment rights for the first time in the history of our
great nation. I write to you today to attest to the fact that
many veterans do not wish to exchange fought-for freedoms for
protecting a tangible object that represents these freedoms.
To illustrate my point, here is what some of the Veterans
Defending the Bill of Rights have said about this amendment:
``During the fighting in Iraq, I saw friends of mine die in
battle. Each of us suffered and sacrificed to provide freedom
to the Iraqi people. With this in mind, I am profoundly
disturbed by the apparent willingness of Congress to
sacrifice our own freedoms here at home by amending the First
Amendment for the first time ever. When the coalition forces
entered Iraq, it was to topple a brutal and repressive
dictatorship, one that did not hesitate to jail and torture
its own citizens who protested against it. By amending the
Constitution to ban a form of expression, Congress dishonors
the legacy of servicemembers who fought and died in defense
of freedom.''--Jeremy Broussard, Bowie, MD, a combat veteran
of Operation Iraqi Freedom and a former Captain in the U.S.
Army whose artillery unit was among the first to enter Iraq.
``The proposed constitutional amendment is in my eyes, and
the eyes of countless other veterans, a slap in the face to
our service in combat. We volunteered to go to war to protect
the freedoms in this country, not watch them be taken away by
politicians who have never been to the front lines. I
consider myself an independent-minded conservative, and
believe that creating unnecessary amendments to the U.S.
Constitution is a betrayal of conservative principles.''--
Specialist Eric G Eliason, Englewood, CO, a combat veteran
who served as an Infantryman in the Army for three years,
including one year overseas as part of Operation Iraqi
Freedom.
``It is a bad thing to burn the flag, but it is a worse
thing to damage the Constitution.''--James Pryde, Tuskegee
Airman, combat veteran of the 477 Bomber Group in WWII.
``After devoting most of my career to working in military
intelligence, I was appointed Army Deputy Chief of Staff for
Intelligence in 1997. I served in that position until my
retirement in 2000. I am well acquainted with the many
threats facing the United States, and I must say that flag
burning does not begin to rise to a level of threat
justifying the attention of this distinguished body... I
served in the United States Army, like my father before me,
to defend fundamental American liberties. To begin the trend
of amending the First Amendment each time a particular form
of speech is found to be offensive sets a dangerous
precedent, and undermines the very freedoms for which I and
my fellow servicemembers served.''--Lt. General Claudia J.
Kennedy (USA, Ret.). Highest ranking woman to ever serve in
the U.S. Army.
``Like many of those who have served in the armed forces, I
am deeply concerned about this proposed attempt to undermine
free speech. While I do take offense at disrespect to the
flag, I nonetheless believe it my duty to defend the
constitutional right of protestors to use the flag in
nonviolent speech.''--Richard Olek, Fargo, ND, Army veteran
and past Commander of AMVETS Jon A. Greenley Memorial Post 7
in Fargo.
``Today the U.S. Senate is again debating an amendment to
the Constitution to ban desecration of the flag. It's an
issue on which I believe I can claim some authority. I laid
my life on the line and fought under the flag of the United
States during World War II. I watched some of my closest
friends fall during eight grueling campaigns, I was awarded a
Silver Star and Purple Heart. I'm a disabled veteran and long
standing Republican since 1940, and nothing angers me more
than the desecration of the U.S. flag. It is an
abomination to me and to other veterans. That said,
though, I believe the push to amend the Constitution to
criminalize flag burning is misguided. Our forefathers
would spin in their graves to think: that our government
would turn the established principle of free speech on its
end and consider persecuting people who disagree with its
actions.''--James Bird, Lumberton, NJ, is a decorated
veteran of World War II, where he survived eight campaigns
in combat and was a liberator of the Dachau concentration
camp.
``. . . to undertake to carve out an area of free speech
and say that this or that is unpatriotic because it is
offensive is a movement that will unravel our liberties and
do grave damage to our nation's freedom. The ability to say
by speech or dramatic acts what we feel or think is to be
cherished not demeaned as unpatriotic ... I hope you will
hear my plea. Please do not tinker with the First
Amendment.''--Reverend Edgar Lockwood, Falmouth,
Massachusetts, served as a naval officer engaged in more than
ten combat campaigns in WWII.
``My military service was not about protecting the flag; it
was about protecting the freedoms behind it. The flag
amendment curtails free speech and expression in a way that
should frighten us all.''--Brady Bustany, West Hollywood,
California, served in the Air Force during the Gulf War.
``The first amendment to our constitution is the simplest
and clearest official guarantee of freedom ever made by a
sovereign people to itself. The so-called `flag protection
amendment' would be a bureaucratic hamstringing of a noble
act. Let us reject in the name of liberty for which so many
have sacrificed, the call to ban flag desecration. Let us,
rather, allow the first amendment, untrammeled and unfettered
by this proposed constitutional red tape, to continue be the
same guarantor of our liberty for the next two centuries (at
least) that is has been for the last two.''--State Delegate
John Doyle, Hampshire County, West Virginia served as an
infantry officer in Vietnam.
``As a twenty two year veteran, combat experience, shot up,
shot down, hospitalized
[[Page S6477]]
more than a year, Purple Heart recipient, with all the proper
medals and badges I take very strong exception to anyone who
says that burning the flag isn't a way of expressing
yourself. In my mind this is clearly covered in Amendment I
to the Constitution--and should not be `abridged'.''--Mr. Bob
Cordes, Mason, Texas was an Air Force fighter pilot shot down
in Vietnam. He served for 22 years from 1956 to 1978.
``Service to our country, not flag waving, is the best way
to demonstrate patriotism.''--Mr. Jim Lubbock, St. Louis,
Missouri, served with the Army in the Phillipines during
WWII. His two sons fought in Vietnam, and members of his
family have volunteered for every United States conflict from
the American Revolution through Vietnam with the exception of
Korea. His direct ancestor, Stephen Hopkins, signed the
Declaration of Independence.
``The burning of our flag thoroughly disgusts me. But a law
banning the burning of the flag plays right into the hands of
the weirdoes who are doing the burning. . . . By banning the
burning of the flag, we are empowering them by giving
significance to their stupid act. Let them burn the flag and
let us ignore them. Then their act carries no
significance.''--Mr. William Ragsdale, Titusville, Florida,
an engineer who worked in the space industry for over 30
years, retired from the US Naval Reserve in 1984 with the
rank of Commander, having served in the Navy for over forty
years including active duty in both WWII and the Korean War.
He has two sons who served in Vietnam.
``I fought for freedom of expression not for a symbol. I
fought for freedom of Speech. I did not fight for the flag,
or motherhood, or apple pie. I fought so that my mortal enemy
could declare at the top of his lungs that everything I held
dear was utter drivel . . . I fought for unfettered
expression of ideas. Mine and everybody else's.''--Mr. John
Kelley, East Concord, Vermont, lost his leg to a Viet Cong
hand grenade while on Operation Sierra with the Fox Company
2nd Battalion 7th Marines in 1967.
I hope you will join me and the Veterans Defending the Bill
of Rights in opposing S.J. Res. 12, the flag desecration
constitutional amendment. We must not allow this ``feel
good'' measure to restrict freedoms for which so many
veterans sacrificed so much. I look forward to working with
you.
Sincerely,
Gary E. May.
Mr. LEAHY. I have been to countries, as have many of us, countries
with dictators--countries like China and Cuba, the former Soviet Union.
They require a law to protect their flags and their symbols. I have
taken great pleasure in those countries to point out that America does
not need the kind of laws they do. America protects our symbols. The
American people honor our national flag out of respect, not out of fear
that they may break a law. I point out to them what real freedom is,
and it includes the freedom to dissent and to differ, even in ways that
I would find obnoxious and offensive.
As the son of a printer, I was brought up to know how important the
First Amendment is to maintaining our democracy. It allows us to
practice any religion we want, or no religion if we want. It allows us
to think as we choose and to express ourselves freely, even though
others may disagree.
We do not have a state-imposed orthodoxy in this great and good
country. Instead, we have freedom and diversity--diversity in religion,
diversity in thought, diversity in speech, diversity that is guaranteed
and protected by our Constitution, our Bill of Rights, and particularly
the First Amendment. When you guarantee and protect diversity, then you
guarantee and protect democracy. When you guarantee and protect
diversity, by definition you are going to have a democracy. No real
democracy exists without diversity. But when you exclude and stamp out
diversity and freedom of thought and expression, you act to stamp out
democracy.
We have seen this in history. In the former Soviet Union or other
totalitarian governments of history, when they wanted to destroy
democracy they started, sometimes in little ways at first, but
ultimately to stamp out diversity in dissent.
American democracy has succeeded because we have fought to live with
that unruly guest with his elbows on our table of which Voltaire spoke,
and to tolerate speech and expressive conduct that probably virtually
all of us here would find disrespectful and crude.
We protect dissent, not because we oppose liberty but because we love
liberty.
Wendell Phillips, a great New England abolitionist, wrote:
The community which dares not to protect its humblest and
most hated member in the free utterance of his opinion, no
matter how false and hateful, is only a gang of slaves.
Probably no person disagreed more vehemently with Wendell Phillips on
the burning issues of their day than Senator John C. Calhoun of South
Carolina. Yet Senator Calhoun came to much the same conclusion in a
speech he gave on the Senate floor, our Senate floor, in 1848, more
than 150 years ago. Senator Calhoun said:
We have passed through so many difficulties and dangers
without the loss of liberty that we have begun to think that
we hold it by divine right from heaven itself. But it is
harder to preserve than it is to obtain liberty. After years
of prosperity the tenure by which it is held is too often
forgotten; and I fear, Senators, that such is the case with
us.
This is what Senator Calhoun said 150 years ago.
I am immensely proud to be given the privilege to be one of the two
Senators who have the opportunity to represent the State of Vermont.
Vermont has a proud tradition defending liberty and encouraging open
debate. We are the State of the town meeting. If you want to experience
open debate, I urge you to attend a Vermont town meeting. Everybody
gets heard. Everybody gets heard about every disagreement, every
differing view. A Vermont town meeting is as democratic as you can get.
There is debate. There is expression. There is disagreement and
agreement. There is freedom and democracy being lived.
In fact, Vermont for many years engaged in such a great and open
debate on this very issue of how best to approach protection of our
flag. For years the Vermont General Assembly remained the only State
legislature not to have passed a resolution in favor of a
constitutional amendment. In January 2002 the Vermont Legislature
passed a resolution, but it was written, interestingly, in a manner
that shows Vermont's respect for the Constitution. It concludes that
the Congress should take steps to ``ensure that proper respect and
treatment . . . always be afforded to the flag,'' but in ways
consistent with the principles that the flag represents, foremost among
these being, ``the protection of individual freedoms enumerated in the
First Amendment to the United States Constitution, including free
speech.''
Our Legislature stopped short of taking the easy way out and simply
parroting a politically popular demand to amend the Constitution.
Rather, Vermont remained true to its proud tradition of encouraging
open debate and called on Congress to ``explore all avenues available''
to protect the flag from desecration. Vermont's actions are consistent
with our strong tradition of independence and commitment to the Bill of
Rights. Indeed, Vermont's own Constitution is based on our commitment
to freedom and our belief it is best protected by open debate.
At one time, when we were afraid we might not have that chance for
open debate, Vermont declared itself an independent republic. In fact,
Vermont did not and would not become a State until 1791. That was the
year the Bill of Rights was ratified. Following that tradition, this
Vermonter is not going to vote to cut back on the First Amendment of
the Bill of Rights for the first time since its adoption.
Vermont sent Matthew Lyon to Congress. He, incidentally, cast the
decisive vote, Vermont's vote, for the election of Thomas Jefferson.
That election was thrown into the House of Representatives. Had Matthew
Lyon voted otherwise, Thomas Jefferson would not have become President.
Matthew Lyon was the same House Member who was a target of a shameful
prosecution under the Sedition Act in 1789. Why? For comments he made
in a private letter. And the power of the U.S. Government, under that
horrible act, came down on Matthew Lyon. He was locked up for daring to
be so critical in a letter.
Vermonters showed what they thought of the Sedition Act and what they
thought of trying to stifle free speech. While Matthew Lyon was in
jail, Vermonters reelected him and sent him back to Congress. Along
with our own lone Congressman, Congressman Sanders, I am working on
that commitment to having a post office named for Matthew Lyon in
Vermont.
Vermont has stood up for the rights of free speech before and since.
Vermont served the Nation during the dark days of McCarthyism. In one
of the most remarkable and praise-worthy actions of any Senator from
any
[[Page S6478]]
State, Vermont Senator Ralph Flanders stood up for democracy in
opposition to the repressive tactics of Senator Joseph McCarthy. When
so many others, both Republicans and Democrats, ran for cover, Senator
Ralph Flanders of Vermont, a Republican, a conservative, a businessman,
came to the Senate floor and said: Enough is enough. He asked for the
censure of Senator McCarthy and allowed people once more in this
country to speak freely.
Vermont has a great tradition we cherish. It is one I intend to
uphold. I honor the Vermont tradition that includes Senator Flanders
when I oppose cutting back the First Amendment and the Bill of Rights.
I know there is an impulse, a natural impulse, to restrict speech
with which we disapprove. But America is strong because we do not fear
freedom; we do not restrict freedom of speech. We should have
confidence our institutions are stronger than a bunch of hooligans and
that their ideas are better than those of cranks and crackpots.
We know the vast majority of the people in this great country are
patriotic, especially thinking of September 11 the way the American
people have demonstrated patriotism, as rarely in our history. I can
never remember a time in our history when I have seen more people fly
more flags, and proudly.
The crisis confronting America is not flag burning. Americans honor
flags as a symbol of our country. Americans also know we face real
challenges. The confidence of the American people and this Government
and institutions is quite low. But even though confidence in the
institutions of our Government may be low, Americans love their
country. They respect the flag. It is the misuse of their Government
for partisanship, the corruption of the Government and its processes,
it is a lack of credibility and competence that they see in their
Government that concerns Americans in the face of real threats and real
problems.
Mark Twain said: Honor your country, question your Government. That
is what is happening today.
I see respect for our flag in the actions and attitudes of the
citizens of America. I see it in the dedication of Don Villemaire and
his friends of Essex Junction, VT, who stood and proudly waved American
flags every single night after the horrible tragedy of September 11,
2001, until the search for remains officially ended. That was a vigil
every single night in Essex Junction, VT--longer than 8 months. That is
showing respect.
I see in Montpelier, my birthplace, in their annual Independence Day
parade, where flags are waved in support of our country and our
soldiers. I see it in the memorial of American flags planted along the
paths of funeral processions of Vermonters killed serving their country
in Iraq and Afghanistan. Vermonters' respect for the flag is born from
respect for this country and the values it protects. Our patriotism is
felt, it is willful. It is not forced on us.
Instead of telling the American people, the people beyond the 100 who
have the privilege of serving here, what they can and cannot do, maybe
we should talk about what we 100 do and how we do it. We honor America
when we in the Senate do our jobs, when and if we work on the matters
that can improve the lives of ordinary Americans. Let the 100 Members
of the Senate work to raise the minimum wage, lower gas prices, provide
better health care and health insurance for more Americans. Let the 100
Senators act to fund the promise of stem cell research that could end
the suffering of so many Americans.
The proposed amendment to the Constitution would do harm to the First
Amendment protections that bind us all against oppression, especially
the oppression of momentary majority thought. The amendment violates
the precept laid down more than 200 years ago that ``he that would make
his own liberty secure must guard even his enemy from oppression.''
It undercuts the principle that a free society is a society where it
is safe to say and do the unpopular. Let us not give away our liberties
in order to impose orthodoxy so others cannot offend.
Let me be clear, I am deeply offended when anyone defiles the
American flag. I expect one thing that unites all 100 Senators is that
every one of us is deeply offended when the flag is defiled. Two years
ago, a flag incident occurred in Vermont outside St. Augustine's Church
in Montpelier. Someone wrapped a statue of the Virgin Mary in the
American flag and set it on fire. This is a church in which I have been
baptized. When this act was first reported, I called it an act intended
to outrage, an attack on the religious community, and a gross show of
disrespect for the flag. We also know acts like these can and should be
prosecuted under Vermont's law, as I suspect they should be under all
of the laws of any of the 50 States. Laws prohibit such damage to
property.
If someone seeks to do harm to the flag I proudly fly in my home when
I am there, they, too, would be prosecuted under Vermont law. In fact,
having been a prosecutor in Vermont, knowing what I know of Vermont
juries, they would be convicted, but I can replace a flag of mine that
was destroyed, and would. I can buy another flag. But if we act to
diminish the Bill of Rights that protect our rights and freedoms of a
quarter billion Americans and of generations to come, we cannot replace
that. We cannot go to the store and buy a new Bill of Rights once it is
diminished.
Ours is a powerful Constitution, all the more inspiring because of
what it allows and because we protect each other's liberty. Let us be
good stewards. Let us preserve and protect for our children and our
children's children a Constitution with the freedoms we were bequeathed
by the founding patriots and by the sacrifice of generation after
generation of Americans.
I urge Senators to think about this vote. Do not diminish that pillar
on which our democracy and our freedoms depend. Do not cut back on the
First Amendment of our Bill of Rights for the first time in American
history.
I yield the floor.
The ACTING PRESIDENT pro tempore. The Senator from Utah.
Mr. HATCH. Mr. President, I will respond, but first I ask unanimous
consent to allow the distinguished Senator from Alabama to speak, and
then allow me to go next.
The ACTING PRESIDENT pro tempore. Without objection, it is so
ordered.
The Senator from Alabama.
Mr. SHELBY. Mr. President, I rise today to express my strong support
for the antiflag desecration resolution that is before the Senate this
afternoon.
Mr. President, 229 years ago this month, the Continental Congress
adopted a resolution giving the United States a flag, the stars and
stripes, the American flag that we know today. There is no greater
symbol of our freedom and our liberty.
The stars and stripes epitomize the underpinnings of the United
States, that which was envisioned and created by the Founders of this
great Nation, solidified by the Framers of the Constitution, and
represented at that first Continental Congress.
Old Glory was raised at Iwo Jima, was placed on the Moon, and drapes
the coffin of every servicemember who has sacrificed his life for our
Nation. Our flag is emblematic of liberty and democracy. It honors all
those who have defended our Nation from enemies at home and abroad, and
all those who carried it into battle and never returned.
Yet there are some throughout this country who have chosen to express
their views and opinions by defacing and even burning the flag. They
believe the flag is simply a piece of fabric upon which stars and
stripes have been sewn. They refuse to respect and revere the flag as a
true monument to the freedoms and ideals of our great Nation. These
notions were bolstered by a 1989 Supreme Court decision that protected
the desecration of the flag.
Throughout the history of our Nation, the flag has been protected by
laws. In fact, before the Supreme Court decision in 1989, 48 States and
the District of Columbia had laws regulating the physical misuse of the
American flag. Even today, a majority of Americans continue to believe
the flag should be protected, that the Court was basically wrong in
their decision.
It is that strong support and my firm belief that we must protect the
flag that has sent me here today to advocate for this resolution. While
some
[[Page S6479]]
have argued we should simply accept court interpretations of first
amendment issues as final, irreversible truths, I disagree. Our system
of government is based upon checks and balances and allows for
legislative reactions to judicial decisions.
While rarely invoked, amending the Constitution is a reasonable
reaction to a controversial and clearly wrongheaded court decision. The
American system of government provided for amendments, and there are
some issues that deserve that attention. I believe protecting the flag
is one.
In debating this issue, we must look beyond burning the flag and
protecting one's freedom of expression. This issue must be considered
in a broader context. We must remember that this issue is about
respecting the single unifying symbol of this great democracy, the
American flag.
Defacing the U.S. Capitol or the Washington Monument would never be
considered legitimate acts of free speech. The flag should be entitled
to the same considerations. The flag is a national treasure, a
monument, even, and like other national treasures, it deserves to be
protected and respected.
Our flag is a unique national symbol that represents common values,
shared aspirations, and the sacrifices of millions of Americans. The
argument is not about legitimate free speech, in my judgment, but,
rather, the extent to which free people must tolerate offensive acts.
While some will say that a constitutional amendment to ban flag burning
unduly inhibits free speech, I respectfully disagree.
Let me be clear. It will not diminish the Bill of Rights, in my
judgment, to allow Congress to define and enforce a law which protects
the American flag much like other national treasures are protected. To
desecrate the American flag, in my judgment, is to desecrate the memory
of the hundreds of thousands of Americans who have sacrificed their
lives to keep our flag flying. It is to destroy everything this country
represents.
There are some things that just need to be treated with respect and
reverence for no other reason than to honor all those who have served
and died for this country.
When we look at our flag, I believe we should see more than a piece
of fabric colored red, white, and blue. We should see our Nation and
all that it symbolizes. Our Armed Forces put their lives on the line
daily to defend what Old Glory represents. We have a duty and a
responsibility to honor their sacrifices by giving the flag the
constitutional protection it deserves.
At this time, before I yield the floor, I thank Senator Hatch for all
of his work in this regard and also for yielding me time.
The PRESIDING OFFICER (Mr. Bennett). Under the previous order, the
Senator from Utah is recognized.
Mr. HATCH. Thank you, Mr. President.
Mr. President, this amendment is a bipartisan amendment. It is
overwhelmingly bipartisan. We have always gotten over 60 votes. The
House of Representatives passes it overwhelmingly and gets the
requisite two-thirds vote every time. It has always been stopped here
in the Senate.
Bringing it up at this time is certainly not an election-year ploy,
as we have Democrats and Republicans who feel very deeply about this
issue. It is bipartisan. The last time we brought it up was in the year
2000. If I had my way, we would have brought it up every one of those
intervening years so the American people could really realize what is
involved here.
So today we begin the debate on the flag protection amendment. This
is an important debate. This is a constitutional amendment. It ought to
be difficult to pass any constitutional amendment, and they truly make
it difficult, requiring a two-thirds vote of both bodies. Assuming we
get those votes and it passes both bodies, it has to be submitted to
the States, and 38 States would have to ratify it, at least 38, in
other words, three-quarters of the States.
I thank my colleagues on both sides of the aisle for supporting this
effort. I especially thank my colleague, the chairman of the Judiciary
Committee, Senator Specter, for working so hard to see this amendment
through the committee. I thank my dear friend from Alabama who just
spoke because, in his own cogent, very clear spoken way, he has made it
very clear this is not some inconsequential, inconsiderate, partisan
thing that is going on here. I also thank the majority leader, Senator
Frist, for bringing it to the floor.
Like I say, this is an important debate. A lot depends on this
debate. In fact, I would say it is a critical debate. Should this
amendment pass, we will restore--that is a very important word--the
power of the people over their own Constitution. We will make it clear
that in America it is the people, not the judges, who are sovereign.
This is a debate worth having. There has been a lot of
misunderstanding about this amendment. I believe even the distinguished
ranking member on the committee has misconstrued this amendment in his
remarks here today. This is what the amendment says. It is simple. It
has nothing to do with free speech. The amendment says:
The Congress shall have power to prohibit the physical
desecration of the flag of the United States.
Let's read that again. It does not ban anything. It says:
The Congress shall have power to prohibit the physical
desecration of the flag of the United States.
This body and the other body will have the power. The other body has
already voted it out of that body by a two-thirds vote. Some say we are
only one vote short of having 67 votes. Some want to make this a
partisan debate. It is not. Some want to make it an election-year
debate. It is not. This is a bipartisan debate over whether we are
going to stand up and restore the Constitution to what it was before
five unelected Justices on the U.S. Supreme Court--to four who totally
disagreed with them--decided to change the Constitution. Those who
argue that this is a change of the Bill of Rights have failed to
recognize there are millions in this country--the vast majority--who
differ with those five unelected Justices. And there were four with an
opinion, written by arguably one of the most liberal Justices on the
court, Justice Stevens, saying that desecrating the flag is not free
speech but offensive conduct.
But even if you want to make that argument, it does not belong here
in the context of this debate because what we are arguing is whether we
can restore the Constitution to what it was before five unelected
jurists, Justices, on the Supreme Court changed it.
The Congress shall have power to prohibit the physical
desecration of the flag of the United States.
I have heard Senators on this floor criticize the administration and
other administrations on both sides of the aisle saying that they have
usurped the powers of the Congress of the United States. Yet some of
them who are voting against this amendment turn around and fail to stop
the usurpation of powers by the Supreme Court of the United States in a
5 to 4 decision.
Well, don't miss the point here.
The Congress shall have power to prohibit the physical
desecration of the flag of the United States.
That is what this amendment says. It is a simple statement of the
power of the people and of their Representatives in Congress. So all
the high-flown talk about the Bill of Rights and this is going to be
the first time the Bill of Rights will be overturned--come on, the Bill
of Rights was overturned when five unelected jurists changed it and
changed the Constitution. Now we will get it back to the people.
This amendment does not ban anything. It does not amend the first
amendment. It does not prohibit speech. What it does is simple. It
restores the power of the people's Representatives to protect the flag
from acts of physical desecration. That is it. That is it. It is that
simple.
The Congress shall have power to prohibit the physical
desecration of the flag of the United States.
In the United States, we have government by the people. The
Declaration of Independence makes it clear that in this country--for
that matter, in any just political community--the people are sovereign.
Sometimes we need to be reminded of this powerful truth. This is how
Thomas Jefferson explained what he called ``the common sense of the
matter.''
We hold these Truths to be self-evident, that all Men are
created equal, that they are endowed by their Creator with
certain
[[Page S6480]]
unalienable Rights, that among these are Life, Liberty, and
the Pursuit of Happiness--That to secure these Rights,
Governments are instituted among Men--
Now, get this last part:
deriving their just Powers from the Consent of the Governed.
It is the first principle of the American founding, and it is one
that the American people still hold true today. Government exists
because of the people, and it only exists with their consent, meaning
our consent.
The Constitution affirmed this when it began with ``We the People.''
The people wrote the Constitution at the Convention. The people created
the Congress and the courts. The people ratified the Constitution. They
gave it life. And the people ratified the first amendment.
Yet, for too long, some unelected judges have mistakenly concluded
that it is the courts that have exclusive dominion over the
Constitution. This is a chance for us to say to the Supreme Court: We
are not going to let you intermeddle in the affairs of the people
themselves with regard to the flag of the United States.
For too long, some unelected judges have mistakenly concluded that it
is the courts that have exclusive dominion over the Constitution.
The Constitution began with ``We the People.'' The people wrote the
Constitution at the Constitutional Convention. The people created the
Congress and the courts. The people ratified the Constitution and gave
it life. And the people ratified the first amendment.
Yet the courts seem to say they are the only ones who have authority
over the Constitution. This was certainly the case in 1989, when a
severely divided Court reversed 200 years of American jurisprudence and
overturned the considered judgment of the American people in almost
every State.
For generations, the American people provided protections for their
beloved symbol, the flag.
On June 20, 1989, 48 States and the District of Columbia had statutes
that protected the flag from physical desecration.
On June 21, 1989, all of those statutes suddenly became
unconstitutional--all of the people's statutes, all of that work by all
of these legislatures and the District of Columbia. All of them were
ruled unconstitutional by five unelected Justices who were contested by
four Justices on the Court.
Now, how did this come to pass? One vote on the Supreme Court
switched, one vote. That is it. One vote and the will of the people in
virtually every State in the Union was overturned--in nearly every
State. One vote, one person--five people.
For many years, the Court well understood the obvious and compelling
interest of political communities in protecting the American flag from
desecration. In 1907, Justice Harlan wrote for the Supreme Court in
Halter v. Nebraska. That decision reviewed a Nebraskan statute
protecting the flag from physical misuse.
This was Justice Harlan's--one of the all-time greatest Justices on
the Supreme Court--conclusion:
It is not remarkable that the American people, acting
through the legislative branch of the Government, early in
their history, prescribed a flag as symbolical of the
existence and sovereignty of the Nation . . . [L]ove both of
the common country and of the state will diminish in
proportion as respect for the flag is weakened. Therefore, a
state will be wanting in care for the well-being of its
people if it ignores the fact that they regard the flag as a
symbol of their country's power and prestige, and will be
impatient if any disrespect is shown towards it.
In short, there was a clear interest in providing protection for the
American flag, recognized by one of the greatest Justices in the
history of the Supreme Court.
Now, following this holding in the Court, the National Conference of
Commissioners on Uniform State Laws approved the Uniform Flag Act in
1917. Section 3 of that act provided that:
No person shall publicly mutilate, deface, defile, trample
upon, or by any word or act cast contempt upon any such flag,
standard, color, ensign, or shield.
Now, many States used this Federal statute as a model for their State
statutes or to supplement existing statutes.
There is no doubt that desecrating a flag is meant to express
something. But as the late Chief Justice Rehnquist understood, that
expression is more akin to an ``inarticulate grunt'' than a serious
public statement when they desecrate the flag. The States concurred
when they did their own balancing of the interests of the political
community in protecting the flag with the interest of the individual in
expressing himself.
The Court agreed that not all expressive conduct could simply be
labeled speech and given full first amendment protection. As the
Supreme Court explained in United States v. O'Brien:
[W]e cannot accept the view that an apparently limitless
variety of conduct can be labeled ``speech'' whenever the
person engaging in the conduct intends to express an idea.
In instances where expressive conduct, not speech, is at issue, the
Court must balance the interests of the community in prohibiting this
conduct with the interests of the person who wishes to express himself
or herself. With regard to flag burning, the Court's approach was
measured. In Smith v. Goguen, the Court overturned a flag desecration
conviction in Massachusetts, concluding that the statute which punished
words and acts of desecration was void for vagrants. The Court added,
however, that:
nothing prevents a legislature from defining with
substantial specificity what constitutes forbidden treatment
of United States flags.
This is the Supreme Court. The Court pointed to the Federal flag
protection statute, one which prohibited only physical desecration
rather than words, as an example of a constitutionally permissible
statute. And so it was, until five unelected Jurists changed it--
actually, until one vote changed it, one vote combined with the four
who had always voted against the flag.
The Court and the people were in agreement. Not all expressive
conduct can receive first amendment protection. The Government's
interest in protecting the American flag from physical desecration was
a real one. But be that as it may, we could argue right now about
whether this is conduct or whether it is speech. The fact is, we are
not talking about free speech. We are talking about restoring the
Constitution to what it was before five unelected judges or Justices on
the Supreme Court changed it. And it really came down to one changed
vote on the Court because the Court had always upheld amendments that
protected the flag from acts of physical desecration.
The flag is a unique symbol of our nationhood that demands
protection. The American people do not share a common religion or
common political beliefs. We do not share a common ethnic heritage. But
there are a few public symbols we do share as people. The American flag
is a unique representation of our remarkable union. Its 13 stripes
represent our origins as a nation, and its 50 stars, separate but
unified on a field of blue, represent what we have become. From a small
outpost of the Colonies fighting for freedom, we have become a beacon
of liberty to the whole world.
For years, interest in protecting this symbol was deemed strong and
real enough to rebut serious constitutional challenges. What changed?
Why do the American people no longer have the right to protect the flag
from acts of physical desecration? Why can't the Congress do that? One
vote switched and went with the other four, and all of these rights
were gone. So to those who say this is a denigration of the first
amendment, the first amendment was denigrated when five unelected
Justices took the power away from the people.
Prior to 1989, 48 States protected the flag, and the other two
basically stood for protecting the flag, and the District of Columbia.
I am not making this up. On June 20, 1989, nearly every State had laws
protecting the flag from physical desecration. All those States rights,
all the people's rights, were wiped out when one person changed his
vote on the Supreme Court. One day later, after June 20, 1989, all of
these State laws were unconstitutional. All that changed is the Supreme
Court determined that it would disregard the beliefs of the American
people and their representatives in Congress and in the States.
When the Supreme Court had the opportunity to execute its balancing
test in Texas v. Johnson, balancing the interests of the people and
prohibiting certain conduct with the individual's
[[Page S6481]]
interest in expressing himself in a particular manner, the Justices put
their finger on the scale. They rejected as insufficient the States'
interests, all of these States and their interests, one supported by
the people in protecting the flag. They did not do so through a
unanimous opinion. The Justices were severely divided, issuing a 5-to-4
decision. The dissent of Justice John Paul Stevens, arguably one of the
most liberal Justices in history, was compelling. He dissented from
that five-person majority case. He spoke for the opinion that the Court
had arbitrarily abandoned. Here is what Justice Stevens said:
The Court . . . is quite wrong in blandly asserting that
respondent ``was prosecuted for his expression of
dissatisfaction with the policies of this country, expression
situated at the core of our First Amendment values.''
Respondent was prosecuted because of the method he chose to
express his dissatisfaction with those policies. Had he
chosen to spray-paint--or perhaps convey with a motion
picture projector--his message of dissatisfaction on the
facade of the Lincoln Memorial, there would be no question
about the power of the Government to prohibit his means of
expression. The prohibition would be supported by the
legitimate interest in preserving the quality of an important
national asset. Though the asset at stake in this case is
intangible, given its unique value, the same interest
supports a prohibition on the desecration of the American
flag.
That is Justice Stevens, who wrote the opinion for the Court and who
many would arguably say may be the most liberal Justice on the Court.
The American people agreed: the Court got this one wrong. They got it
very wrong. So Congress acted immediately. We believed that Congress
did have the power to protect the flag. For well over 100 years, the
Court had upheld State and Federal protection measures.
On July 18, 1989, two separate measures were introduced in the
Senate. Former Senators Robert Dole, Alan Dixon, Strom Thurmond, and
Howell Heflin introduced S.J. Res. 180, which would restore the power
to protect the flag to the States and affirm the existing power of
Congress to do so. On the same day, Senators Joseph Biden, William
Roth, and William Cohen introduced the Flag Protection Act.
While the amendment would have merely restored and confirmed the
power of the people's representatives to protect the flag, as this
resolution does, this statute which was filed by Senators Biden, Roth,
and Cohen would have actually codified that legal protection.
Ultimately, the Senate acted on the bill authored by my colleague
from Delaware, Senator Biden. As chairman of the Judiciary Committee,
he was committed to resolving this issue. He held four hearings with 20
hours of testimony and 26 witnesses. I was there. After consulting with
many experts, he was convinced that his bill would pass constitutional
muster. It was a great bill, consistent with the desires of the
American people. It provided extremely broad protection for our
American flag. This is what became law. This is Senator Biden's
language and others of us who supported it:
[W]hoever knowingly mutilates, defaces, physically defiles,
burns, maintains on the floor or ground or tramples upon any
flag of the United States shall be fined under this Title or
imprisoned for not more than one year, or both.
This bill passed by an overwhelmingly bipartisan vote. There are not
many things which go through the Senate on a vote of 91 to 9, but the
determination to pass a constitutional statute to protect the flag from
physical desecration was one of them. Going back and looking at that
rollcall vote, we should be proud of our actions. Current Senators,
including my colleagues on the Judiciary Committee, Senators Biden and
Herb Kohl, supported the bill. So too did my colleague from Kentucky,
Senator McConnell, who has since been elected majority whip. A number
of other Senators who are no longer here supported this as well,
including former Democratic leader Tom Daschle. It was a good bill. But
the Supreme Court had other ideas.
On June 11, 1990, the Supreme Court struck down this overwhelmingly
congressionally approved statute in United States v. Eichman. Again,
this Court was severely divided along familiar lines. So what now? What
course of action is available to Congress? They have made it clear you
can't do this by statute. They made it abundantly clear. The Court had
given us its opinion. It said that statutory protection of the American
flag was not content-neutral and therefore violated core constitutional
rights to expressive conduct. An amendment really is the only way we
can solve this problem. So Congress began to focus its attention on a
constitutional amendment that would restore the power of the people to
protect the flag from acts of physical desecration.
Those who supported this amendment believed that the Court got this
one wrong, badly wrong, and it was up to the people to correct these
decisions. A constitutional amendment is really the only way to do it.
I am not the only one who has thought so. Some of the most compelling
statements on behalf of an amendment have come from my colleague from
North Dakota, Senator Conrad. In the past, he argued forcefully for an
amendment to fix this problem:
Because I believe that the flag should have legal
protection, I supported statutes last year and today to
protect the American flag. But these attempts have failed.
And now we are left with no other choice if we believe that
the flag deserves protection.
Senator Conrad went on to say:
We should let the States decide this matter. If we fail to
adopt an amendment today, we will deny the States the right
to express their views on this matter.
That was a statement made in 1990.
By approving the constitutional amendment before us, we
will foster a healthy debate in this country about the Bill
of Rights, the freedoms we enjoy, our constitutional
guarantees, and how we can legally and legitimately protect
the flag. It is for these reasons that I will support a
constitutional amendment in this body and let the people
decide this important matter.
I agree with that. That statement was made on June 26, 1990. He was
right. This is the way to create a debate all over the country that
would be a debate on virtue and values. I couldn't have said it better
myself than the way Senator Conrad said it in 1990. An amendment really
is the only way.
In a recent letter on this subject, Stephen Presser, professor of
legal history at Northwestern University School of Law, explained that
an amendment was and remains our only option. He said:
We were told by proponents of a statute to correct the
Court's error in 1989 that they could draft one that would
survive Constitutional challenge. I testified at a hearing
before the Judiciary Committee at that time that it could not
be done, and, sure enough, in 1990, the Supreme Court ruled
in U.S. v. Eichman that the statute (which scholars such as
Larry Tribe, for example, told us would be deemed
constitutional) was unconstitutional. It is significant that
Professor Tribe, along with his Harvard colleague Richard
Parker have now clearly taken the position that no flag
protection statute can pass Constitutional muster. They are
correct: any statute would be deemed by the Court to be the
government's unconstitutional favoring of one form of speech
over another, and would thus be deemed to be unconstitutional
content, discrimination with regard to speech.
A constitutional amendment is the only way. The alternative is to do
nothing. Congress believed that it had the power to protect the flag;
the Court disagreed.
I listen to many of my colleagues routinely complain that other
branches are usurping the powers of Congress. I have heard that through
my whole 30 years in the Congress. They are always complaining about
the executive branch usurping the powers of Congress. The judicial
branch is usurping the powers of Congress. Here we have a chance to
restore those powers:
The Congress shall have the power to prohibit the physical
desecration of the flag of the United States.
What does that ban? It doesn't ban a thing. All it says is that we
are going to restore the power the Congress had before five unelected
Jurists said we didn't have the power.
When we passed the Flag Protection Act in 1989, we believed we had
the power to pass that bill. The Court had different ideas. They
overturned this overwhelmingly bipartisan legislation. We have an
overwhelmingly bipartisan constitutional amendment here. It isn't
partisan. It is bipartisan. We will have people come on the Senate
floor and try to make this a partisan issue, which is all too frequent
around here, and ignore the fact that a lot of colleagues on both sides
of the floor, an overwhelming number, are in favor of this amendment.
If we want a statute to do this, we need to restore our
constitutional authority to pass it--the alternative to
[[Page S6482]]
our constitutional amendment, a simple amendment, restoring the power
to the Congress. That is all it does. If you listen to the media, they
act like it is going to be a ban. It would not be a ban. If we can pass
this amendment and have it ratified by 38 States, I have no doubt there
will be a constitutional debate on the floor as to what language will
protect our beloved flag. It would take at least 60 votes on the floor
of the Senate to pass any language because of our filibuster rule, so
it is going to take a supermajority no matter what. We are not about
that right now. That has nothing to do with this amendment, except it
would be inevitable. What has to do with it is restoring the power to
the Congress which was taken by five unelected Justices on the Supreme
Court. If we want this type of statute, it is important to restore our
constitutional authority to pass it.
As I said, the alternative to this amendment is to do absolutely
nothing and acquiesce in the usurpation of our institutional power by
another branch of Government. By doing nothing, we accede, through our
inaction, to a decision by five unelected Justices who took the power
from an American people over an important cultural issue.
Abraham Lincoln addressed this issue before becoming President. What
do you do when the Supreme Court gets it wrong? This is what Lincoln
taught us:
The candidate citizen must confess that if the policy of
the Government upon vital questions affecting the whole
people is to be irrevocably fixed by decisions of the Supreme
Court, the instant they are made in ordinary litigation
between parties in personal actions, the people will have
ceased to be their own rulers, having to that extent
practically resigned their Government into the hands of that
eminent tribunal.
Well, that is what Lincoln had to say. Are we going to just continue
to allow five unelected Jurists to determine what the vast majority of
the American people believe is right or are we going to continue to
determine that they are taking away the power that the Congress has
always had? We should restore that power? That is what this amendment
does.
The answer in a democracy is that you let the people decide,
especially on these sensitive, tough issues. I routinely hear some of
my liberal colleagues who have recently re-minted themselves as
progressives, complain that we don't listen to the people enough. They
encourage direct democracy. They speak at blogging conventions. Let's
see them put their money where their mouth is. There is nothing more
discouraging to a democracy than a divided court abandoning its past
precedent, overturning laws in 48 States, and overturning a duly passed
Federal statute.
The reasonable reaction of many Americans might be: why bother? Why
bother to write and e-mail and petition Congress? Why advocate on
behalf of legislation? When it is all said and done, the Supreme Court
will appear deus ex machina and declare those laws unconstitutional,
even absent any real precedent, text, or tradition to support its
decision.
Fortunately, that hasn't been the reaction among our Nation's civic
groups. Everybody from the American Legion, to the Fraternal Order of
Police, to the Knights of Columbus has urged Congress to support this
amendment. They have been tireless in their efforts. They see this
constitutional amendment for what it is. All this constitutional
amendment does is restore power to the people's representatives in
Congress. Read it again:
The Congress shall have power to prohibit the physical
desecration of the flag of the United States.
All it does is restore it to where it was. It was the Court that
changed the Constitution. It is not us changing it. We are trying to
restore it to where it was and send a message to the Supreme Court that
on these great social issues you have to let the elected
representatives of the people make these decisions for the people, and
you should quit playing around with issues for which you should not
have responsibility but the people should.
This is not a perennial partisan issue. This has not just been
brought up because we are in an election year. I would bring it up
every year if we could. The last time it came up was in 2000. This is
overwhelmingly bipartisan. Republicans and Democrats, liberals,
moderates, and conservatives all support our efforts. In fact, it makes
you wonder who would not support it in the Congress because all we are
trying to do is give the power back to the Congress.
Quite the contrary. It is broadly supported on both sides of the
aisle, and the groups supporting it are distinctly nonpartisan.
At the Judiciary Committee markup of this resolution a few weeks ago,
Senator Feinstein spoke eloquently on its behalf. She has been one of
the amendment's strongest supporters. Last week, this is what she had
to say in an editorial in USA Today:
Throughout our Nation's history, the flag has been
protected by law. In 1989, 48 of our 50 States had statutes
restricting flag desecration. . . .But its protection ended
in 1989, when the U.S. Supreme Court struck down a Texas law
prohibiting flag desecration. Congress responded by passing
the Flag Protection Act of 1989, but the Supreme Court struck
down that law as well. The only way to restore protection to
the flag is to amend the Constitution. Otherwise, any
legislation passed by Congress would be struck down.
The flag Protection Amendment would not prohibit flag
burning. Rather, the amendment would simply return to
Congress the ability to protect the flag as it has been
protected throughout most of this Nation's history.
That is what she said. This is not a partisan issue. I am confident
that all of this constitutional amendment's supporters would prefer to
see it off the agenda. We want it passed and sent to the American
people for ratification. We are getting very close. We have voted on
this amendment in the Senate only twice before. The last time we voted
on it was in 2000. Right now, we have 60 upfront cosponsors. Three of
my colleagues who are not cosponsors voted for the amendment as
Senators in 2000. Another three voted for it while members of the House
of Representatives. These are people who are not among the 60.
In the case of Senator Menendez, he is going to have the opportunity
to vote for it twice in the same Congress--once as a Member of the
House, where he did, and now as a Senator. That is pretty unique.
I have no doubt that if Members voted their consciences, we would be
well above the required 67 votes. Unfortunately, radical special
interest groups are strongly opposed to this amendment. It appears from
some press accounts that they are prepared to bring down the hammer,
unless some Members pull back their support with inspired and last-
minute changes of heart.
I know many newspaper editorial boards oppose this amendment. They
still think it is a banning amendment. They think we are banning flag
desecration. No, we are not. Right now, this amendment says the
Congress will have the power to prohibit the physical desecration of
the flag of the United States. It doesn't ban anything. Many law
professors--or some at least--oppose this amendment. The ACLU opposes
this amendment. But the people support it. It is insulting to them to
suggest that they want to amend the first amendment, as the talking
points opposed to our effort put it. This proposal does not amend the
first amendment; it restores the power of the people to the people.
Do over 60 colleagues oppose the first amendment? Bipartisan
colleagues. Do the majority of Americans in every State oppose the
first amendment? Do some of our Nation's finest civic organizations
oppose the first amendment? Do four Justices on the Supreme Court of
the United States oppose the first amendment? Of course not.
But they do think the Court got these decisions badly wrong. They
think the people have the right to protect the flag, consistent with
the first amendment. They think the opinion of five unelected Judges
should not forever bind the American people.
We need to send this amendment to the States and let them determine
whether they are going to ratify it. I guarantee you that it will
create a debate on virtue, which has kept this country the greatest
country in the world, and values, which our young people need to see
more of. We will debate it in every State if we can pass this by 67
votes.
It is beyond time. I do not know what so many of my colleagues fear.
They say this is not a major issue. Who is kidding whom? This is the
American
[[Page S6483]]
flag. This is our national symbol. They say that flag burning is a rare
occurrence. That is not that rare.
As this chart indicates--and I will put it up here--flag desecration
is an ongoing offense against common decency. These are recent
incidents of flag desecration: Montpelier, VT, June 19, 2004;
Littleton, NH, September 9, 2004; Las Vegas, NV, September 11, 2004;
Sarasota, FL, December 20, 2005; St. Clair Shores, MI, August 27, 2005;
Beaumont, TX; Hurricane, UT, July 4, 2005, right on Independence Day;
Maryville, TN, July 4, 2005; Murrieta, CA, July 2, 2005; Sarasota, FL,
June 28, 2005. There are many more listed here; that is just mentioning
some of these. We know there are a lot more than that, I am sure.
Look at this article that just happened a few days ago. A reward was
offered Friday for information leading to the arrest of whoever burned
seven American flags in the Marine Park section of Brooklyn this week.
This is dated June 23, by the way, 2006, last week:
The flags, including one that was hung by a couple after
their son was killed in the September 11, 2001, terrorist
attacks. They were burned in what police said was a case of
criminal mischief. Residents of seven homes woke up Thursday
morning to find their flags torched, police said.
Investigators said they believe the flag burning occurred
some time overnight. ``As we approach the celebration of our
Nation's independence, this July 4, some vandal has defined
our freedoms, rights, and liberties by setting fire to the
American flag,'' said State Senator Martin Golden who offered
a $1,000 reward. ``Flag burning is something we will not
tolerate in our neighborhood''.
Regina Coyle said:
I can't believe someone would actually invade our personal
space. We lost so much. It is the flag.
Other residents said they found the vandalism equally upsetting.
All I can say is that you can go back in time and find hundreds,
maybe even thousands of these incidents. We are not even talking about
those we don't know about. For the American people, and for me, even
one instance of flag burning is one too many. My brother died in the
Second World War fighting for us. Another brother-in-law died in
Vietnam. We buried our top sergeant marine brother-in-law in Arlington
a year or so ago. I feel deeply about this.
The first amendment guarantees another right besides the freedom of
speech. It gives the American people the right ``to petition the
Government for a redress of grievances.'' I have to tell you, the
American people are aggrieved, sick and tired of unelected judges
taking the most important issues out of the hands of the people and
their representatives and acting like junior legislators who will draft
our social policies for us. This is bad for democracy, and it is
inconsistent with the American Constitution. The American people have
spoken in a historic event. All 50 States--every one of them--have
petitioned the Congress to protect the American flag, every one of
them. So if you hear some who are opposed to this constitutional
amendment come on the Senate floor and say ``this is political, this is
an election year,'' think about that.
All 50 States have petitioned us to do what this amendment will do:
restore the Constitution to what it was before these five unelected
Justices changed it.
As I said before, if we are to be responsive to our constituents, we
only have one option: We must pass this amendment and send it to the
States for ratification.
I understand some of my colleagues have some reservations about the
amendment. Some are very sincere--not all but some are. I urge them to
trust the people, to trust their instincts.
This amendment is not going away so long as I serve in the Senate. I
will certainly fight for it. Should we pass this amendment, I think we
would see perhaps the greatest public debate that we have witnessed in
our lifetime. The debate over ratification in every State will be an
ongoing history lesson for younger Americans. It will bring them in
contact with our veterans to whom we owe our freedom, and it will
introduce them to the civic organizations that are the soul and spirit
of our democracy.
Yes, there are some very fine people and noted people who don't think
we should do this, but if you look at their comments, they are not that
they don't think we should restore to the Congress that which the
Congress should have. They are actually treating this amendment as if
it is an absolute ban of free speech when, in fact, it has nothing to
do with that.
I have to admit, if we pass this amendment and it is ratified, I am
sure there will be a debate over what form of language should we have
to protect our beloved flag. What is important is to have our young
people come in contact with the veterans and others to whom we owe our
freedoms.
The Constitution begins with ``We the people,'' and in the end it is
still we the people, it is the people's Constitution. We should send
this constitutional amendment to the States. I want everybody to think
about this. As we hear them talk about: Oh, we must protect our rights
of free speech, and so forth, this doesn't have anything to do with
free speech. Read the words. Indirectly, I guess you could say it does
in the sense that undoubtedly there will be a debate if this is passed
and ratified, but it would still take a supermajority of the Senate to
pass any form of statute afterwards. There would be plenty of
protections for those who would disagree with our position. But for
those who argued against this amendment, many of whom are constantly
arguing about the usurpation of congressional powers by the Executive,
especially when the Executive is not of their own party, this is a
chance to restore the power back to the Congress that should never have
been taken by five unelected Jurists to begin with.
We should send this amendment to the States. We should let the people
decide because, after all, that is all we would be doing. If we pass
this constitutional amendment, we will be turning it over to the people
themselves. Whatever people want to debate they can, and it would take
an overwhelming 38 States, or three-quarters of the States, to ratify
this amendment so that it would become the 28th amendment to the
Constitution.
I can't think of a more complete declaration of the rights of the
people than this particular very simple amendment that ``Congress shall
have power to prohibit the physical desecration of the flag of the
United States.''
Mr. President, I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The legislative clerk proceeded to call the roll.
Mr. DURBIN. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. DURBIN. Mr. President, pending before the Senate is S.J. Res. 12.
It is a one-page resolution which is being suggested for passage by the
Senate. It is a matter which we will likely debate the rest of this
week. The reason we are going to spend this much time on it is because
this one-page document represents a historic change in America. If this
amendment were to be ratified, it would mark the first time in our
nation's history that we would amend the Bill of Rights of the United
States of America.
The handiwork of Thomas Jefferson and our Founding Fathers, which has
guided our Nation for over 200 years, which has become a model for
nations around the world in terms of liberty and freedom, is about to
be changed if the sponsors of this amendment have their way.
It takes a great deal of audacity for anyone to step up and suggest
to change the Constitution. It happens. There is an amendment process.
But in this particular instance, I think what we are about to do is
wrong.
Earlier this month, the Senate debated and voted on a constitutional
amendment to ban same-sex marriage. This amendment was, of course,
defeated. Now, as I said, we are debating this constitutional amendment
to criminalize the desecration of the U.S. flag.
I am not quite sure that our Senate in which we serve still has its
bearings. That we would so quickly consider amending this Constitution,
which has served our Nation so well and for so many years, so
frequently suggests to me that there may be something at work here that
goes beyond constitutional law and constitutional study.
[[Page S6484]]
This marks the fifth time in 17 years that Congress has debated
amending the U.S. Constitution to prohibit burning or desecration of
the United States flag--the fifth time. In the final weeks of this
Congress, with all of the other urgent challenges facing our Nation,
why are we coming back to this amendment, having finished the same-sex
marriage amendment unsuccessfully? Well, perhaps the argument has been
made--and I think my colleague and friend from Utah, Senator Hatch,
just made it--that there is a serious problem in America with flag-
burning.
The Citizens Flag Alliance is a group that supports Senator Hatch's
position on flag-burning, and they keep track of how many people in
this Nation of about 300 million have actually engaged in this
disgusting practice of burning our flag. So far, in the year 2006 in
the United States of America, with almost 300 million people, the
Citizens Flag Alliance has recorded two instances of flag burning--
two--in the entire United States of America. There has been an average
of only seven acts of flag desecration annually in America in the last
6 years. So to argue that we have this growing trend toward desecration
and burning our flag defies the facts.
Here, the Citizens Flag Alliance gave us a State-by-State background
where flags were burned or desecrated in the year 2004. So let's count.
In this column of States: None. In this column of States: Two. And here
in the State of Vermont: One. So three times in the year 2004, the
Citizens Flag Alliance found three incidents where flags were
desecrated--three times in the entire year.
In 2005, the same group reported a total of 12 instances--one a month
in the United States of America--of people desecrating and burning
flags. The source: The Citizens Flag Alliance that supports this.
So to suggest that the United States is somehow facing a rash of this
disgusting conduct just isn't true. In fact, it rarely, if ever,
happens.
So why would we change the handiwork and fine contribution to America
of Thomas Jefferson and our Founding Fathers? I think there is more to
the story than what we heard from one of the Senators who came before
us a few moments ago. I wonder if there are things which we might be
considering on the floor of the Senate of more importance to the people
of this country.
Is changing the Constitution because 4 people desecrated American
flags this year more important than finding a way to help 1 million
Americans who lost their health insurance over the last 12 months? Is
debating this amendment how Congress should be spending its time?
When we debated the constitutional amendment to ban gay marriage, I
cited a Gallup poll from April. They went to 1,000 Americans and they
asked them the following question: What do you think is the most
important problem facing this country today--1,000 people across our
Nation. Gay marriage--the subject of the constitutional amendment which
was defeated and part of the Republican agenda 2 weeks ago--ranked 33rd
on the list of important issues facing America in this recent poll.
But wait a minute. What about flag burning? When you ask 1,000 people
across America the most important problem facing this country today,
where did it show up on the list of American priorities? It didn't.
Americans cited 42 different issues as pressing priorities for America,
but banning flag-burning was nowhere to be found.
Last week a poll was taken by none other than Fox News. Even though
they often fail in their self-proclaimed effort to be fair and
balanced, they asked 900 registered voters around the country this
question: Which one of the following issues do you think should be the
top priority for Congress to work on this summer? This is Fox, my
friends, Fox News. They asked 900 voters, and here are the choices they
gave them: Iraq, immigration, gas prices, same-sex marriage, and flag-
burning. What did our friends at Fox News discover? What percent of
Democrats said flag-burning should be the top priority of Congress?
Zero.
In the halls of Fox News, I am sure they said, of course you wouldn't
expect the Democrats to be patriotic enough to understand that flag-
burning is a top priority. No wonder none of the Democrats in our 900-
person poll identified flag-burning as a top issue.
But wait. What percentage of Republicans said flag-burning should be
the top priority of Congress? Zero. That was the single issue that
united Democrats and Republicans. When they looked at the big issues
that we could consider, Democrats and Republicans agreed this did not
belong on the list.
But it is on the list of the Republican majority in this Senate, and
we are going to spend a week on it. We are going to spend a week on it,
instead of talking about energy policy in America and bringing down the
cost of gasoline for families and businesses and farmers. We are going
to spend a week debating this amendment, which the American people have
not even identified as a serious priority or a serious problem, instead
of dealing with health care in America. We are going to spend an entire
week debating this, instead of addressing the issue of global warming,
which is a threat not only to our generation, but generations to come.
This amendment is truly a solution in search of a problem. Why are we
debating it again? We know the answer. We are here because the White
House and the congressional Republican leadership are nervous about the
upcoming elections. They want to exploit Americans' patriotism for
their gain in November.
It is the same thing with the gay marriage amendment. It wasn't a
priority for America; it is a priority for Karl Rove and the Republican
strategists.
The real issue here isn't the protection of the flag, it is the
protection of the Republican majority. We are not setting out to
protect Old Glory; we are setting out to protect old politicians. That
is what this is about.
Sadly, Republican leaders are forcing this debate so they can accuse
some who disagree with them of being unpatriotic and un-American. You
heard it last week, didn't you? Republicans came to the floor and
accused Democrats who wanted to start the withdrawal of troops from
Iraq of wanting to cut and run. Cut and run, cut and run, over and over
again, from the Republican side--this chest-thumping, bring them on, we
are loyal to the President at any cost, rhetoric coming forth every
single day on the Republican side of the aisle. Then GEN Casey pulled
the rug out from under them. And by the end of the week, he took the
same position as the Democrats had with their amendment before the U.S.
Senate.
So this week the Republicans are going to come back and say that
those who won't vote for this flag-burning amendment are somehow
unpatriotic and un-American. I think the American people are a lot
smarter than that. I think they are going to see this for the political
ploy that it is.
I don't say this very often, but when it comes to changing our
Constitution to ban flag-burning, I agree with Supreme Court Justice
Antonin Scalia. Justice Scalia, arguably the most conservative member
of the Supreme Court, was part of the majority who voted to strike down
the statute that was previously written to ban flag-burning in 1989. He
said in speeches that it made him ``furious'' not to be able to put
that defendant who burned that flag in that case--whom he described as
a ``bearded, scruffy, sandal-wearing guy burning the American flag''--
in jail. But in Justice Scalia's words:
I was handcuffed. I couldn't help it. That is my
understanding of the first amendment. I can't do the nasty
things I'd like to do.
Like Justice Scalia and most Americans, I am deeply and personally
offended by the desecration of our flag. I think burning the flag is a
form of protest that is crude and contemptible. But being contemptible
and stupid is not unconstitutional in America.
I think we should show a little humility around here when it comes to
changing the Constitution. So many of my colleagues are anxious to take
a roller to a Rembrandt. Since the adoption of the Bill of Rights,
Members of Congress have proposed more than 11,000 amendments to our
Constitution. We have passed only 17, and one of these was Prohibition,
which we later learned was a political mistake and was repealed.
Why are amendments to the Constitution so rare? Because throughout
our history, Congress has always understood that we should change our
[[Page S6485]]
Constitution only under the most extraordinary circumstances. We should
amend it only when it is absolutely essential. It is a sacred document.
It is part of what defines us as America. To reach in and change Thomas
Jefferson's Bill of Rights on the floor of the U.S. Senate should be an
historic moment and every Member should take pause before they do it.
The flag-burning amendment fails the test. As the Washington Post put
it recently in an editorial:
Members of Congress who would protect the flag thus do it
far greater damage than a few miscreants with matches.
That is not just my opinion; it is shared by a lot of people. Colin
Powell, a man who has given his life to America, in military service at
the highest levels, here is what he said about this flag-burning
amendment:
I understand how strongly so many of my fellow veterans and
citizens feel about the flag and I understand the powerful
sentiment of State legislatures for such an amendment. I feel
the same sense of outrage. But I step back from amending the
Constitution to relieve that outrage. The First Amendment
exists to ensure that freedom of speech and expression
applies not just to that with which we agree or disagree, but
also that which we find outrageous. I would not amend that
great shield of democracy to hammer a few miscreants. The
flag will be flying proudly long after they have slunk away.
General Colin L. Powell.
Steve Chapman writes for the Chicago Tribune, and here is what he
said:
If there is anything American conservatives should revere,
it's the U.S. Constitution, a timeless work of political
genius. Having provided the foundation for one of the freest
societies and most durable democracies on Earth, it shouldn't
be altered lightly or often.
Charles Fried is a leading conservative scholar who served as
Solicitor General of the United States under President Reagan. Here is
what he said:
The First Amendment to the United States Constitution has
served us since 1791 through wars, including a civil war, and
crises of every sort without the need for amendment. It is an
icon of our freedom. To amend it now comes close to
vandalism.
These are the words of Charles Fried:
Totalitarian countries fear dissenters sufficiently to
suppress their protests. A free Nation relies on having the
better argument.
Incidentally, if we were to pass this constitutional amendment, which
Senator Hatch and others have brought to the floor, we would join ranks
with only three other nations on Earth that ban flag-burning, and that
roster of nations include the following: Cuba, China, and Iran. Oh,
yes, and Iraq under Saddam Hussein.
If this amendment were to pass, it would be the first time since
1978--almost 30 years--that both Houses of Congress passed a
constitutional amendment.
I recently read a book review in the New York Times. It was about
another subject, but there was a quote in there that I think is so
apropos. Francis Lieber was a 19th century political philosopher and
author of America's modern laws of war. He cautioned against weakening
our Constitution during times of war when inflamed passions can make
rash solutions seem reasonable. Listen to what Francis Lieber said, and
reflect on what we are doing:
It requires the power of the Almighty and a whole century
to grow an oak tree; but only a pair of arms, an ax and an
hour or two to cut it down.
The Bill of Rights has served this Nation since 1791, and with one
swift blow of this ax, we are going to chop into the first amendment.
I can understand why veterans, in particular, are offended by the
desecration of the flag. They went to battle and risked their lives
under the red, white, and blue. The current leadership of the American
Legion, whom I respect very much and work with on many veterans'
issues, supports this amendment. I respect them for their service to
America and our national security. But, with all due respect, there are
many veterans who disagree.
Keith Kreul is an Army veteran and past national commander of the
American Legion. Listen to what he wrote in an editorial for the Leader
Newspapers in Lyndhurst, NJ when the Congress considered this amendment
in 1998. Here is what he said.
Our Nation was not founded on devotion to symbolic idols,
but on principles, beliefs and ideals expressed in the
Constitution and its Bill of Rights. American veterans who
protected our banner in battle have not done so to protect a
``golden calf.'' Instead, they carried the banner forward
with reverence for what it represents--our beliefs and
freedom for all. Therein lies the beauty of our flag.
So says the former National Commander of the American Legion, Keith
Kreul.
Robert Williams was a bomber pilot in World War II with the legendary
332nd Fighter Group, better known as the Tuskegee Airmen. Listen to
what he wrote in the Baltimore Afro-American newspaper when this
amendment came up a few years ago:
Our unit would never have existed had it not been for the
long tradition of--and respect for--lawful protest in our
country. . . .
This Tuskegee Airman wrote:
I cringe when I see Congress preparing to pass a
constitutional amendment that would rewrite the First
Amendment--for the first time ever--to ban a form of protest.
It is particularly hard for me as an American war veteran
[Mr. Williams said] to see this action taken in the name of
patriotism.
For while we as a country view our flag as the very essence
of patriotism, it is in reality a symbol of that spirit. And
if the proposed flag desecration amendment wins final
approval, our flag will become a symbol without substance.
Mr. Williams went on to say:
Don't get me wrong. No one endorses the idea of burning the
flag or desecrating it in any way. It is to me a very
repugnant concept. But I find more threatening the idea that
we would change the Constitution every time some American
came up with a new repugnant way to protest.
And then there is John Glenn. What can you say about John Glenn, a
fighter pilot in two wars, one of our premier astronauts, a great
United States Senator, a marine with such a great record of public
service? He risked his life so many times for this country. He flew
under that flag so many times. Here is what he wrote in testimony to
the Senate Judiciary Committee in 2004:
Like most Americans I have very, very strong feelings about
our flag. Like most Americans, I have a gut reaction in
opposition to anyone who would dare to demean, deface, or
desecrate the flag of the United States. But also, like most
Americans, I am concerned about any effort to amend the
Constitution and the Bill of Rights.
I have watched as those who expressed qualms or doubts or
reservations about this amendment run the risk of being
smeared, of being labeled as unpatriotic or as a friend of
flag burners. . . . Many of us feel unconformable talking
about issues that involve such private and personal emotions.
We do not wear our emotions on our sleeves, especially when
it comes to how we feel about the flag and about patriotism.
We do not parade around those things that are sacred to us.
John Glenn said he was speaking out against the flag burning
amendment because ``it would be a hollow victory indeed if we preserved
the symbol of our freedoms by chipping away at fundamental freedoms
themselves.
He went on to say:
The flag is the Nation's most powerful and emotional
symbol. It is our most sacred symbol. And it is our most
revered symbol. But it is a symbol. It symbolizes the
freedoms that we have in this country, but it is not the
freedoms themselves.
He is right. Our freedoms are dearer than their symbols. S.J. Res. 12
is overly vague and filled with potential loopholes. What do the words
``flag desecration'' mean? If someone took a flag and wrote on it, is
that desecration? Here is an instance where the President of the United
States, when he was walking through a ropeline, was handed an American
flag and asked to sign it. I do not believe that is desecration of the
flag. I don't think anyone would argue that question. But this
amendment is not clear as to where you would draw a line. As gifted as
my colleagues may be who have brought this amendment to the floor, I am
afraid the language they brought is not going to stand the test of
time. Will we prosecute people for wearing star-spangled bathing suits
at the beach? How about a T-shirt that fashions the flag into a peace
sign? Would we put people into jail for sitting on an American flag
blanket at a Fourth of July picnic? Wiping their mouth with a flag
napkin?
Instead of signing a name on a flag, what if someone wrote ``death to
America''? Is that now desecration? The symbol of the American flag is
used to sell everything from cars to cupcakes. Should those ads be
illegal?
One of the most haunting images from Hurricane Katrina was the photo
of a frail, elderly African-American woman waiting for help with a
blanket that looked like an American flag wrapped on her shoulders. Is
that desecration? I don't think so.
[[Page S6486]]
Would we outlaw only future acts? Could a person be arrested for
possessing a flag quilt that has been in the family for generations?
Don't the police in America have more important things to do? How many
hours would future Congresses spend trying to define what this
amendment says?
There is a better way. A number of us are coming together on a
bipartisan basis to propose a criminal statute that makes it clear that
when someone damages the U.S. flag with intent to incite or produce
imminent violence, when someone burns a flag to intentionally threaten
or intimidate a person, when someone steals a flag that belongs to the
Federal Government and destroys it, when someone steals a flag and
destroys it on Federal land--all of these are specific acts that we
would criminalize. That does not rise to the level of a constitutional
amendment, but it says that we believe, on a bipartisan basis, the flag
should be treated differently. The flag does deserve special respect.
This narrowly tailored solution corrects the mistakes of the statute
Congress passed in 1989 and the Supreme Court struck down a year later.
That statute was too broad. This new proposal is specific and clear.
One of the celebrity supporters of the flag amendment is Rick Monday.
I bring him up because he was a Chicago Cubs outfielder, and I am
honored to represent the State of Illinois where there are many Cubs
fans. He played for the Cubs from 1972 to 1976 and was well known and
well liked.
Everyone respects Rick Monday's act of courage 30 years ago at a
baseball game at Dodgers Stadium when he ran after two people who were
about to light an American flag on fire. He grabbed the flag away just
as it was about to be burned.
But I agree with an editorial published last week in the Chicago Sun-
Times, which said the following:
Our appreciation of [Rick] Monday was not diminished by his
appearance last week at a rally for the proposed flag
desecration amendment--an event at which he exhibited the
rescued flag, which was presented to him by the Dodgers. But
however heartfelt this gesture was, it was wrongheaded in
lending support to a manufactured cause with no real value
except a political one, the equivalent of throwing red meat
on the table.
Tommy Lasorda is a great baseball manager, and I follow baseball. The
last time this amendment came up, Senator Hatch brought Tommy Lasorda
in to testify. Tommy Lasorda recalled the incident; he was the manager
of the Dodgers on the day it occurred, and Tommy Lasorda was emotional
about these people trying to burn the flag and Rick Monday running to
its rescue.
I asked Tommy Lasorda this question: Did they televise those two guys
jumping out of the stands and burning the flag on the field?
He said, ``No.'' I said, ``Why not?''
``You televise that sort of thing,'' Tommy Lasorda said, ``and it
encourages it.''
So what would be the effect of calling for a constitutional amendment
on the floor of the Senate to ban an act that occurs so rarely in the
United States? My fear is that it would only encourage people to
consider that sort of thing. We would put a spotlight on it instead of
saying it is only happening two or three times a year, it certainly is
not a national epidemic deserving of a constitutional amendment.
This flag amendment is all about the next election so that people who
vote against it can be labeled as unpatriotic and un-American. There
are better ways to show our commitment to our Constitution and our flag
and our veterans. How about health care for our veterans? How about
making sure we keep our promises to those who return from battle, that
we keep our promises to them that they be given medical care and
housing and the education they were promised? I wish the people pushing
this flag desecration amendment so hard would spend their energy on
issues far more tangible to our Nation's veterans, such as health care.
Earlier this year, the President submitted his budget. He proposed to
shortchange our veterans when it comes to their health. The President's
budget would force more than 50,000 Illinois veterans, many of whom are
low income, to pay more for their health care. Their monthly
prescription drug costs would double.
The American Legion, one of the most zealous advocates for the flag
burning amendment, recently issued an action alert letter and said they
are very concerned about the underfunding of the VA. I salute the
American Legion. I hope they will channel more energy into helping our
veterans than into changing our Bill of Rights.
The commander in chief of the Veterans of Foreign Wars, Jim Mueller,
said this about President Bush's fiscal year 2007 budget:
The proposal to increase military retiree healthcare
premiums is absolutely unacceptable. . . .I urge Congress to
ensure that those serving in uniform and those who served
faithfully for many years are not forgotten in the budget
process.
Hats off to the VFW and the American Legion for speaking out for
veterans. Channel that energy into making sure that veterans get a fair
shake instead of watching a week go by on the floor of the Senate where
we debate this unnecessary constitutional amendment.
Giving the veterans a flag amendment is not substitute for health
care.
Flag burning does disturb some veterans. Another way of showing
respect for our veterans is to protect the sanctity of their funerals.
I am going to be offering an amendment tomorrow to do just that.
By now, many Americans have heard of the disgraceful and hateful
actions of one man named Fred Phelps. Mr. Phelps calls himself a
minister, a religious minister. But his gospel seems to begin and end
with hatred and intolerance. About 15 years ago, this Mr. Phelps and a
small band of his followers began picketing funerals of people who have
died of HIV/AIDS. They have reportedly picketed 22,000 funerals.
When their vile acts of hatred and bigotry stop generating the
publicity they seek, they looked for new targets. They began to stage
protests at the funerals of our brave young men and women who have
given their lives fighting for America in Iraq and Afghanistan. In the
past year, these so-called Christians, these hate-mongers, who would
use the Bible as their shield, have protested at more than 100 military
funerals.
They claim the deaths of American Armed Forces, if you can believe
this--they claim the deaths of American soldiers are God's punishment
for Americans' tolerance of gays and lesbians. That is an affront to
civilized behavior. There may well be a special place in the afterlife
for people like Mr. Phelps, but there is no place for his brand of
hatred at veterans' funerals in this life.
Last month, Congress passed and the President signed into law the
Respect for America's Fallen Heroes Act, which prohibits their
demonstrations at or around our national cemeteries. Tomorrow, I am
going to offer an amendment to this measure--a statutory amendment not
a constitutional amendment--to expand that previous law so it applies
to the funerals of all veterans, whether they are buried in a national
cemetery, a church cemetery, or anywhere else.
My amendment will also prohibit protests at funeral homes, houses of
worship, and other locations where deceased veterans are honored and
buried. We can honor our veterans and protect their loved ones from
this intrusion on their grief without weakening our Constitution and
the freedoms for which veterans fought.
I hope my colleagues join me. I will offer my proposal as an
amendment to the Bennett/Clinton amendment to this underlying bill so
we can, in one amendment, criminalize the burning and defacing of the
flag and also protect military funerals from Mr. Phelps and others like
him who would bring great disrespect at the funerals of our soldiers
who deserve the highest respect.
I have been very careful in writing this amendment to make sure it
follows the previous law, so there will be no successful constitutional
challenges in that regard.
I am also considering an amendment which I think is long overdue. It
would ban the consideration of constitutional amendments in election
years. We have seen too darned much politicking with the Constitution
in this Chamber this month.
James Madison wrote in Federalist 49 in 1788 that the U.S.
Constitution should be amended only on ``great and extraordinary
occasions.'' It appears now that biennial elections are great
[[Page S6487]]
and extraordinary occasions in the minds of the Republican leadership
of the Senate. Madison warned of the ``danger of disturbing the public
tranquility by interesting too strongly the public passions'' through
frequent constitutional amendments. Over 11,000 proposed constitutional
amendments have been introduced in Congress, including 66 during the
current 109th Congress.
Over the past three decades, the number of proposed constitutional
amendments considered on the Senate floor has increased dramatically.
When in doubt here, amend the Constitution: from two amendments between
1973 and 1983, to five amendments between 1983 and 1993, nine
amendments between 1993 and 2003, to four already in this 3-year cycle
since 2003.
There appears to be a trend toward considering constitutional
amendments on the Senate floor during even-numbered years which,
coincidentally, happen to be election years.
Constitutional amendments should be considered by Congress without
politicization. We should consider these for the serious suggestions
that they are, instead of electioneering, and that is what has happened
too often on the floor of the Senate.
Americans' reverence for the flag does not have to be coerced or
policed. It is something we feel in our bones. When it comes to the
Bill of Rights, I trust Thomas Jefferson a lot more than Karl Rove. I
believe the words of Thomas Jefferson have endured. I believe the
political tactics of Mr. Rove and the Republican Party will not endure
when it comes to using the Constitution for political purposes.
Remember what happened after September 11? Remember all the American
flags that suddenly appeared? Stores sold out of flags. In a time of
national trauma and grief, these flags were our comfort and our
strength. They were a visible symbol of our unity and our faith that
America would endure. Our Nation had suffered a terrible loss, but the
American flag waved proudly.
Sadly, in the 5 years since then, with our Nation at war, there are
those who seek to pit us one against the other for political reasons.
Now they want to use our flag as a wedge issue in this election.
This political effort to ``brand'' the flag as belonging to one party
causes some to feel sad and disillusioned. Bill Moyers, the journalist,
thinker, and former Presidential adviser, was among many who felt
troubled by the effort to redefine respect for the flag as a partisan
issue.
Last year, Bill Moyers made a speech about freedom in America in
which he talked about the flag. He offered some profound words of
wisdom that are worth reflecting upon today. He said the following:
I wore my flag tonight. First time. Until now I haven't
thought it necessary to display a little metallic icon of
patriotism for everyone to see. It was enough to vote, pay my
taxes, perform my civic duties, speak my mind, and do my best
to raise our kids to be good Americans.
Sometimes I would offer a small prayer of gratitude that I
had been born in a country whose institutions sustained me,
whose armed forces protected me, and whose ideals inspired
me; I offered my heart's affections in return. It no more
occurred to me to flaunt the flag on my chest than it did to
pin my mother's picture on my lapel to prove her son's love.
Mother knew where I stood; so does my country. I even tuck a
valentine in my tax returns on April 15.
So what's this doing here? Well, I put it on to take it
back. The flag's been hijacked and turned into a logo--the
trademark of a monopoly on patriotism. On those Sunday
morning talk shows, official chests appear adorned with the
flag as if it is the good housekeeping seal of approval.
During the State of the Union, did you notice Bush and Cheney
wearing the flag? How come? No administration's patriotism is
ever in doubt, only its policies. And the flag bestows no
immunity from error. When I see flags sprouting on official
lapels, I think of the time in China when I saw Mao's little
red book on every official's desk, omnipresent and unread.
I think Bill Moyers had it right. The flag amendment should not be
used as a proxy for patriotism.
I respect our flag as the symbol of the freedom granted to us by the
Bill of Rights, and it is painful for me to see it burned or otherwise
defiled. I strongly believe that flag burning is an insensitive and
shameful act, but I believe that it would be destructive to amend the
Bill of Rights for the first time in our nation's history and restrict
the precious freedoms ensured by the first amendment, simply to address
an act which occurs in America only a few times a year.
The real test of our belief in the Bill of Rights--the real test of
our patriotism--is when we rise in defense of the rights of those whose
views we disagree with or even despise. The right to free speech is a
bedrock of our democracy. Amending our Constitution's Bill of Rights
would be a strike against the very freedoms for which the flag stands
and for which so many Americans have given their lives.
Mr. GRASSLEY. Mr. President, I rise today in support of S.J. Res. 12,
the proposal to amend our Constitution to return to Congress the
authority to legislate on the issue of flag desecration. Like my
colleagues, I do not take lightly the concept of amending our
Constitution, but in this area, a runaway judiciary has left us no
choice.
No other emblem is as synonymous or representative of our Nation as
the American flag. No other image depicts as readily the freedoms and
ideals our men and women in uniform have battled for. Americans proudly
fly our flag to demonstrate their love for our country and for their
neighbors. Schoolchildren have been pledging allegiance to it every
morning for decades. The American flag has been flown in times of
battle, of victory, and of national tragedy. It is the most recognized
symbol of freedom and democracy in the world.
Our flag should be protected from those who would desecrate it and
demonstrate a basic lack of respect for our national heritage. At the
very least, decisions about whether and how to protect our flag should
be made by the legislative branch, not the unelected judiciary.
The proposal before us today would not immediately ban flag
desecration, as its opponents would lead you to believe. Rather, it
would return the power to legislate on the issue to Congress and the
States, where it belongs. This constitutional amendment will restore
the legislative authority to protect our flag to the legislative
branch.
I will be voting in favor of this amendment, and I urge my colleagues
to join me in doing the same.
I yield the floor.
The PRESIDING OFFICER (Mr. Cornyn). The assistant majority leader.
____________________