[House Report 107-115]
[From the U.S. Government Publishing Office]
107th Congress Report
HOUSE OF REPRESENTATIVES
1st Session 107-115
======================================================================
CONSTITUTIONAL AMENDMENT AUTHORIZING CONGRESS TO PROHIBIT THE PHYSICAL
DESECRATION OF THE FLAG OF THE UNITED STATES
_______
June 27, 2001.--Referred to the House Calendar and ordered to be
printed
_______
Mr. Sensenbrenner, from the Committee on the Judiciary, submitted the
following
R E P O R T
together with
DISSENTING VIEWS
[To accompany H.J. Res. 36]
[Including cost estimate of the Congressional Budget Office]
The Committee on the Judiciary, to whom was referred the
joint resolution (H.J. Res. 36) proposing an amendment to the
Constitution of the United States authorizing the Congress to
prohibit the physical desecration of the flag of the United
States, having considered the same, reports favorably thereon
without amendment and recommends that the joint resolution do
pass.
CONTENTS
Page
Purpose and Summary.............................................. 2
Background and Need for the Legislation.......................... 2
Hearings......................................................... 6
Committee Consideration.......................................... 6
Vote of the Committee............................................ 7
Committee Oversight Findings..................................... 8
Performance Goals and Objectives................................. 8
New Budget Authority and Tax Expenditures........................ 8
Congressional Budget Office Cost Estimate........................ 9
Constitutional Authority Statement............................... 10
Section-by-Section Analysis and Discussion....................... 10
Markup Transcript................................................ 11
Dissenting Views................................................. 39
Purpose and Summary
H.J. Res. 36 proposes to amend the United States
Constitution to allow Congress to prohibit the physical
desecration of the flag of the United States. The proposed
amendment reads: ``The Congress shall have the power to
prohibit the physical desecration of the flag of the United
States.'' The amendment itself does not prohibit flag
desecration. It merely empowers Congress to enact legislation
to prohibit the physical desecration of the flag and
establishes boundaries within which it may legislate. Prior to
the United States Supreme Court decision in Texas v.
Johnson,\1\ forty-eight states and the Federal Government had
laws prohibiting desecration of the flag. The purpose of the
proposed amendment is to restore to the Congress the power to
protect the flag.
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\1\ 491 U.S. 397 (1989).
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Background and Need for the Legislation
Since 1994, there have been 86 reports of incidents
involving flag desecration that have occurred in 29 states, the
District of Columbia, and Puerto Rico. Since the United States
Supreme Court's 1989 ruling in Texas v. Johnson,\2\ in which
the Court held that burning an American flag as part of a
political demonstration was expressive conduct protected by the
First Amendment to the U.S. Constitution, neither the States,
nor the Federal Government, have been able to prohibit the
desecration of the American flag.
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\2\ Id.
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Gregory Johnson was convicted of desecrating a flag in
violation of Texas law after publicly burning a stolen American
flag in a protest outside of the 1984 Republican National
Convention in Dallas, Texas.\3\ The Texas law prohibited the
intentional desecration of a national flag in a manner in which
``the actor knows will seriously offend one or more persons
likely to observe or discover his action.'' \4\ His conviction
was upheld by the Court of Appeals for the Fifth District of
Texas at Dallas, but reversed by the Texas Court of Criminal
Appeals. The United States Supreme Court, in a 5 to 4 vote,
affirmed the Court of Criminal Appeals conclusion that
Johnson's conviction was inconsistent with the First Amendment
because his actions constituted ``symbolic free expression.''
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\3\ Johnson, 491 U.S. at 399-400.
\4\ Tex. Penal Code Ann. Section 42.09(a)(3), Desecration of a
Venerated Object, provided as follows:
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(a) A person commits an offense if he intentionally or knowingly
desecrates:
(1) a public monument;
(2) a place of worship or burial; or
(3) a State or national flag.
(b) For purposes of this section, ``desecrate'' means deface, damage,
or otherwise physically mistreat in a way that the actor knows will
seriously offend one or more persons likely to observe or discover his
action.
(c) An offense under this section is a Class A misdemeanor.
Justice Rehnquist, in a dissenting opinion in which
Justices O'Connor and White joined,\5\ noted the unique history
of the American flag:
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\5\ Justice Stevens filed a separate dissenting opinion.
The American flag, then, throughout more than 200 years
of our history, has come to be the visible symbol
embodying our Nation. It does not represent the views
of any particular political party, and it does not
represent any particular political philosophy. The flag
is not simply another ``idea'' or ``point of view''
competing for recognition in the marketplace of ideas.
Millions and millions of Americans regard it with an
almost mystical reverence regardless of what sort of
social, political, or philosophical beliefs they may
have. I cannot agree that the First Amendment
invalidates the Act of Congress, and the laws of 48 of
the 50 States, which make criminal the public burning
of the flag.\6\
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\6\ Johnson, 491 U.S. at 429 (emphasis added).
Justice Rehnquist also found persuasive the fact that Chief
Justice Earl Warren, and Justices Black and Fortas were also of
the opinion that the States and the Federal Government had the
power to protect the flag from desecration and disgrace.
In response to the Johnson decision, in September 1989,
Congress passed the ``Flag Protection Act of 1989'' \7\ by a
vote of a 380 to 38. The Act amended the Federal flag statute,
18 U.S.C. Sec. 700, attempting to make it ``content-neutral''
so that it would pass constitutional muster. As stated in the
House Judiciary Committee report, ``the amended statute focuses
exclusively on the conduct of the actor, irrespective of any
expressive message he or she might be intending to convey.''
\8\
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\7\ H.R. 2978, 101st Cong. (1989).
\8\ Flag Protection Act of 1989 H. Rep. No. 101-231, at 2 (1989).
The Act became law without the President's signature on October 28,
1989 (Pub. L. No. 101-131).
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On June 11, 1990, in U.S. v. Eichman,\9\ the United States
Supreme Court, in another 5 to 4 decision, struck down the
recently-enacted ``Flag Protection Act of 1989,'' ruling that
it infringed on expressive conduct protected by the First
Amendment. Although the Government conceded that flag burning
constituted expressive conduct, it claimed that flag burning,
like obscenity or ``fighting words,'' was not fully protected
by the First Amendment. The Government also argued the Act was
constitutional because, unlike the Texas statute struck down in
Johnson, the Act was ``content-neutral'' and simply sought to
protect the physical integrity of the flag rather than to
suppress disagreeable communication.
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\9\ 496 U.S. 310 (1990).
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Justice Brennan, writing for the majority, rejected the
Government's argument, noting that:
Although the Flag Protection Act contains no explicit
content-based limitation on the scope of prohibited
conduct, it is nevertheless clear that the Government's
asserted interest is ``related 'to the suppression of
free expression,''' 491 U.S., at 410, 109 S.Ct., at
2543, and concerned with the content of such
expression. . . . But the mere destruction or
disfigurement of a particular physical manifestation of
the symbol, without more, does not diminish or
otherwise affect the symbol itself in any way. . . .
[T]he Government's desire to preserve the flag as a
symbol for certain national ideals is implicated ``only
when a person's treatment of the flag communicates [a]
message'' to others that is inconsistent with those
ideals.\10\
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\10\ Id. at 315-316.
Justice Stevens wrote a dissenting opinion in which Chief
Justice Rehnquist, Justice White, and Justice O'Connor joined.
He expressed agreement with the proposition expressed by the
majority which stated that, ``the Government may not prohibit
the expression of an idea simply because society finds the idea
itself offensive or disagreeable.'' \11\ He went on, however,
to note that methods of expression may be prohibited under a
number of circumstances and set forth the following standard:
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\11\ Id. at 319.
[I]f (a) the prohibition is supported by a legitimate
societal interest that is unrelated to suppression of
the ideas the speaker desires to express; (b) the
prohibition does not entail any interference with the
speaker's freedom to express those ideas by other
means; and (c) the interest in allowing the speaker
complete freedom of choice among alternative methods of
expression is less important than the societal interest
supporting the prohibition.\12\
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\12\ Id.
Justice Stevens believed that the statute satisfied each of
these concerns and thus should have withstood constitutional
scrutiny.
Opponents of H.J. Res. 36 have argued that it will
undermine First Amendment protections; however, the prohibition
of flag desecration is, in fact, consistent with the letter and
the spirit of the First Amendment. Under United States Supreme
Court precedent, certain ``expressive'' acts are entitled to
First Amendment protection based upon the principle that the
Government may not prohibit the expression of an idea simply
because society finds the idea itself offensive or
disagreeable.\13\ Still, not all activity with an expressive
component is currently afforded First Amendment protection. The
Court has said that certain modes of expression may be
prohibited if: 1) the prohibition is supported by a legitimate
government interest that is unrelated to suppression of the
ideas the speaker desires to express; 2) the prohibition does
not interfere with the speaker's freedom to express those ideas
by other means; and 3) the interest in allowing the speaker
complete freedom among all possible modes of expression is less
important than the societal interest supporting the
prohibition.\14\
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\13\ See Texas v. Johnson, 491 U.S. 397, 414 (1989).
\14\ See U.S. v. O'Brien, 391 U.S. 367, 377 (1968).
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Applying these principles in O'Brien, the United States
Supreme Court upheld a statute prohibiting the destruction of
draft cards against a First Amendment challenge. The Court
stated that the prohibition served a legitimate purpose--
facilitating draft induction in time of national crisis--that
was unrelated to the suppression of the speaker's ideas because
the law prohibited the conduct regardless of the message sought
to be conveyed by destruction of the draft card. The Court
further held that the prohibition did not preclude other forms
of expression or protest and that the smooth functioning of the
Selective Service System outweighed the need to extend First
Amendment protections to the act itself.\15\
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\15\ See id. at 381.
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In Johnson, the Court rejected Texas' attempt to prohibit
flag desecration because, the Court concluded, Texas' interest
in how one treats the flag will only arise ``when a person's
treatment of the flag communicates some message,'' making the
prohibition ``related `to the suppression of free expression.'
'' \16\ Similar to the O'Brien ruling, however, the
government's interest in preserving the symbolic value of the
American flag is present regardless of the message sought to be
conveyed by any particular act of flag desecration. H.J. Res.
36 does not seek to express approval of, nor does it seek to
suppress, any particular content of speech or viewpoint.
Rather, it seeks to remove the physical flag as a means of
communication, regardless of the content or viewpoint of one's
speech. Alternative means of expressing ideas are available to
speakers, from various points of view on all subjects, who
would desecrate a flag in order to express their message. Such
was the status quo in 48 states and lands under Federal
jurisdiction prior to the Johnson and Eichman rulings, during
which time open debate flourished throughout America's history.
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\16\ Johnson, 491 U.S. at 410.
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The Eichman dissent provides an instructive analysis of why
Congressional action prohibiting flag desecration is consistent
with the First Amendment. In that dissent, Justice Stevens,
joined by Chief Justice Rehnquist, and Justices White and
O'Connor, began his analysis stating the well-accepted First
Amendment principle that ``the Government may not prohibit the
expression of an idea simply because society finds the idea
itself offensive or disagreeable.'' \17\ However, Stevens
concluded that the Federal Government has a legitimate interest
in protecting the intrinsic value of the American flag because
it, ``in times of national crisis, inspires and motivates the
average citizen to make personal sacrifices in order to achieve
societal goals of overriding importance,'' and, ``at all times
it serves as a reminder of the paramount importance of pursuing
the ideas that characterize our society.'' \18\ Speaking of the
1989 Act, Stevens continued:
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\17\ U.S. v. Eichman, 496 U.S. 310, 319 (1990).
\18\ Id.
It is, moreover, equally clear that the prohibition
does not entail any interference with the speaker's
freedom to express his or her ideas by other means. It
may well be true that other means of expression may be
less effective in drawing attention to those ideas, but
that is not itself a sufficient reason for immunizing
flag burning. Presumably a gigantic fireworks display
or a parade of nude models in a public park might draw
even more attention to a controversial message, but
such methods of expression are nevertheless subject to
regulation.\19\
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\19\ Id. at 322.
Stevens concluded that the societal interest in preserving
the symbolic value of the flag outweighs the interest of an
individual who believes that desecrating the flag will be the
most effective method of expressing his or her views. Although
the value of the individual's choice is ``unquestionably a
matter of great importance,'' tolerance of flag burning,
concluded Stevens, will ``tarnish that value.'' \20\
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\20\ Id.
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The belief that the prohibition of flag desecration is
consistent with the First Amendment had gone unquestioned prior
to the Johnson ruling. Former Chief Justice Earl Warren in
Street v. New York, stated: ``I believe that the States and the
Federal Government do have power to protect the flag from acts
of desecration and disgrace.'' \21\ In the same case, Justice
Hugo Black, a zealous proponent of freedom of speech wrote:
``It passes my belief that anything in the Federal Constitution
bars . . . making the deliberate burning of the American flag
an offense.'' \22\ Again, in Street, Justice Abe Fortas stated
that, ``[t]he States and the Federal Government have the power
to protect the flag from acts of desecration.'' \23\ He
continued, ``[T]he flag is a special kind of personality. Its
use is traditionally and universally subject to special rules
and regulations.'' \24\ It should also be mentioned that, on
numerous occasions, the Supreme Court has upheld government
regulation of pure speech. For example, speech that is likely
to incite an immediate, violent response,\25\ obscenity,\26\
and libel \27\ are not protected under the First Amendment.
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\21\ 394 U.S. 576, 605 (1969).
\22\ Id. at 610.
\23\ Id. at 615.
\24\ Id. at 616.
\25\ Chaplinsky v. New Hampshire, 315 U.S. 568 (1942).
\26\ Miller v. California, 413 U.S. 15 (1973).
\27\ New York Times, Co. v. Sullivan, 376 U.S. 254 (1964).
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H.J. Res. 36 furthers the legitimate interest of the
Federal Government in protecting the American flag, and it does
not interfere with a speaker's freedom to express his or her
ideas by other means. Because of the Johnson and Eichman
decisions, the only remedy that Congress may pursue in order to
protect the American flag from acts of desecration is a
constitutional amendment. Since the Eichman ruling, forty-nine
states have passed resolutions calling on Congress to pass the
amendment and send it back to the states for ratification.\28\
H.J. Res. 36 would restore the authority of Congress to
prohibit the physical desecration of the flag. The amendment
itself does not prohibit flag desecration; it merely empowers
Congress to enact legislation to prohibit the physical
desecration of the flag and establishes boundaries within which
it may legislate. Work on a statute will come at a later date,
after the amendment is ratified by three-fourths of the States.
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\28\ The fiftieth State, Vermont, passed the resolution in both
Houses, but in separate sessions.
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Hearings
No hearings were held on H.J. Res. 36. However, hearings
were held on identical language proposed in the 105th and 106th
Congress.\29\
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\29\ Flag Desecration Constitutional Amendment: Hearing on H.J.
Res. 54 Before the Subcomm. on the Constitution, House Comm. on the
Judiciary, 105th Cong. (1997). Flag Burning Constitutional Amendment:
Hearing on H.J. Res. 33 Before the Subcomm. on the Constitution, House
Comm. on the Judiciary, 106th Cong. (1999).
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Committee Consideration
On Thursday, May 24, 2001, the Subcommittee on the
Constitution met in open session and ordered favorably reported
the bill, H. J. Res. 36, by a vote of 5 to 3, a quorum being
present. On Wednesday, June 20, 2001, the Committee met in open
session and ordered favorably reported the bill, H. J. Res. 36
without amendment by a recorded vote of 15 to 11, a quorum
being present.
Vote of the Committee
1. An amendment was offered by Mr. Watt to add the phrase
``Not inconsistent with the first article of amendment to this
Constitution,'' changing H.J. Res. 36 to read: ``Not
inconsistent with the first article of amendment to this
Constitution, the Congress shall have the power to prohibit the
physical desecration of the flag of the United States.'' The
amendment was defeated by rollcall vote of 9 to 13.
ROLLCALL NO. 1
----------------------------------------------------------------------------------------------------------------
Ayes Nays Present
----------------------------------------------------------------------------------------------------------------
Mr. Hyde........................................................
Mr. Gekas....................................................... X
Mr. Coble....................................................... X
Mr. Smith (Texas)...............................................
Mr. Gallegly....................................................
Mr. Goodlatte................................................... X
Mr. Chabot...................................................... X
Mr. Barr........................................................ X
Mr. Jenkins..................................................... X
Mr. Hutchinson..................................................
Mr. Cannon...................................................... X
Mr. Graham......................................................
Mr. Bachus......................................................
Mr. Scarborough.................................................
Mr. Hostettler.................................................. X
Mr. Green....................................................... X
Mr. Keller...................................................... X
Mr. Issa........................................................ X
Ms. Hart........................................................ X
Mr. Flake.......................................................
Mr. Conyers.....................................................
Mr. Frank....................................................... X
Mr. Berman......................................................
Mr. Boucher.....................................................
Mr. Nadler...................................................... X
Mr. Scott....................................................... X
Mr. Watt........................................................ X
Ms. Lofgren..................................................... X
Ms. Jackson Lee.................................................
Ms. Waters...................................................... X
Mr. Meehan......................................................
Mr. Delahunt....................................................
Mr. Wexler...................................................... X
Ms. Baldwin..................................................... X
Mr. Weiner...................................................... X
Mr. Schiff......................................................
Mr. Sensenbrenner, Chairman..................................... X
-----------------------------------------------
Total....................................................... 9 13
----------------------------------------------------------------------------------------------------------------
2. An amendment was offered by Mr. Scott to delete the word
``desecration'' and insert in its place the word ``burning.''
The amendment was defeated by a voice vote.
3. Final Passage. The motion to report favorably the joint
resolution, H.J. Res. 36, was agreed to by a rollcall vote of
15 to 11.
ROLLCALL NO. 2
----------------------------------------------------------------------------------------------------------------
Ayes Nays Present
----------------------------------------------------------------------------------------------------------------
Mr. Hyde........................................................
Mr. Gekas....................................................... X
Mr. Coble....................................................... X
Mr. Smith (Texas)...............................................
Mr. Gallegly.................................................... X
Mr. Goodlatte................................................... X
Mr. Chabot...................................................... X
Mr. Barr........................................................ X
Mr. Jenkins..................................................... X
Mr. Hutchinson..................................................
Mr. Cannon...................................................... X
Mr. Graham...................................................... X
Mr. Bachus......................................................
Mr. Scarborough.................................................
Mr. Hostettler.................................................. X
Mr. Green....................................................... X
Mr. Keller...................................................... X
Mr. Issa........................................................ X
Ms. Hart........................................................ X
Mr. Flake.......................................................
Mr. Conyers..................................................... X
Mr. Frank....................................................... X
Mr. Berman...................................................... X
Mr. Boucher.....................................................
Mr. Nadler......................................................
Mr. Scott....................................................... X
Mr. Watt........................................................ X
Ms. Lofgren..................................................... X
Ms. Jackson Lee.................................................
Ms. Waters...................................................... X
Mr. Meehan...................................................... X
Mr. Delahunt....................................................
Mr. Wexler...................................................... X
Ms. Baldwin..................................................... X
Mr. Weiner...................................................... X
Mr. Schiff......................................................
Mr. Sensenbrenner, Chairman..................................... X
-----------------------------------------------
Total....................................................... 15 11
----------------------------------------------------------------------------------------------------------------
Committee Oversight Findings
In compliance with clause 3(c)(1) of rule XIII of the Rules
of the House of Representatives, the Committee reports that the
findings and recommendations of the Committee, based on
oversight activities under clause 2(b)(1) of rule X of the
Rules of the House of Representatives, are incorporated in the
descriptive portions of this report.
Performance Goals and Objectives
H.J. Res 36 does not authorize funding. Therefore, clause
3(c) of rule XIII of the Rules of the House is inapplicable.
New Budget Authority and Tax Expenditures
Clause 3(c)(2) of House rule XIII is inapplicable because
this legislation does not provide new budgetary authority or
increased tax expenditures.
Congressional Budget Office Cost Estimate
In compliance with clause 3(c)(3) of rule XIII of the Rules
of the House of Representatives, the Committee sets forth, with
respect to the resolution, H.J. Res. 36, the following estimate
and comparison prepared by the Director of the Congressional
Budget Office under section 402 of the Congressional Budget Act
of 1974:
U.S. Congress,
Congressional Budget Office,
Washington, DC, June 22, 2001.
Hon. F. James Sensenbrenner, Jr., Chairman,
Committee on the Judiciary,
House of Representatives, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for H.J. Res. 36, proposing
an amendment to the Constitution of the United States
authorizing the Congress to prohibit the physical desecration
of the flag of the United States.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contacts are Lanette J.
Walker (for Federal costs), who can be reached at 226-2860, and
Shelley Finlayson (for the State and local impact), who can be
reached at 225-3220.
Sincerely,
Dan L. Crippen, Director.
Enclosure
cc:
Honorable John Conyers Jr.
Ranking Member
H.J. Res. 36--Proposing an amendment to the Constitution of the United
States authorizing the Congress to prohibit the physical
desecration of the flag of the United States.
H.J. Res. 36 would propose an amendment to the Constitution
to allow the Congress to enact legislation that would prohibit
physical desecration of the U.S. flag. The legislatures of
three-fourths of the states would be required to ratify the
proposed amendment within seven years for the amendment to
become effective. By itself, this resolution would have no
impact on the federal budget. If the proposed amendment to the
Constitution is approved by the states, then any future
legislation prohibiting flag desecration could impose
additional costs on U.S. law enforcement agencies and the court
system to the extent that cases involving desecration of the
flag are pursued and prosecuted. However, CBO does not expect
any resulting costs to be significant. Because enactment of
H.J. Res. 36 would not affect direct spending or receipts, pay-
as-you-go procedures would not apply.
H.J. Res. 36 contains no intergovernmental or private-
sector mandates as defined in the Unfunded Mandates Reform Act
(UMRA) and would impose no costs on state, local, or tribal
governments. In order for the amendment to become part of the
Constitution, three-fourths of the state legislatures would
have to ratify the resolution within seven years of its
submission to the states by Congress. However, no state would
be required to take action on the resolution, either to reject
it or approve it.
The CBO staff contacts for this estimate are Lanette J.
Walker (for federal costs), who can be reached at 226-2860, and
Shelley Finlayson (for the state and local impact), who can be
reached at 225-3220. This estimate was approved by Robert A.
Sunshine, Assistant Director for Budget Analysis.
Constitutional Authority Statement
Pursuant to clause 3(d)(1) of rule XIII of the Rules of the
House of Representatives, the Committee finds the authority for
this legislation in article V of the Constitution, which
provides that the Congress has the authority to propose
amendments to the Constitution.
Section-by-Section Analysis and Discussion
H.J. Res. 36 simply states that ``[t]he Congress shall have
power to prohibit the physical desecration of the flag of the
Unites States.'' Congress clearly possessed this power prior to
the decisions of the United States Supreme Court in Texas v.
Johnson \30\ and U.S. v. Eichman.\31\ Those decisions held that
the act of physically desecrating the flag by burning was
expressive conduct protected by the First Amendment. As
interpreted by the Supreme Court, the First Amendment to the
U.S. Constitution, which states that, ``Congress shall make no
law . . . abridging freedom of speech,'' limits the power of
Congress. H.J. Res. 36 makes clear that Congress does have the
power to pass legislation to prohibit the physical desecration
of the flag of the United States.
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\30\ 491 U.S. 397 (1989).
\31\ 496 U.S. 310 (1990).
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This proposed constitutional amendment sets the parameters
for future action by the Congress on this issue. After the
amendment is ratified, the elected representatives of the
people will once again have the power, and can decide whether
to enact legislation, to prohibit the physical desecration of
the flag.
There are two key issues that will need to be considered in
enacting legislation to protect the flag from physical
desecration.
First, Congress, must consider the meaning of ``physical
desecration.'' The amendment itself requires physical contact
with the flag. Under this amendment, Congress could not punish
mere words or gestures directed at the flag, regardless of how
offensive they were. Webster's Ninth New Collegiate Dictionary
defines ``desecrate'' as follows: ``1: to violate the sanctity
of: PROFANE 2: to treat irreverently or contemptuously often in
a way that provokes outrage on the part of others.''
``Desecrate'' is defined in Black's Law Dictionary as ``to
violate sanctity of, to profane, or to put to unworthy use.''
Congress could clearly prohibit burning, shredding, and similar
defilement of the flag.
Second, Congress will have to decide what representations
of the flag of the United States are to be protected. Of
course, the resolution in no way changes the fact that ``what
constitutes the flag of the United States'' is defined by the
United States Congress at 4 U.S.C. Sec. 1. In enacting a
statute, Congress will need to decide which representations of
the flag are to be protected from physical desecration. They
may define the flag of the United States as only a cloth, or
other material readily capable of being waved or flown, with
the characteristics of the official flag of the United States
as described in 4 U.S.C. Sec. 1; or a ``flag'' could be
anything that a reasonable person would perceive to be a flag
of the Unites States even if it were not precisely identical to
the flag as defined by statute. This would allow States and the
Congress to prevent a situation whereby a representation of a
United States flag with forty-nine stars or twelve red and
white stripes was burned in order to circumvent the statutory
prohibition.
Markup Transcript
BUSINESS MEETING
WEDNESDAY, JUNE 20, 2001
House of Representatives,
Committee on the Judiciary,
Washington, DC.
The committee met, pursuant to notice, at 11:07 a.m., in
Room 2141, Rayburn House Office Building, Hon. F. James
Sensenbrenner [Chairman of the Committee] presiding.
AFTERNOON SESSION [1:47 p.m.]
Chairman Sensenbrenner. The Committee will be in order.
The next item on the agenda is the consideration of H.J.
Res. 36, proposing an amendment to the Constitution of the
United States authorizing the Congress to prohibit the physical
desecration of the flag of the United States. The Chair
recognizes the gentleman from Ohio, Mr. Chabot, the Chairman of
the Subcommittee on the Constitution, for a motion.
Mr. Chabot. Thank you, Mr. Chairman.
The Subcommittee on the Constitution reports favorably the
bill H.J. Res. 36 and move its favorable consideration, its
recommendation to the full House.
Chairman Sensenbrenner. Without objection, H.J. Res. 36
will be considered as read and open for amendment at any point.
The Chair recognizes the gentleman from Ohio, Mr. Chabot, to
strike the last word.
[H.J. Res. 36 follows:]
Mr. Chabot. Thank you, Mr. Chairman.
Since 1994, there have been 86 reported incidences
involving flag desecration. Since the U.S. Supreme Court's 1989
ruling in Texas versus Johnson, neither the States nor the
Federal Government have been able to prohibit the desecration
of this unique symbol of America's founding principles. In
Johnson, the Court, by a 5 to 4 vote, held that burning an
American flag as part of a political demonstration was
expressive conduct, protected by the First Amendment to the
U.S. Constitution.
In response to Johnson, Congress overwhelmingly passed the
``Flag Protection Act of 1989'', which amended the Federal flag
statute to focus ``exclusively on the conduct of the actor,
irrespective of any expressive message he or she might be
intending to convey.''
In 1990, however, in another 5 to 4 ruling, the U.S.
Supreme Court in United States v. Eichman struck down that act
as an infringement of expressive conduct protected by the First
Amendment, despite having also concluded that the statute was
content-neutral.
According to the Court, the government's desire to protect
the flag ``is implicated only when a person's treatment of the
flag communicates a message to others.'' Therefore, any flag
desecration statute by definition will be related to the
suppression of free speech and run afoul of the First
Amendment.
Vigilant protection of political speech is central to our
political system, and Americans have a profound national
commitment to ensuring uninhibited, robust, and wide open
debate on public issues. Until the Johnson and Eichman cases,
however, punishing flag desecration had been viewed as
compatible with both the letter and the spirit of the First
Amendment, and both Thomas Jefferson and James Madison strongly
supported Government actions to prohibit flag desecration.
First amendment freedoms do not extend and should not be
extended to grant an individual an unlimited right to engage in
any form of desired conduct. Both State and Federal criminal
codes prohibit conduct that could conceivably be cloaked in the
First Amendment, yet the constitutionality of such statutes is
not questioned. Burning a $10 bill, urinating in public,
pushing over a tombstone, parading through the streets naked
are examples of illegal conduct. Such conduct is not a form of
argument in which the robust exchange of ideas occurs, and
neither does such an exchange occur when one desecrates a flag.
Rather, they are examples of conduct that our society has
chosen not to condone. Until 1989, flag desecration was
included in that list. As a result of the Court's misguided
conclusions in Johnson and Eichman, however, disruptive and
violent conduct has been elevated to the same level as pure
political speech.
While amending the Constitution is a power that should not
be taken lightly, the only remedy left to the American people
as a result of the Johnson and Eichman rulings is a
constitutional amendment. The amendment before us will restore
the authority of Congress to prohibit the physical desecration
of the flag. The amendment itself does not prohibit flag
desecration. It merely empowers Congress to enact legislation.
Work on a statute will come at a later date, after the
amendment is ratified by three-fourths of the States.
In a compelling dissent from the Johnson majority's
conclusion, Chief Justice Rehnquist, joined by Justices
O'Connor and White, stated as follows: ``The American flag,
then, throughout more than 200 years of our history, has come
to be the visible symbol embodying our Nation. It does not
represent the views of any particular political party, and it
does not represent any particular political philosophy. The
flag is not simply another idea or point of view competing for
recognition in the marketplace of ideas. Millions and millions
of Americans regard it with almost mystical reverence,
regardless of what sort of social, political, or philosophical
beliefs they may have.''
H.J. Res. 36 simply reflects society's interest in
maintaining the flag as the national symbol by prohibiting its
physical desecration. Any statute enacted pursuant to it will
not interfere with the ability of persons from various opposing
viewpoints to express their ideas by other means. In his
Johnson dissent, Chief Justice Rehnquist correctly observed
that the First Amendment does not guarantee the right to employ
every conceivable method of communication at all times and in
all places.
I urge the Committee to protect this irreplaceable symbol
of America's founding principles and approve this resolution.
And I yield back the balance of my time.
Chairman Sensenbrenner. Who wishes to make the statement
for the minority? The gentleman from New York, Mr. Nadler, you
are recognized for 5 minutes.
Mr. Nadler. Thank you, Mr. Chairman.
Once again we are going to waste our time on a non-serious
amendment to the Constitution. There are enough Members of this
House, thankfully, who value the freedoms the flag represents
to defeat this amendment this year, as in prior years.
But we will go through this exercise anyway in an annual
political rite. I wonder if I am the only Members of this sub--
of this Committee who would be willing to simply read last
year's debate into the record, allow any new Members to say
their pieces, consider any amendments, and then reconvene and
move on.
Chairman Sensenbrenner. Without objection----
[Laughter.]
Mr. Nadler. I would urge my colleagues to revere what the
flag represents, the freedoms that make this a great Nation
more than the symbol itself. For example, we have read much in
the last few weeks of the fact that a flag was burnt at the
funeral of Mr. Dorisman, an unarmed man in New York, who was
killed by police for the crime of standing on the street corner
in my district. I think we all know that disrupting a funeral,
stealing someone else's flag and destroying it, is already a
serious crime. And no one doubts the constitutionality of what
makes it a crime. We do not need to play games with the Bill of
Rights to deal with that situation.
I somehow wish the majority would show as much interest in
the civil rights of the dead man as they seem to show toward
the protection of the flag at that funeral.
People have rights in this country that supersede public
opinion and even supersede the regard we have for the flag. The
flag is a symbol of those rights which make this Nation great.
If we do not preserve those rights, then the flag will have
been desecrated far beyond the capability of any individual
with a cigarette lighter.
Let there be no doubt that this amendment is aimed directly
at ideas, at ideas people have a right to express. Current
Federal law says the preferable way to dispose of a tattered
flag--this is the current Federal law--is to burn it. But there
are those who would criminalize the same act, burning the flag,
if it were done to express political dissent as opposed to
being done to express reverence for the flag. So what is really
being criminalized is not burning the flag, but the wrong
intent, an intent I thought that we disagree with, and that is
the heart of the First Amendment that we can't do that.
Current law, Federal law, which is constitutionally void,
makes it a misdemeanor to use the flag for advertising or in
packaging. How many Members of Congress, used-car dealers,
fast-food restaurants, and other seeming legitimate individuals
and enterprises have engaged in this act which our laws define
as criminal desecration. This amendment would presumably make
that more constitutional once again. If ratified, I think there
are more than few people in the House who would have to
redesign their campaign materials to stay out of jail.
Let me add one thing. As I said at the Subcommittee, today
we often see movies in which actors portraying Nazi soldiers
burn the American flag or trample it into the ground.
Presumably this amendment will not make those actors subject to
arrest. The only people who will be subject to arrest again
will be people who do the same thing while expressing an
unpopular idea, while expressing dissent or disgust with the
policies of this country. But people who in a play or a movie
portraying some enemy of the country burn the flag, they're not
going to be subject to arrest.
So, again, what is being made criminal, what the desire is
to make criminal, is not the act of burning the flag or
trampling it into the ground or doing something else
disrespectful to the flag. It's doing that in conjunction with
unpopular thoughts. Doing it in conjunction with a popular
thought, like saying Nazi soldiers are terrible people and you
shouldn't do that and we shouldn't follow the example of the
Nazi, well, that's fine in a movie or a play or even in an
instructional manual. But we are--this is the core of
expressive freedom, and the whole purpose of this amendment is
to say that we want to criminalize certain kinds of expressive
opinion because we do not agree with that opinion. And the
Chairman--the Chairman of the Subcommittee started off by
saying 86 times since 1991. We're going to amend the Bill of
Rights and start down that terrible road because of eight and a
half nuts per year in a country of 280 million people? Let
those eight and a half nuts be nuts. We'll survive that.
I yield back.
[The statement of Mr. Nadler follows:]
Prepared Statement of the Honorable Jerrold Nadler, a Representative in
Congress From the State of New York
Thank you, Mr. Chairman. Well, here we go again with the annual
Republican Rite of Spring: a proposed amendment to the Bill of Rights
to restrict what it calls flag ``desecration.''
Why spring? Because, the calendar tells us, Monday is Memorial Day,
June 14, is Flag Day, and then we have July 4th. Members need to send
out a press release extolling the need to ``protect'' the flag. We know
this is not, thankfully, a serious amendment. There are enough members
of this Congress who value the freedoms the flag represents more than
the symbol itself. But we will go through this exercise anyway. I
wonder if I am the only member of this Subcommittee who would be
willing to simply read last year's debate into the record, allow any
new members to say their pieces, consider any amendments, and move on.
I would urge my colleagues to revere what the flag represents, the
freedoms that make this a great nation, more than the symbol itself.
For example, the Majority has made much of the fact that a flag was
burnt at the funeral of Mr. Dorisman, an unarmed man who was killed by
police for the crime of standing on a street corner in my district. I
think we all know that disrupting a funeral, stealing someone else's
flag and destroying it is already a crime. We do not need to play games
with the Bill of Rights to deal with that situation. I somehow wish
that the majority would show as much interest in the civil rights of
the dead man as they seem to show toward the protection of the flag at
that funeral. That, in a nutshell is what is wrong with this amendment.
People have rights in this country that supercede public opinion, and
certainly a flag. The flag is the symbol of those rights which make
this nation great. If we do not preserve those rights, then the flag
will have been desecrated far beyond the capability of any individual
with a cigarette lighter.
Let there be no doubt that this amendment is aimed directly at
ideas. Current federal law says that the preferred way to dispose of a
tattered flag is to burn it, but there are those who would criminalize
the same act if it was done to express political dissent. Current
federal law, which is constitutionally void, also makes it a
misdemeanor to use the flag for advertising or on packaging. How many
members of Congress, used car dealers, fast food restaurants, and other
seeming legitimate individuals and enterprises have engaged in this act
which our laws define as criminal desecration? This amendment would
presumably make that law constitutional once more. If ratified, I think
there are more than a few people who will have to redesign their
campaign materials to stay out of the pokey.
People died for the nation and the rights which this flag so
proudly represents. Let us not destroy the way of life for which they
made the ultimate sacrifice.
Chairman Sensenbrenner. Without objection, all Members may
put statements in the record at this point.
Chairman Sensenbrenner. Are there amendments to the joint
resolution?
Mr. Frank. Mr. Chairman?
Chairman Sensenbrenner. The gentleman from Massachusetts.
Mr. Frank. I move to strike the last word.
Chairman Sensenbrenner. The gentleman is recognized for 5
minutes.
Mr. Frank. I understand the need for haste, but we are
amending the U.S. Constitution here or contemplating that, and
this is a very grave matter. And I think--I disagree with those
who want to amend the Constitution in this regard. I honor
their sentiments, and I think they really are owed a full
explanation and a full debate of this.
The problem here is the principle that we operate under. I
believe the principle ought to be that simply because the
Government does not punish you for doing something in no way
indicates that we approve of it or that what we think you're
doing is correct. The problem here is that we are approaching
the establishment of a principle that says that which the
Government does not prohibit, it is in some way countenancing
or allowing.
I would hope we would have this view that in this free
society the general rule is you as an individual are allowed to
do anything, and no inference is to be drawn from the
Government not acting. That is, we recognize that there are
many choices available to individuals in this society which are
despicable, contemptible, which portray terrible moral values,
but which precisely because we are free society, individuals
are allowed to pursue.
Free speech is, of course, one of the best examples. It is
relatively easy to come to the aid of speech with which you are
in agreement. The true test of your commitment to free speech
is your willingness to allow someone without legal hindrance to
say violent, contemptible things.
The Supreme Court of the United States said you have a
constitutional right not just to burn a flag but to burn a
cross. Few things in this country's history are as much a
repudiation of fundamental moral values as race relations.
Burning a cross is intended to be a validation of some of the
worst crimes committed in this country against people of color.
And the Supreme Court said if it's your cross and it's on your
property, you've got a right to burn it.
Well, here's the problem. If we amend the Constitution to
say that it is wrong to burn a flag because we believe that it
is wrong to burn a flag, what are we then saying when we leave
standing the Supreme Court opinion that says it's okay to burn
a cross? Okay in the sense that it is not illegal. Not that
it's right, not that we have anything but contempt for the
bigots who do that. And that's the problem. Once you have
established the principle that if we disagree with an action we
should make it criminal, what about all of the virtually
identical actions that we have not criminalized? Are we then
saying--I guess we are--that although we have the power to make
it criminal for you to burn a cross or to burn the Bible or to
burn copies of the Constitution, as was done by some of the
abolitionists, or to deface and degrade and destroy a number of
other very important symbols that carry very important weight
to people, well, then, we don't really object to that because
we have set the principle. If we don't want you to do it, we
will stop you legally. And, therefore, what we have not stopped
we must be indulging. And I think that it is a mistake.
So that's what we are talking about here. It has nothing to
do with the merits of the flag or not. It has to do with the
established--establishing this basic principle of freedom, and
I would hope the principle would be, as we have all tried to
hold to, if you are not, in fact, physically injuring someone
else, if you are not taking that person's property, depriving
them of the property, as the gentleman from New York pointed
out, the people who thuggishly burned a flag at the funeral of
that man who was unjustifiably shot to death by the police,
they behaved in a fashion that was not only bad but illegal,
and they could have and should have been prosecuted for a
number of crimes. That's what the law ought to do. The law
ought to protect our persons and our property from this sort of
invasion.
But once you set down the road of physically preventing
someone from doing this thing or punishing him or her from
doing it because we disapprove of it as an expression, because
it destroys a symbol of great value to all of us, then you have
breached the principle of freedom and you have set a precedent,
and I don't know where it stops. And I am prepared to predict
this will not be the only request we get. If, in fact, the
constitutional amendment is set up and it's okay to prosecute
people for burning a flag, what do you say to the people who
say, Well, how can you let them burn a cross? What do you say
to African Americans who say, This has been a symbol of the
most terrible degradation and oppression imposed on people like
me. How can you allow them freely to burn this cross in this
way, or destroy the Bible, or destroy these other symbols?
So I hope we will reject the constitutional amendment, not
out of any disrespect for the flag but out of recognition of
the centrality of the freedom principle.
Chairman Sensenbrenner. The gentlewoman from California,
Ms. Waters.
Ms. Waters. Mr. Chairman and Members----
Chairman Sensenbrenner. Five minutes.
Ms. Waters. Thank you. I--this is one of those moments and
pieces of legislation where it would be easy to choose to be
quiet because, even if you are going to vote to oppose it, you
buy yourself a bit of trouble by stepping up and saying that
you're going to oppose it and saying why you're going to oppose
it. But I think for those of us who really value freedom and
justice and democracy, it is important for us to always be on
the cutting edge of this and other issues that we could
dismantle if we placed our political interest first rather than
supporting this democracy that we believe has held us all in
good stead.
Mr. Frank mentioned how it is absolutely difficult for
people of color to accept that the burning of a cross is an
expression that is protected by the Constitution of the United
States. I have always, from the first time I was taught the
Constitution and the Bill of Rights, understood why it's so
important for us to support and value freedom of speech and
freedom of expression.
I would dare say that if we allowed freedom of speech and
freedom of expression to be undermined, we would not have the
ability to do the kind of protests and marching and rallies
that moved this country forward and forced this country to deal
with civil rights.
I receive some vicious mail, and often times I'm called
terrible names, and I know other Members of Congress sometimes
receive this kind of mail. There have been times when I've been
in various communities where, you know, someone has stopped to
let me know how much they dislike me, how much they dislike
people of color, on and on and on. And while for the moment it
angers me, I always settle down and think about how precious
and important that right is and how it must be protected.
I enjoy so much freedom of expression, freedom of speech. I
try in everything that I do to exercise to the best of my
ability the right to say and do and be, because this country
and this Constitution, this democracy, allows us to do that.
I am--I will not question the motives of my colleague, but
this is an issue that distresses me, this flag desecration
issue, because I see some people who have paid some--made some
terrible sacrifices literally manipulated on this issue. I see
veterans who care a lot about the flag, as we all do, and
really do believe that they had the responsibility to try and
protect the flag, get organized, they come to Congress, and
they work very hard to pass this kind of legislation.
And often times I want to say to them so much, you know,
look at some of the efforts that are made every year about the
4th of July on this issue and see what is being done, where are
these people, on trying to straighten out Veterans Affairs
where we have veterans coming to our doors day in and day out
who cannot get their disability status. We work long hours to
try and make sure that veterans get what's coming to them, and
I have an expert in my office who's been able to get back
payment, who's been able to work out very difficult issues with
Veterans Affairs. We need to straighten out Veterans Affairs.
It's not what it should be. We talk about the flag, but we are
not talking about putting more money and more resources to make
sure that veterans are serviced. We need more veteran centers.
There are communities still without veteran centers where
veterans can go and get assistance.
We need to straighten out and strengthen veterans'
hospitals. We have people who are sitting in those emergency
rooms and around those hospitals day in and day out. Well, you
talk to some of the same people who make a big, big deal out of
flag desecration, and they will tell you they're fiscal
conservatives, and they will not support the spending of more
money to do some of the kinds of things that need to be done
for veterans.
Well, I'm not a fiscal conservative. I am not going to
support a bill like this, but I certainly will support veterans
and spend money on them and try and make sure that whether it
is Agent Orange or any of the other difficult issues they're
dealing with, that this country does what it is supposed to do.
So I would ask my colleagues, and I would ask some of my
colleagues who have always gone along with this because they
don't have the courage not to, let's send a different message
this time. Let us not pass this legislation. Let us oppose it.
And let us see if we can't commit to see what we can do to
strengthen the democracy and increase the opportunity for
people to be able to say what they think is in the best
interest of the issues that they're working on, and let us work
hard to protect the veterans.
I will yield back the balance of my time.
Chairman Sensenbrenner. Anybody else who wishes to speak?
Mr. Coble. Mr. Chairman?
Chairman Sensenbrenner. The gentleman from North Carolina.
Mr. Coble. Mr. Chairman, I will not use the 5 minutes. Move
to strike the last word.
The gentlelady from California said she received hate mail.
Well, I say to Ms. Waters she does not own a corner on that
market. I receive hate mail as well, but for different reasons.
I come down on the side of authorizing the Congress to prohibit
the physical desecration of the flag of the United States, and
I, too, have received hate mail. This is a volatile issue, and
I think many of us are going to have to just learn to disagree
agreeably. But hate mail is coming both--on both sides of this
issue.
I just wanted to weigh in to that extent, Mr. Chairman, and
yield back. Mr. Chairman, I yield back the balance of my time.
Chairman Sensenbrenner. Are there any amendments? If there
are no amendments, we can vote on this. Okay. The Committee
stands in recess. Please come back promptly after the
rollcalls.
[Recess.]
Chairman Sensenbrenner. The Committee will be in order.
Pending at the time of the recess was the Joint Resolution,
H.J. Res. 36, Constitutional Amendment to give Congress the
power to prohibit the physical desecration of the flag of the
United States. The Joint Resolution was read and open for
amendment at any point.
The gentleman from North Carolina, Mr. Watt, for what
purpose do you seek recognition?
Mr. Watt. Thank you, Mr. Chairman. I have an amendment at
the desk.
Chairman Sensenbrenner. The clerk will report the
amendment.
The Clerk. The amendment to H.J. Res. 36----
Mr. Watt. Mr. Chairman, I ask unanimous consent the
amendment be considered as read.
Chairman Sensenbrenner. Well, if the gentleman will
withhold, we'd like to take a look at it first.
Without objection the amendment is considered as read, and
the gentleman from North Carolina is recognized for 5 minutes.
[The amendment follows:]
Mr. Watt. Thank you, Mr. Chairman. I'll be brief. I think
this is an amendment which I have offered before at previous
markups, and at the Subcommittee, in the full Committee, and on
the floor, which reflects a couple of concerns. Number one, if
you've got a constitutional amendment in the form that is
currently being proposed, and you have a First Amendment, which
already is in the Constitution, one might legitimately be
concerned which one would take precedence in the event there
were a conflict, and so I think it's important, although it may
be redundant, to say that whatever provision might be adopted
pursuant to the proposed constitutional amendment that is the
subject of debate here, should be subject to the existing First
Amendment. If you did it in terms of chronological age, I think
all of us would understand that the First Amendment has
certainly been around for a long time, much, much longer than
anything that--than H.J. Res. 36, the article that would be
adopted by H.J. Res. 36.
If you did it in terms of importance, I would dare say that
the First Amendment would--should be the provision that takes
precedence, but in the absence of this proposed amendment that
I'm offering, then basically we are leaving it to the Supreme
Court to make the determination of which would take precedence,
and I think we ought to make that decision here, not leave it
to the Court.
So I'm not going to belabor this. I know the Chairman wants
to move on with the markup, and everybody who has been on this
Committee in prior years has already heard all the arguments
about this, so I will just yield back the balance of my time.
Chairman Sensenbrenner. The gentleman from Ohio, Mr.
Chabot.
Mr. Chabot. Mr. Chairman, move to strike the last word.
Chairman Sensenbrenner. The gentleman's recognized for 5
minutes.
Mr. Chabot. Thank you, Mr. Chairman. I rise in opposition
to the amendment. Mr. Watt's amendment is flawed because the
present Court would declare that any legislation that
effectively prohibits the physical desecration of the flag is
inconsistent with the First Amendment.
As the first phrase of the amendment, any court construing
the amendment will find Mr. Watt's additional language
controlling. When the Supreme Court struck down the Flag
Protection Act passed by Congress in 1989, the majority stated,
quote, ``Although the Flag Protection Act contains no explicit
content-based limitation on the scope of prohibited conduct, it
is nevertheless clear that the government's asserted interest
is related to the suppression of free expression and concern
with the content of such expression,'' unquote. Thus the
Johnson and Eichman rulings stand for the proposition that
legislation prohibiting the desecration of the American flag
is, per se, unconstitutional under the First Amendment. By
requiring the Court to apply its strained interpretation of the
First Amendment when interpreting legislation enacted pursuant
to H.J. Res. 36, Mr. Watt's amendment will insure that all
legislation enacted pursuant to H.J. Res. 36 must be struck
down as violating the First Amendment. And therefore, Mr.
Watt's proposal here, although certainly interesting--and we
discussed this at length in the Committee, I believe--would
really make the passage of the constitutional amendment itself
pointless, and for that reason, we oppose the amendment.
Mr. Nadler. Mr. Chairman.
Chairman Sensenbrenner. The gentleman from New York, Mr.
Nadler.
Mr. Nadler. Thank you. It's heartening to hear the
admission from the----
Chairman Sensenbrenner. Recognized for 5 minutes.
Mr. Nadler. Thank you. Mr. Chairman, it's heartening to
hear the admission from the Chairman of the Subcommittee, Mr.
Chabot, that indeed the purpose of this seemingly innocuous
amendment against flag desecration is really to punish and to
prohibit free speech, which is what he just said, that saying
it subject to the First Amendment protections of free speech
would of course make the amendment a nullity because its
purpose is to deter and to punish some free speech. Well,
that's exactly what it does. He's entirely correct, and that's
why we shouldn't pass the amendment, and if we have to pass it,
we should pass Mr. Watt's amendment.
Let me read you, at this point, from a letter, a letter
written to Senator Leahy, which I'm going to ask be put into
the record, but I want to read part of it first.
Chairman Sensenbrenner. Without objection.
Mr. Nadler. Thank you. But I want to read part of the
letter first. ``If someone is 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.'' As we heard before, about 8\1\/\2\ per year.
``The flag will be flying proudly long after they have slunk
away. Finally, I shudder to think of the legal morass you will
create trying to implement the body of law that will emerge
from such an amendment. If I were a Members of Congress, I
would not vote for the proposed amendment, and would fully
understand and respect the views of those who would.''
This is signed by General Colin Powell, USA, retired, and I
hope that the common sense of this view of this distinguished
veteran and Secretary of State of the United States will
commend itself to this body.
[The letter follows:]
Chairman Sensenbrenner. The gentleman yield back? The
question is on the amendment offered by the gentleman from
North Carolina, Mr. Watt. Those in favor will signify by saying
aye.
Opposed, no.
The noes appear to have it.
Recorded vote is ordered. Those in favor of the Watt
Amendment will, as your names are called, answer ``aye'', those
opposed, ``no'', and the clerk will call the roll.
The Clerk. Mr. Hyde?
[No response.]
The Clerk. Mr. Gekas?
Mr. Gekas. No.
The Clerk. Mr. Gekas, no. Mr. Coble?
[No response.]
The Clerk. Mr. Smith?
[No response.]
The Clerk. Mr. Gallegly?
[No response.]
The Clerk. Mr. Goodlatte?
[No response.]
The Clerk. Mr. Chabot?
Mr. Chabot. No.
The Clerk. Mr. Chabot, no. Mr. Barr?
Mr. Barr. No.
The Clerk. Mr. Barr, no. Mr. Jenkins?
Mr. Jenkins. No.
The Clerk. Mr. Jenkins, no. Mr. Hutchinson?
[No response.]
The Clerk. Mr. Cannon?
Mr. Cannon. No.
The Clerk. Mr. Cannon, no. Mr. Graham?
[No response.]
The Clerk. Mr. Bachus?
[No response.]
The Clerk. Mr. Scarborough?
[No response.]
The Clerk. Mr. Hostettler?
Mr. Hostettler. No.
The Clerk. Mr. Hostettler, no. Mr. Green?
Mr. Green. No.
The Clerk. Mr. Green, no. Mr. Keller?
Mr. Keller. No.
The Clerk. Mr. Keller, no. Mr. Issa?
Mr. Issa. No.
The Clerk. Mr. Issa, no. Ms. Hart?
Ms. Hart. No.
The Clerk. Ms. Hart, no. Mr. Flake?
[No response.]
The Clerk. Mr. Conyers?
[No response.]
The Clerk. Mr. Frank?
Mr. Frank. Aye.
The Clerk. Mr. Frank, aye. Mr. Berman?
[No response.]
The Clerk. Mr. Boucher?
[No response.]
The Clerk. Mr. Nadler?
Mr. Nadler. Aye.
The Clerk. Mr. Nadler, aye. Mr. Scott?
Mr. Scott. Aye.
The Clerk. Mr. Scott, aye. Mr. Watt?
Mr. Watt. Aye.
The Clerk. Mr. Watt, aye. Ms. Lofgren?
Ms. Lofgren. Aye.
The Clerk. Ms. Lofgren, aye. Ms. Jackson Lee?
[No response.]
The Clerk. Ms. Waters?
[No response.]
The Clerk. Mr. Meehan?
Ms. Waters. Aye.
The Clerk. Ms. Waters, aye. Mr. Meehan?
[No response.]
The Clerk. Mr. Delahunt?
[No response.]
The Clerk. Mr. Wexler?
[No response.]
The Clerk. Ms. Baldwin?
Ms. Baldwin. Aye.
The Clerk. Ms. Baldwin, aye. Mr. Weiner?
Mr. Weiner. Pass.
The Clerk. Mr. Weiner, pass. Mr. Schiff?
[No response.]
The Clerk. Mr. Chairman?
Chairman Sensenbrenner. No.
The Clerk. Mr. Chairman, no.
Chairman Sensenbrenner. Are there additional Members in the
chamber who wish to cast their votes or change their vote? The
gentleman from North Carolina, Mr. Coble.
Mr. Coble. No.
The Clerk. Mr. Coble, no.
Chairman Sensenbrenner. Gentleman from Virginia, Mr.
Goodlatte.
Mr. Goodlatte. No.
The Clerk. Mr. Goodlatte, no.
Chairman Sensenbrenner. Gentleman from New York, Mr.
Weiner.
Mr. Weiner. Yes.
The Clerk. Mr. Weiner, yes.
Chairman Sensenbrenner. Gentleman from Florida, Mr. Wexler.
Mr. Wexler. Yes.
The Clerk. Mr. Wexler, yes.
Chairman Sensenbrenner. Is there anybody else who wishes to
record or to change their vote? If not, the clerk will report.
The Clerk. Mr. Chairman, there are 9 ayes and 13 nays.
Chairman Sensenbrenner. And the amendment is not agreed to.
Are there further amendments? The gentleman from Virginia, Mr.
Scott.
Mr. Scott. Mr. Chairman, I have an amendment at the desk.
Chairman Sensenbrenner. The clerk will report the
amendment.
The Clerk. Amendment to H.J. Res. 36, offered by Mr. Scott,
page 2, line 13, delete ``desecration'' and insert ``burning.''
Chairman Sensenbrenner. The gentleman from Virginia is
recognized for 5 minutes.
[The amendment follows:]
Mr. Scott. Mr. Chairman, I first want to thank you, Mr.
Chairman, for holding the markup in Subcommittee and in
Committee and for going through regular order. Frequently this
particular amendment just gets brought directly to the floor
without the regular order. So I want to express, on behalf of
at least this Members, appreciation for going through the
regular order as we consider something as important as an
amendment to the United States Constitution.
Now, first, Mr. Chairman, I want to apologize to those who
I have challenged by suggesting that there has not been a rash
of flag burning of America. I did a computer--had my staff do a
computer search, and found that in fact there has been a rash
of flag burning in America. Just recently, June 10th, in the
Detroit News, it reports that Dearborn, Michigan will hold its
annual Flag Day ceremony from 6:00 to 7:00 p.m. Thursday at
Ford Field. The program will include a ceremony to burn
tattered flags, tattered American flags, in keeping with the
American Legion protocols for disposal of flags no longer fit
for public display. So in Michigan there are flag burnings.
In Allentown, Pennsylvania, June 10th, 2001. It reports
that the commander of the American Legion Post 379, Bethlehem,
began planning for the official disposal, more than a year ago,
more than 7,000 flags were offered. The event Saturday served
as a token. The bulk of the flags will be disposed of later.
Color guards, Marines--of Marines, National Guard members,
police and fire departments, scout troops, march towards the
site of the fire that would be used to retire the flags. The
burning was monitored by the Bethlehem Fire Department. Orange
flames engulfed the flags as veterans and members of Boy Scout
Troop 352 solemnly dropped flags of all sizes into a 55-gallon
drum. Often flames leaped more than 4 feet into the air as
others from the audience chose flags from among those piled
high into two picnic tables ready for disposal. It went on and
on talking about the flag burning.
Also in Chicago. Bartlett Illinois will host its annual
Memorial Day walk and remembrance on Monday at 10 o'clock. The
Bartlett American Legion Post 1212 will hold a flag retirement
ceremony. The legion members will burn 13 flags. Riverside,
California warns us of a flag disposal ceremony scheduled for
July 3rd.
So there is flag burning going on all over the country, Mr.
Chairman. So this would prohibit flag burning. The Supreme
Court has considered restrictions on the Bill of Rights that
are permissible. For example, under the First Amendment, with
respect to speech, time, place and manner may generally be
regulated while content cannot. So if you have a march, what
time it is held, where it was held and so forth, can be
restricted by the government, but you can't restrict what the
people are marching about just because you disagree with that
message, unless you decide to ban all marches. You can't allow
marches by the Republican Party but not the Democratic Party.
My amendment has no content-based restrictions and makes the
underlying amendment content neutral. All flag burning would be
outlawed. The underlying resolution permits flag burning if you
say something nice while you're burning the flag, but would
criminalize flag burning if you say something offensive while
you're burning the flag.
If we really intend to bar flag burning, then let's bar all
flag burning. We should acknowledge that the purpose of the
underlying amendment is to stifle political expression we find
offensive. And while I agree that we should all respect the
flag, I don't think it's appropriate to use a criminal code to
enforce our views on those who disagree.
And so this amendment, Mr. Chairman, would change the
resolution to say what people have been calling it, the Flag
Burning Amendment, and I would hope that we would have truth in
legislation and adopt the amendment. Thank you very much.
Chairman Sensenbrenner. The gentleman's time has expired.
The Chair recognizes himself in opposition to the gentleman's
amendment.
The gentleman's amendment prohibits flag burning, but does
allow other activity that casts contempt upon the American
flag. I would like to cite a decision of the Supreme Court of
Wisconsin, my own State, to show what type of activity the
gentleman's amendment would legalize that would be illegal
under an implementing law passed pursuant to H.J. Res. 36,
should it be adopted and ratified.
On June 25th, 1998, the Wisconsin Supreme Court, citing
both the Johnson case and the Eichman case of the United States
Supreme Court, declared unconstitutional Wisconsin's flag
desecration statute. The facts of this case, which were
uncontested, involved a young man named Matthew Jansen, who
admitted to defecating on the United States flag and leaving it
at the door of a country club in Appleton, Wisconsin. The
Wisconsin Supreme Court, citing the precedent of the United
States Supreme Court, said that Mr. Jansen's disgusting action
was free speech that was protected by the United States
Constitution.
Now, that's the law because two 5 to 4 decisions of the
United States Supreme Court made it the law of the land. And I
think what the Supreme Courts both in my State and the United
States Supreme Court across the street have done, is to say
that defecating on the United States flag is protected free
speech, but defecating on the editorial page of the Washington
Post, when one disagrees with that, is disorderly conduct. And
the only way that we are going to be able to make the law
consistent is to defeat the gentleman from Virginia's
amendment, and to go on and pass this constitutional amendment
and having the States ratify it.
I give back the balance of my time.
Mr. Frank. Mr. Chairman?
Chairman Sensenbrenner. The gentleman from Massachusetts.
Mr. Frank. I move to strike the last word.
Chairman Sensenbrenner. The gentleman's recognized for 5
minutes.
Mr. Frank. That summarizes my problem with this amendment,
because if that's all you do, and you then consider you were
ratifying the Wisconsin Supreme Court--it is illegal to
defecate on a bible and leave it at the door of a church. It is
constitutional to defecate on the Wisconsin State flag and
leave it at the door of the governor. Indeed, in a rational
society, anyone who engages in that disgusting behavior ought
to be prosecuted, and it may be the prosecutor mischarged, but
I believe in Massachusetts, anyone who engages in that vile
behavior, no matter what the receptacle is that you choose,
would be guilty of a violation. The notion that you can do that
and deposit that on somebody else's doorstep is appalling, and
that's the problem. You will, by this amendment, make it
illegal, with appropriate implementing legislation, but it's
flag specific. So that by this very example, you are--and it's
the old principle of if you include the one, you exclude the
others. You are then saying to people, ``Okay, but if in
Wisconsin you defecate on the bible, on a copy of the US
Constitution, on the Wisconsin State flag, on a picture of
someone's wife or children or husband, that that's okay, and
you can put it on the doorstep.''
I would urge instead the Wisconsin legislature, of which we
have several distinguished alumni among us, to look at the
Wisconsin law, because if it is in fact legal in
Wisconsin for people to do that, and deposit it on somebody
else's doorstep, the you need to change the laws of Wisconsin.
But the problem is, as I said--and this shows my problem
with this amendment--the behavior there is disgusting. It is an
intrusion on other people's rights when you go to leave that on
other people's doorsteps, et cetera, and that ought to be
criminally prosecuted. That ought to be prohibited, and it
ought to be prohibited no matter what sacred symbol you choose
to offend people by so denigrating.
So I consider this a further explanation of why I believe
this amendment is inappropriate. And as I said, if in fact you
pass this amendment, you are then saying, we have--unless you
want to pass some other amendments--are we going to pass a
bible amendment? Are we going to pass a Wisconsin State
Constitution amendment, a Wisconsin State flag amendment, a
picture of George Washington amendment? That's the problem.
Once you say that the behavior was not the problem, but it's
what you choose as a vehicle for carrying it out, and it's okay
if you do it on anything else but the flag, you've got a major
gap.
Instead, I think, as I said, that there ought to be--and I
want to be very clear--I don't believe the Court has ever
held--and let's be very clear about this--maybe this is the
confusion when we talk about the people who violated the
privacy of that funeral or the decency and dignity of that
funeral--if something is illegal, if something is physically
disruptive, if it takes other people's property, it does not
get immunity because you happen to involve the flag. If you rob
a bank, the fact that you put the loot in your bag flag doesn't
make it okay to rob the bank. If you burn somebody else's
property, the fact that the property you chose to burn that
belonged to somebody else was a flag, doesn't make it okay. And
if you, in fact, engage in this kind of disgusting behavior
that's been described, and then go and infringe on somebody
else's property, you get no immunity because you chose to use
the flag or the Constitution or anything else. That I think, in
fact, defines the difference between us.
Mr. Chabot. Mr. Chairman?
Chairman Sensenbrenner. The gentleman from Ohio, Mr.
Chabot, is recognized for 5 minutes.
Mr. Chabot. Thank you, Mr. Chairman. There are several
flaws in Mr. Scott's proposal. The purpose of H.J. Res. 36 is
to allow Congress to prohibit all conduct that desecrates the
American flag, not just burning of the flag.
Webster's Dictionary defines ``desecrate'' as to violate
the sanctity of, to profane, or to treat irreverently or
contemptuously, often in a way that provokes outrage on the
part of others. In Black's Law Dictionary, it's other acts to
violate sanctity of, profane, or to put to unworthy use.
There are numerous physical acts other than burning that
would fall under that definition. The exact definition will be
debated, then passed by Congress ultimately if this
constitutional amendment actually becomes law. The Congress
will then determine what acts exactly should be determined to
be desecration. Congress has done this in the past and so can
easily be done in the future.
Relative to the gentleman's point about the different
incidents, as I stated in the opening, there have been 86
separate documented incidents in which the flag has been
desecrated since 1994, and relative to the very honorable
practice that veterans groups take part in Veterans Day and
other decoration--other very formal, very traditional
practices, I mean, there's a proper way to dispose of a flag,
and if you didn't have a way, you'd have to maintain the flags
in perpetuity. Obviously, that's not what's called for, and I
don't think anybody's going to mix up what is a proper way to
dispose of a flag and what would be offensive to the law.
And with that, I'll yield back the balance of my time.
Chairman Sensenbrenner. The gentleman from North Carolina,
Mr. Watt.
Mr. Watt. Move to strike the last word.
Chairman Sensenbrenner. The gentleman's recognized for 5
minutes.
Mr. Watt. Thank you. Mr. Chairman. I think Mr. Chabot
continues to illustrate the exact concern that those of us who
believe that people ought to be able to express themselves even
if we disagree with them should be protected. His whole
definition of desecration implies that you have to be
expressing yourself in some negative way to raise a level of
concern here, and I submit Mr. Scott's amendment clearly
illustrates. There are flag burnings going on all over,
regularly I mean. There's probably not a Member of Congress
that hasn't participated in one of these ceremonies, going to
an honorable burning of the flag.
But if you go to a dishonorable burning of the flag, where
somebody is saying, ``I hate some action of the government'' or
even ``I hate the government'' or even ``I hate the flag'', we
may all disagree with that person, but I think what we're
saying is that that person has the right to say that in this
country. And thus, a principle that our country was founded on.
That's what our country is all about. That's what a lot of the
people who support this flag desecration amendment presumably
have fought and died for over the years, to preserve the very
kind of expression that we all think is despicable, but is
protected under the First Amendment to the United States
Constitution.
And so I think as a vehicle for illustrating exactly what
this proposed constitutional amendment is about, Mr. Scott's
amendment clearly illustrates that. If this was about burning a
flag, rather than about what somebody was thinking or saying
when they burned the flag, then Mr. Scott's amendment would be
fine. You wouldn't be--you wouldn't have a need for the
underlying constitutional amendment that's being proposed. And
so I'm not sure I necessarily agree with Mr. Scott's amendment,
that we ought to go overboard and do away with all burnings,
but as a means of illustrating what this is about, it clearly
illustrates the shortcomings of the underlying amendment.
So I yield back, Mr. Chairman.
Chairman Sensenbrenner. The question is on the amendment by
the gentleman from Virginia, Mr. Scott. Those in favor will
signify by saying aye.
Opposed, no.
The noes appear to have it. The noes have it, and the
amendment is not agreed to.
Are there further amendments to the Joint Resolution? The
gentleman from New York, Mr. Weiner.
Mr. Weiner. Mr. Chairman, I have an amendment at the desk.
Chairman Sensenbrenner. The clerk will report the
amendment.
Mr. Chabot. Mr. Chairman, reserving a point of order.
Chairman Sensenbrenner. Point of order is reserved by the
gentleman from Ohio. The clerk will report the amendment.
The Clerk. Amendment to H.J. Res. 36----
Mr. Weiner. Request unanimous consent to have it accepted
as read or considered as read.
Chairman Sensenbrenner. Without objection, the reading is
waived. The amendment is open for amendment at any point, and
the gentleman is recognized for 5 minutes.
[The amendment follows:]
Mr. Weiner. Mr. Chairman, I thank you. I guess I believe
that flag burning should be illegal, and I believe--I believe
that this constitutional amendment is another example of things
we do from time to time in this House that might make us feel
good, but at the end of the day don't result in any change. I
think we all know, as we sit here, that the constitution will
not be amended with this amendment. I think we know that it
lacks the support in this Congress, it lacks the support in the
various State legislatures. However, I do believe that there is
a way for us to cure and to find remedy for what the Supreme
Court has struck down in previous statutes.
I believe that what we should be doing here is offer a
statutory fix for a statutory problem. I believe that if we
look at the Supreme Court judgments that have been handed down
till now, the critique by the Supreme Court has been first that
the statutes were vague, and more recently, that they were
violative of the First Amendment.
The amendment I'm offering today, which was originally
authored by Mr. Boucher, seeks to cure those problems in a
statutory confine. What it does is it prevents flag burning by
looking at the language that is permitted, already
constitutionally about stopping anything that would provoke
imminent violence or breach of the peace, or anything that is
in the government's right to protect its own property. It
provides protection for several--in several areas, on any of
the--if it's deemed that the action of burning the flag would
promote violence, it is a crime. If the flag is burning to the
United States Government, meaning it's on any Federal property,
it is a crime. If it's damaging the flag of another country on
any Federal land, it is a crime. Flag burning would be illegal.
I believe that this is a legitimate way that we can pass from
this House a fix that does not continue the fiction of this
constitutional amendment.
And there are some who believe that as a matter of--a
matter of philosophy, that this should be fixed via
constitutional amendment. And I believe that this is a
legislative problem that legislators should fix with
legislation. And I guess I share the sentiments of Secretary of
State Colin Powell, who said--and if you'll permit me to
quote--``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 the great shield of
democracy to hammer a few miscreants. The flag will be flying
proudly long after they have slunk away.'' Close quote.
I, however, do believe that we should ban flag burning and
I ask for favorable consideration of this amendment.
Chairman Sensenbrenner. Does the gentleman from Ohio insist
upon his point of order?
Mr. Chabot. Yes, Mr. Chairman, I do.
Chairman Sensenbrenner. The gentleman will state his point
of order.
Mr. Chabot. This does not comply with House rules requiring
that amendments be germane. This amendment would amend the
Federal criminal code and is not related to the fundamental
purpose of the joint resolution.
Chairman Sensenbrenner. Does anybody else wish to be heard
on the point of order? The gentleman from New York?
Mr. Weiner. Mr. Chairman, I request unanimous consent to
withdraw the amendment.
Chairman Sensenbrenner. Without objection.
Are there further amendments?
[No response.]
Chairman Sensenbrenner. There are no further amendments.
The question occurs on the motion to report H.J. Res. 36
favorably. All those in favor will say aye.
Opposed, no.
Chairman Sensenbrenner. The ayes appear to have it. The
ayes have it, and the motion to report is favorably adopted.
A record vote is demanded by the gentleman from
Massachusetts. The question is on favorably reporting H.J. Res.
36. Those in favor will, as your names are called, answer aye,
those opposed, no, and the clerk will call the roll.
The Clerk. Mr. Hyde?
[No response.]
The Clerk. Mr. Gekas?
Mr. Gekas. Aye.
The Clerk. Mr. Gekas, aye. Mr. Coble?
[No response.]
The Clerk. Mr. Smith?
[No response.]
The Clerk. Mr. Gallegly?
Mr. Gallegly. Aye.
The Clerk. Mr. Gallegly, aye. Mr. Chabot?
Mr. Chabot. Aye.
The Clerk. Mr. Chabot, aye. Mr. Goodlatte?
Mr. Goodlatte. Aye.
The Clerk. Mr. Goodlatte, aye. Mr. Barr?
Mr. Barr. Aye.
The Clerk. Mr. Barr, aye. Mr. Jenkins?
Mr. Jenkins. Aye.
The Clerk. Mr. Jenkins, aye. Mr. Hutchinson?
[No response.]
The Clerk. Mr. Cannon?
Mr. Cannon. Yes.
The Clerk. Mr. Cannon, aye. Mr. Graham?
[No response.]
The Clerk. Mr. Bachus?
[No response.]
The Clerk. Mr. Scarborough?
[No response.]
The Clerk. Mr. Hostettler?
Mr. Hostettler. Aye.
The Clerk. Mr. Hostettler, aye. Mr. Green?
Mr. Green. Aye.
The Clerk. Mr. Green, aye. Mr. Keller?
Mr. Keller. Aye.
The Clerk. Mr. Keller, aye. Mr. Issa?
Mr. Issa. Aye.
The Clerk. Mr. Issa, aye. Ms. Hart?
Ms. Hart. Aye.
The Clerk. Ms. Hart, aye. Mr. Flake?
[No response.]
The Clerk. Mr. Conyers?
[No response.]
The Clerk. Mr. Frank?
Mr. Frank. No.
The Clerk. Mr. Frank, no. Mr. Berman.
[No response.]
The Clerk. Mr. Boucher?
[No response.]
The Clerk. Mr. Nadler?
[No response.]
The Clerk. Mr. Scott?
Mr. Scott. No.
The Clerk. Mr. Scott, no. Mr. Watt?
Mr. Watt. No.
The Clerk. Mr. Watt, no. Ms. Lofgren?
Ms. Lofgren. No.
The Clerk. Ms. Lofgren, no. Ms. Jackson Lee?
[No response.]
The Clerk. Ms. Waters?
Ms. Waters. No.
The Clerk. Ms. Waters, no. Mr. Meehan?
Mr. Meehan. No.
The Clerk. Mr. Meehan, no. Mr. Delahunt?
[No response.]
The Clerk. Mr. Wexler?
Mr. Wexler. No.
The Clerk. Mr. Wexler, no. Ms. Baldwin?
Ms. Baldwin. No.
The Clerk. Ms. Baldwin, no. Mr. Weiner?
Mr. Weiner. No.
The Clerk. Mr. Weiner, no. Mr. Schiff?
[No response.]
The Clerk. Mr. Chairman?
Chairman Sensenbrenner. Aye.
The Clerk. Mr. Chairman, aye.
Chairman Sensenbrenner. Are there additional Members in the
room who wish to cast or change their vote? The gentleman from
North Carolina.
Mr. Coble. Aye.
Chairman Sensenbrenner. Mr. Coble. The gentleman from South
Carolina?
Mr. Graham. Aye.
The Clerk. Mr. Graham, aye.
Chairman Sensenbrenner. Is there anybody else who wishes to
cast or change their vote? If not, the clerk will report.
Ms. Lofgren. Mr. Chairman?
Chairman Sensenbrenner. For what purpose the gentlewoman
from California seek recognition?
Ms. Lofgren. May I ask how I am recorded?
Chairman Sensenbrenner. How is Ms. Lofgren recorded?
The Clerk. Ms. Lofgren is recorded as a no.
Ms. Lofgren. Thank you, Mr. Chairman.
Chairman Sensenbrenner. The gentleman from Michigan, Mr.
Conyers?
Mr. Conyers. Votes no.
The Clerk. Mr. Conyers, no.
Chairman Sensenbrenner. The gentleman from California, Mr.
Berman?
Mr. Berman. No.
The Clerk. Mr. Berman, no.
Mr. Chairman, there are 15 ayes and 11 noes.
Chairman Sensenbrenner. And the Joint Resolution is
favorably reported. Without objection, the Chairman is
authorized to move to go to conference pursuant to House rules.
Without objection, the staff is directed to make any technical
and conforming changes, and all Members will be given 2 days,
as provided by House rules, in which to submit additional
dissenting supplemental or minority views.
Dissenting Views
We oppose H.J. Res. 36, which would--for the first time in
our Nation's history--modify the Bill of Rights to limit
freedom of expression. Although the motives of the
proposition's supporters are well-intended, we believe that
adopting H.J. Res. 36 is wrong as a matter of principle, wrong
as a matter of precedent, and wrong as a matter of practice.
H.J. Res. 36 responds to a perceived problem--flag
burning--that is all but nonexistent in American life today.
Studies indicate that in all of American history from the
adoption of the United States flag in 1777 through the Texas v.
Johnson \1\ decision in 1989 there were only 45 reported
incidents of flag burning.\2\ Moreover, most incidents of flag
burning can be successfully prosecuted today under laws
relating to breach of the peace--all fully within current
constitutional constraints.\3\
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\1\ 491 U.S. 397 (1989). In a 5-4 decision authored by Justice
Brennan, the Court found that the Texas flag desecration law was
unconstitutional as applied in that it was a ``content-based''
restriction. Subsequent to Johnson, Congress enacted the Flag
Protection Act in an effort to craft a more content-neutral law. In
United States v. Eichman, 496 U.S. 310 (1990), the Court overturned
several flag burning convictions brought under the new law, finding
that the Federal law continued to be principally aimed at limiting
symbolic speech.
\2\ Robert J. Goldstein, Two Centuries of Flagburning in the United
States, 163 Flag Bull. 65 (1995).
\3\ See Hearing on H.J. Res. 79, Proposing an Amendment to the
Constitution of the United States Before the Subcomm. on Constitution
of the House Comm. on the Judiciary, 104th Cong., 1st Sess. (May 24.
1995) [hereinafter, 1995 House Judiciary Hearings] (statement of Bruce
Fein, at 1).
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By embedding a principle prohibiting flag desecration into
the Constitution, we will have elevated the flag over other
cherished symbols, including not only national symbols such as
the Declaration of Independence and Statue of Liberty, but
religious symbols such as crosses and bibles.
Ironically, H.J. Res. 36 will not even achieve the
sponsors' stated purpose--protecting the American flag and
honoring American's veterans. History has taught us that
restrictive legislation merely encourages more flag burning in
an effort to protest the law itself,\4\ and a vaguely worded
constitutional amendment such as H.J. Res. 36 will surely cause
such efforts to increase many times over. If we truly want to
honor our veterans, it would be far more constructive for
Congress to ensure that money is available under the budget to
provide them promised health care benefits and pension
payments. Thus, while we condemn those who would dishonor our
nation's flag, we believe that rather than protecting the flag,
H.J. Res. 36 will merely serve to dishonor the Constitution and
compromise the very ideals our nation was founded on. Retired
General Colin L. Powell echoed this sentiment, stating,
---------------------------------------------------------------------------
\4\ In his extensive survey of the history of American flag
desecration law, Robert Goldstein writes that ``[a]lthough the purpose
of the [Flag Protection Act adopted by Congress in 1968] was to
supposedly end flag burnings, its immediate impact was to spur perhaps
the largest single wave of such incidents in American history.'' Robert
J. Goldstein, Saving ``Old Glory''--The History of the American Flag
Desecration Controversy 215 (1995).
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.\5\
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\5\ Letter from Colin L. Powell to Hon. Patrick Leahy, May 18,
1999.
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IMPORTANCE OF FREEDOM OF EXPRESSION
Freedom of expression is one of the preeminent human rights
and is central to fostering all other forms of freedom.
Professor Emerson notes that since as early as the Renaissance,
free and open expression has been considered to be an essential
element of human fulfillment: ``The theory [of free expression]
grew out of an age that was awakened and invigorated by the
idea of a new society, in which man's mind was free, his fate
determined by his own powers of reason, and his prospects of
creating a rational and enlightened civilization virtually
unlimited.'' \6\
---------------------------------------------------------------------------
\6\ Thomas Emerson, Toward a General Theory of the First Amendment,
72 Yale L.J. 877, 886 (1963).
---------------------------------------------------------------------------
Freedom of expression also provides an important safety
valve for society. Professor Greenwalt writes that ``those who
are resentful because their interests are not accorded fair
weight, and who may be doubly resentful because they have not
even had a chance to present those interests, may seek to
attain by radical changes in existing institutions what they
have failed to get from the institutions themselves. Thus
liberty of expression, though often productive of divisiveness,
may contribute to social stability.'' \7\
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\7\ Kent Greenwalt, Speech and Crime, Am. B. Found. Res. J. 645,
672-3 (1980). See also Rotunda, Treatise on Constitutional Law:
Substance and Procedure Sec. 20.6 at 18 (2d ed. 1992).
---------------------------------------------------------------------------
Freedom of expression also serves as an important tool in
checking the abuse of powers by public officials. Professor
Blasi has noted that this ``checking function'' should be
accorded a level of protection higher than that given any other
type of communication because ``the particular evil of official
misconduct is of a special order.'' \8\
---------------------------------------------------------------------------
\8\ Vincent Blasi, The Checking Valve in First Amendment Theory,
1977 Am. B. Found. Res. J. 521, 526
---------------------------------------------------------------------------
Perhaps the most important function served by a system of
free expression is that it allows for free and open exchange of
thoughts--referred to by Justice Holmes as the ``marketplace of
ideas.'' \9\ In a 1644 speech before the English Parliament
criticizing censorship laws, Milton articulated the notion that
free expression helps to prevent human error through ignorance:
---------------------------------------------------------------------------
\9\ Justice Holmes articulated his ``marketplace of ideas'' theory
of free speech in his dissent in Abrams v. United States, 250 U.S. 616,
630 (1919): ``[T]he ultimate good desired is better reached by free
trade in ideas . . . the best test of truth is the power of the thought
to get it accepted in the competition in the market.''
[T]hough all the winds of doctrine were let loose to
play upon the earth, so truth be in the field, we do
injuriously, by licensing and prohibiting, to misdoubt
her strength. Let her and falsehood grapple, whoever
knew truth put to the worse in a free and open
encounter? \10\
---------------------------------------------------------------------------
\10\ J. Milton, Areopagitica, A Speech for the Liberty of
Unlicensed Printing to the Parliament of England (1644).
In his 1859 essay On Liberty, John Stuart Mill further
expanded upon this vision when he recognized the public good
and enlightenment which results from the free exchange of
---------------------------------------------------------------------------
ideas:
First, if any opinion is compelled to silence, that
opinion for aught we can certainly know, be true. . . .
Secondly, though this silenced opinion be in error, it
may, and very commonly does, contain a portion of the
truth. . . . Thirdly, even if the received opinion be
not only true but the whole truth; unless it is
suffered to be and actually is, vigorously and
earnestly contested, it will by most of those who
receive it, be held in the manner of a prejudice.\11\
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\11\ J.S. Mill, On Liberty Ch. II. (1859).
The American system of government is itself premised on
freedom of expression. Professor Emerson notes, ``Once one
accepts the premise of the Declaration of Independence that
governments derive `their just powers from the consent of the
governed'--it follows that the governed must, in order to
exercise their right of consent, have full freedom of
expression both in forming individual judgments and in forming
the common judgments.'' \12\
---------------------------------------------------------------------------
\12\ Emerson, supra note 6, at 883.
---------------------------------------------------------------------------
The founding fathers recognized the difficulties in
maintaining a system of free expression against the ``tyranny
of the majority.'' In The Federalist Papers, James Madison
expressed concern as to the unfettered power of the majority:
``By a faction I understand a number of citizens, whether
amounting to a majority or a minority of the whole who are . .
. adverse to the rights of other citizens, or to the permanent
and aggregate interests of the community.'' \13\ It is for
these reasons that the Constitution not only explicitly
protected freedom of expression,\14\ but created a judiciary
possessing the power of review over all legislative and
executive action. These twin safeguards--a written constitution
and an independent judiciary--have served to foster in this
country the freest society in human history.
---------------------------------------------------------------------------
\13\ The Federalist No. 10 (J. Madison) at 57 (J. Cooke ed. 1961).
\14\ Indeed, the framers chose to include freedom of speech in the
First Amendment of the Bill of Rights, and wrote its protection in
absolute terms: ``Congress shall make no law . . . abridging freedom of
speech. . . .'' The strictness of the language is in contrast with the
Fourth Amendment, for example, which prohibits only ``unreasonable
searches and seizures.''
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H.J. RES. 36 IS WRONG AS A MATTER OF PRINCIPLE
Unfortunately, H.J. Res. 36 belies our system of unfettered
political expression. In so doing, it not only undermines our
commitment to freedom of expression and opens the door to
selective prosecution based on political belief, but diminishes
our nation's international standing.
The true test of any nation's commitment to freedom of
expression lies in its ability to protect unpopular expression,
such as flag desecration. In 1929, Justice Holmes wrote that it
was the most imperative principle of our Constitution that it
protect not just freedom for the thought and expression we
agree with, but ``freedom for the thought we hate.'' \15\ As
Justice Jackson so eloquently wrote in 1943:
---------------------------------------------------------------------------
\15\ United States v. Schwimmer, 254 U.S. 644, 655 (1929) (Holmes,
J., dissenting).
Freedom 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.\16\
---------------------------------------------------------------------------
\16\ West Virginia Board of Education v. Barnette, 319 U.S. 624,
642 (1943).
As Jim Warner, a Vietnam veteran and prisoner of the North
---------------------------------------------------------------------------
Vietnamese from October 1967 to March 1973, has written:
The fact is, the principles for which we fought, for
which our comrades died, are advancing everywhere upon
the Earth, while the principles against which we fought
are everywhere discredited and rejected. The flag
burners have lost, and their defeat is the most fitting
and thorough rebuke of their principles which the human
could devise. Why do we need to do more? An act
intended merely as an insult is not worthy of our
fallen comrades. It is the sort of thing our enemies
did to us, but we are not them, and we must conform to
a different standard. . . . Now, when the justice of
our principles is everywhere vindicated, the cause of
human liberty demands that this amendment be rejected.
Rejecting this amendment would not mean that we agree
with those who burned our flag, or even that they have
been forgiven. It would, instead, tell the world that
freedom of expression means freedom, even for those
expressions we find repugnant.\17\
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\17\ See Hearing on H.J. Res. 54, Proposing an Amendment to the
Constitution of the United States Before the Subcomm. on the
Constitution of the House Comm. on the Judiciary, 105th Cong., 2nd
Sess. (April 30, 1997) [hereinafter 1997 House Judiciary Hearings]
(statement of Jim Warner). These thoughts are echoed by Terry Anderson,
a former U.S. Marine Staff Sergeant and Vietnam veteran who was held
hostage in Lebanon, who wrote that ``[H.J. Res. 54] is an extremely
unwise restriction of every American's Constitutional rights. The
Supreme Court has repeatedly held that the First Amendment protects
symbolic acts under its guarantee of free speech. Burning or otherwise
damaging a flag is offensive to many (including me), but it harms no
one and is so obviously an act of political speech that I'm amazed
anyone could disagree with the Court.'' (Id. statement of Terry
Anderson).
And there can be no doubt that ``symbolic speech'' relating
to the flag falls squarely within the ambit of traditionally
protected speech. Our nation was borne in the dramatic symbolic
speech of the Boston Tea Party, and our courts have long
recognized that expressive speech associated with the flag is
protected speech under the First Amendment.
Beginning in 1931 with Stromberg v. California \18\ and
continuing through the mid-1970's with Smith v. Goguen \19\ and
Spence v. Washington,\20\ the Supreme Court has consistently
recognized that flag-related expression is entitled to
constitutional protection. Indeed, by the time Gregory Johnson
was prosecuted for burning a U.S. flag outside of the
Republican Convention in Dallas, the State of Texas readily
acknowledged that Johnson's conduct constituted ``symbolic
speech'' subject to protection under the First Amendment.\21\
Those who seek to justify H.J. Res. 36 on the grounds that flag
desecration does not constitute ``speech'' are therefore
denying decades of well understood court decisions.\22\
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\18\ 283 U.S. 359 (1931) (State statute prohibiting the display of
a ``red flag'' overturned). Absent this decision, a State could
theoretically have prevented its citizens from displaying the U.S.
flag.
\19\ 415 U.S. 94 (1972).
\20\ 418 U.S. 405 (1974) (overturning convictions involving wearing
a flag patch and attaching a peace sign to a flag).
\21\ Texas v. Johnson, 491 U.S. at 397.
\22\ See also, Note, The Supreme Court--Leading Cases, 103 Harv. L.
Rev. 137, 152 (1989) (``the majority opinion [in Johnson] is a
relatively straightforward application of traditional first amendment
jurisprudence''); Sheldon H. Nahmod, The Sacred Flag and the First
Amendment, 66 Ind. L.J. 511, 547 (1991) (``Johnson is an easy case if
well-established first amendment principles are applied to it'').
Survey results show that the majority of Americans who initially
indicate support for a flag protection amendment oppose it once they
understand its impact on the Bill of Rights. In a 1995 Peter Hart poll,
64 percent of registered voters surveyed said they were in favor of
such an amendment, but when asked if they would op pose or favor such
an amendment if they knew it would be the first in our Nation's history
to restrict freedom of speech and freedom of political protest, support
plummeted from 64 percent to 38 percent.
---------------------------------------------------------------------------
While we deplore the burning of an American flag in hatred,
we recognize that it is our allowance of this conduct that
reinforces the strength of the Constitution. As one Federal
court wrote in a 1974 flag burning case, ``[T]he flag and that
which it symbolizes is dear to us, but not so cherished as
those high moral, legal, and ethical precepts which our
Constitution teaches.'' \23\ The genius of the Constitution
lies in its indifference to a particular individual's cause.
The fact that flag burners are able to take refuge in the First
Amendment means that every citizen can be assured that the Bill
of Rights will be available to protect his or her rights and
liberties should the need arise.
---------------------------------------------------------------------------
\23\ U.S. ex rel Radich v. Criminal Court of N.Y., 385 F. Supp.
165, 184 (1974).
---------------------------------------------------------------------------
H.J. Res. 36 will also open the door to selective
prosecution based purely on political beliefs. When Peter
Zenger was charged with ``seditious libel'' in the very first
case involving freedom of speech on American soil, his lawyer,
James Alexander warned:
The abuses of freedom of speech are the excrescences of
Liberty. They ought to be suppressed; but whom dare we
commit the care of doing it? An evil Magistrate,
entrusted with power to punish Words, is armed with a
Weapon the most destructive and terrible. Under the
pretense of pruning the exuberant branches, he
frequently destroys the tree.\24\
---------------------------------------------------------------------------
\24\ Philadelphia Gazette, Nov. 17, 1737, quoted in Levy, Legacy of
Suppression 135 (1960).
The history of the prosecution of flag desecration in this
country bears out these very warnings. The overwhelming
majority of flag desecration cases have been brought against
political dissenters, while commercial and other forms of flag
desecration have been almost completely ignored. An article in
Art in America points out that during the Vietnam War period,
those arrested for flag desecration were ``invariably critics
of national policy, while `patriots' who tamper with the flag
are overlooked.'' \25\ Whitney Smith, director of the Flag
Research Center has further observed that commercial misuse of
the flag was ``more extensive than its misuse by leftists or
students, but this is overlooked because the business interests
are part of the establishment.\26\
---------------------------------------------------------------------------
\25\ See Robert J. Goldstein, supra note 4, at 154.
\26\ Id.
---------------------------------------------------------------------------
Supporters of H.J. Res. 36 argue that many flag desecration
``incidents'' involve the burning of the flag. Yet the burning
of the flag is also considered to be the proper way to retire a
flag, and such flag burning events are common throughout the
country.\27\ H.J. Res. 36 seeks to alter the present First
Amendment implications of flag burning. It is clear under H.J.
Res. 36 that burning a flag while saying something respectful
would not be inconsistent with the proposed Amendment, while
burning a flag while saying something which offended the local
sheriff could be a criminal offense. Thus, what would be
regulated by H.J. Res. 36 is not the physical action of burning
a flag, but the sentiments expressed with the burning.
---------------------------------------------------------------------------
\27\ A June 19, 2001 search of recent news articles conducted by
the Congressional Research Service revealed four articles, all of which
referred to flag burning by the American Legion. See ``Wayne Briefly,''
The Detroit News June 10, 2001, at 3 (the town of Dearborn, Michigan
would burn tattered American flags during its annual Flag Day ceremony
from 6:00 to 7:00 p.m. on June 14, 2001); Sonia Csencsits, ``Ex-POW
Tells What To Do Before Disrespecting Flag--Ask Someone To Whom It's
Meaningful, He Urges at Disposal Event,'' The Morning Call, June 10,
2001, at B3 (The town of Bethlehem, PA disposed of more than 7,000
flags by burning them. ``Orange flames engulfed the flags as veterans
and members of Boy Scout Troop 352, Bethlehem, solemnly dropped flags
of all sizes into a 55-gallon drum. Often flames leaped more than 4
feet in the air as others from the audience chose flags from among
those piled high on two picnic tables, ready for disposal.''); LaTanya
Letcher & Sue Ter Maat, ``War Dog Memorial To Be Unveiled in
Streamwood,'' Chicago Daily Herald, May 24, 2001, at C1 (the annual
Memorial Day walk in Bartlett, Illinois would include a flag retirement
ceremony where 13 flags would be burned); Melissa Eiselein, ``Legion
Shares Etiquette, Symbolism of Old Glory,'' The Press-Enterprise, June
14, 2001, at B02 (flags would be destroyed in a ceremony on July 3). No
incidents of flag burning aside from these American Legion events were
found.
---------------------------------------------------------------------------
Almost as significant as the damage H.J. Res. 36 would do
to our own Constitution, is the harm it will inflict on our
international standing in the area of human rights.
Demonstrators who cut the communist symbols from the center of
the East German and Romanian flags prior to the fall of the
Iron Curtain committed crimes against their country's laws, yet
freedom-loving.
Americans justifiably applauded these brave actions. If we
are to maintain our moral stature in matters of human rights,
it is essential that we remain fully open to unpopular dissent,
regardless of the form it takes.\28\
---------------------------------------------------------------------------
\28\ See, e.g., 1997 House Judiciary Hearings, supra note 5
(statement of PEN American Center, Feb. 5, 1997) (``To allow for the
prosecution of [flag burners] would be to dilute what has hitherto been
prized by Americans everywhere as a cornerstone of our democracy. The
right to free speech enjoys more protection in our country than perhaps
any other country in the world.'').
---------------------------------------------------------------------------
To illustrate, when the former Soviet Union adopted
legislation in 1989 making it a criminal offense to
``discredit'' a public official, Communist officials sought to
defend the legislation by relying on, among other things, the
United States Flag desecration statute.\29\ By adopting H.J.
Res 36 we will be unwittingly encouraging other countries to
enact and enforce other more restrictive limitations on speech
while impairing our own standing to protest such actions.
---------------------------------------------------------------------------
\29\ Rotunda, supra note 7, Sec. 20.49 at 352.
---------------------------------------------------------------------------
H.J. RES. 36 IS WRONG AS A MATTER OF PRECEDENT
Adoption of H.J. Res. 36 will also create a number of
dangerous precedents in our legal system. The Resolution will
encourage further departures from the First Amendment and
diminish respect for our Constitution.
If we approve H.J. Res. 36, it is unlikely to be the last
time Congress acts to restrict our First Amendment liberties.
As President Reagan's Solicitor General Charles Fried testified
in 1990:
Principles are not things you can safely violate ``just
this once.'' Can we not just this once do an injustice,
just this once betray the spirit of liberty, just this
once break faith with the traditions of free expression
that have been the glory of this nation? Not safely;
not without endangering our immortal soul as a nation.
The man who says you can make an exception to a
principle, does not know what a principle is; just as
the man who says that only this once let's make 2 + 2 =
5 does not know what it is to count.\30\
---------------------------------------------------------------------------
\30\ Measures to Protect the American Flag, Hearing Before the
Senate Comm. on the Judiciary, 101st Cong., 2d Sess. (June 21, 1990)
(statement of Charles Fried at 113) [hereinafter 1990 Senate Judiciary
Hearings].
Adoption of H.J. Res. 36 will also diminish and trivialize
our Constitution.\31\ If we begin to second guess the courts'
authority concerning matters of free speech, we will not only
be carving an awkward exception into a document designed to
last for the ages, but will be undermining the very structure
created under the Constitution to protect our rights. This is
why Madison warned against using the amendment process to
correct every perceived constitutional defect, particularly
concerning issues which inflame public passion.\32\
Conservative legal scholar Bruce Fein emphasized this concern
when he testified before the Subcommittee at 1995 House
Judiciary hearings:
---------------------------------------------------------------------------
\31\ Inserting the term ``desecration'' into the Constitution would
in and of itself seem highly inappropriate. Webster's New World
Dictionary defines ``desecrate'' as ``to violate the sacredness of,''
and in turn defines ``sacred'' as ``consecrated to a god or God; holy;
or having to do with religion.'' The introduction of these terms could
create a significant tension within our constitutional structure, in
particular with the religion clause of the First Amendment.
\32\ Legal philosopher Lon Fuller also highlighted this very
problem over four decades ago: ``We should resist the temptation to
clutter up [the Constitution with amendments relating to substantive
matters. In that way we avoid] . . . the obvious unwisdom of trying to
solve tomorrow's problems today. But [we also escape the] more
insidious danger of the weakening effect [such amendments] have on the
moral force of the Constitution itself.'' L. Fuller, American Legal
Philosophy at Mid-Century, 6 J.L. Ed. 457, 465 (1954), as cited in
Hearings on Proposed Flag Desecration Amendment before the Subcomm. on
Constitution of the Senate Comm. on the Judiciary, 104th Cong., 1st
Sess. (June 6, 1995) [hereinafter, 1995 Senate Judiciary Hearings]
(statement of Gene R. Nichol).
While I believe the Johnson and Eichman decisions were
misguided, I do not believe a Constitutional amendment
would be a proper response. . . . To enshrine authority
to punish flag desecrations in the Constitution would
not only tend to trivialize the Nation's Charter, but
encourage such juvenile temper tantrums in the hopes of
receiving free speech martyrdom by an easily beguiled
media. . . . It will lose that reverence and
accessibility to the ordinary citizen if it becomes
cluttered with amendments overturning every wrong-
headed Supreme Court decision.\33\
---------------------------------------------------------------------------
\33\ 1995 House Judiciary Hearings, supra note 3 (statement of
Bruce Fein at 1-2).
And, as Professor Norman Dorsen points out in his
testimony, ``not including the Bill of Rights, which was
ratified in 1791 as part of the original pact leading to the
Constitution, only 17 amendments have been added to it, and
very few of these reversed constitutional decisions of the
Supreme Court. To depart from this tradition now . . . would be
an extraordinary act that could lead to unpredictable mischief
in coming years.'' \34\
---------------------------------------------------------------------------
\34\ See 1997 House Judiciary Hearings, supra note 5 (statement of
Professor Norman Dorsen, New York University School of Law).
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H.J. RES. 36 IS WRONG AS A MATTER OF PRACTICE
As a practical matter, H.J. Res. 36 is so poorly drafted
and conceived that there can be no doubt it will open up a
``Pandora's Box'' of litigation. Not only are its terms
incredibly open-ended and vague, but the Resolution gives us no
guidance as to its intended Constitutional scope or parameter.
While the amendment's supporters claim they are merely drawing
a line between legal and illegal behavior, in actuality, they
are drawing no line at all, but merely granting the Federal
Government open-ended authority to prosecute dissenters who use
the flag in a manner deemed inappropriate.
There is little understanding or consensus concerning the
meaning of such crucial terms as ``desecration'' and ``flag of
the United States.'' Depending on the statute ultimately
adopted under the Amendment's authority, ``desecration'' could
apply to canceling flag postage stamps or use of the flag by
Olympic athletes. The term ``flag of the United States'' could
include underwear from the ``Tommy Hilfiger'' collection as
well as a Puerto Rican flag including a likeness of the U.S.
flag.\35\
---------------------------------------------------------------------------
\35\ 1995 House Judiciary Hearings, supra note 3 (statement of
Representative Serrano). See also, Rotunda, supra note 7, Sec. 20.49 at
Sec. 90 (If we adopt laws outlawing flag desecration ``there will be
future problems defining what is a flag. Will it be a crime for someone
to burn a flag? Or burning fireworks in the shape of an American flag?
May a movie director (filming Francis Scott Key watching Fort McHenry)
order that the American flag of 1812 be shot at and otherwise defaced?
Will it be a crime for the post office to cancel (i.e. deface) a stamp
that has on it a copy of the American flag? If a flag design is on a
birthday cake, will it be a Federal crime to light the birthday candies
on the cake? Will cutting the cake deface it? Is it defacing the flag
to display it upside down?'').
---------------------------------------------------------------------------
The Resolution's sponsors also appear to have little
understanding as to its Constitutional scope or breadth. H.J.
Res. 36 gives us no guidance whatsoever as to what if any
provisions of the First Amendment, the Bill of Rights, or the
Constitution in general that it is designed to overrule.\36\
During debate of the 1995 proposed amendment, amendment sponsor
Charles Canady (R-FL) asserted that the flag desecration
amendment would simply restore the status quo before the
Supreme Court ruled in 1989.\37\ He later insisted, however,
that the amendment would also allow the States to criminalize
wearing clothing with the flag on it.\38\ The latter
interpretation goes well beyond overturning Johnson and
indicates that the flag desecration amendment could permit
prosecution under statutes that were otherwise
unconstitutionally void for vagueness. For example, the Supreme
Court in 1974 declared unconstitutionally vague a statute that
criminalized treating the flag contemptuously and did not
uphold the conviction of an individual wearing a flag patch on
his pants.\39\ Rep. Canady's interpretation of the flag
desecration amendment would allow such a prosecution despite
the statute's vagueness.
---------------------------------------------------------------------------
\36\ Since H.J. Res. 36 is drafted to modify the entire
Constitution, rather than any portion of the First Amendment, it is
unclear whether and to what extent it will supersede provisions in the
Bill of Rights relating to ``void for vagueness'' (First and Fifth
Amendments), overbreadth and least restrictive alternatives test (First
Amendment), search and seizure (Fourth Amendment), due process and
self-incrimination (Fifth Amendment), cruel and unusual punishment
(Eighth Amendment) and provisions in the Constitution relating to the
supremacy clause (Article VI, Section 2) and the speech and debate
clause (Article 1, Section 6). See e.g., 1990 Senate Judiciary
Hearings, supra note 29 (statement of Walter Dellinger); William Van
Alstyne, Stars and Stripes and Silliness Forever, Legal Times, at 34
(October 2, 1989).
\37\ House Comm. on the Judiciary, Markup Session of H.J. Res. 79,
104th Cong., 1st Sess. 109 (1995).
\38\ Id. at 110.
\39\ Smith v. Goguen, 415 U.S. 566, 568-69 (1974).
---------------------------------------------------------------------------
It is insufficient to respond to these concerns by
asserting that the courts can easily work out the meaning of
the terms in the same way that they have given meaning to other
terms in the Bill of Rights such as ``due process.'' Unlike the
other provisions of the Bill of Rights, H.J. Res. 36 represents
an open-ended and unchartered invasion of our rights and
liberties, rather than a back-up mechanism to prevent the
government from usurping our rights.
CONCLUSION
Adoption of H.J. Res. 36 will undermine our commitment to
freedom of expression and do real damage to the constitutional
system set up by our forefathers. If we amend the Constitution
to outlaw flag desecration, we will be joining ranks with
countries such as China and Iran and the regimes of the former
Soviet Union and South Africa.\40\
---------------------------------------------------------------------------
\40\ Roman Rolinick, ``Flag Amendment would put U.S. with Iran,
China,'' UPI (July 1, 1989).
---------------------------------------------------------------------------
We believe we have come too far as a nation to risk
jeopardizing our commitment to freedom in such a fruitless
endeavor to legislate patriotism. As the Court wrote in West
Virginia State Board of Education v. Barnette:
[The] ultimate futility of . . . attempts to compel
coherence is the lesson of every such effort from the
Roman drive to stamp out Christianity as a disturber of
its pagan unity, the Inquisition as a means to
religious and dynastic unity, the Siberian exiles as a
means of Russian unity, down to the last failing
efforts of our present totalitarian enemies. Those who
begin coercive elimination of dissent soon find
themselves exterminating dissenters. Compulsory
unification of opinion achieves only the unanimity of
the graveyard.\41\
---------------------------------------------------------------------------
\41\ 319 U.S. at 641.
If we adopt H.J. Res. 36, we will be denigrating the vision
of Madison and Jefferson, and glorifying the simple-mindedness
of Johnson and Eichman. If we tamper with our Constitution, we
will have turned the flag, an emblem of unity and freedom, into
a symbol of intolerance. We will not go on record as supporting
a proposal which will do what no foreign power has been able to
---------------------------------------------------------------------------
do--limit the freedom of expression of the American people.
John Conyers, Jr.
Barney Frank
Howard L. Berman
Jerrold Nadler
Robert C. Scott
Melvin L. Watt
Zoe Lofgren
Sheila Jackson Lee
Maxine Waters
Tammy Baldwin