[Senate Hearing 106-481]
[From the U.S. Government Publishing Office]
S. Hrg. 106-481
AN AMENDMENT TO THE CONSTITUTION OF THE UNITED STATES AUTHORIZING
CONGRESS TO PROHIBIT THE PHYSICAL DESECRATION OF THE FLAG OF THE UNITED
STATES
=======================================================================
HEARING
before the
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED SIXTH CONGRESS
FIRST SESSION
on
S.J. Res. 14
A BILL PROPOSING AN AMENDMENT TO THE CONSTITUTION OF THE UNITED STATES
AUTHORIZING CONGRESS TO PROHIBIT THE PHYSICAL DESECRATION OF THE FLAG
OF THE UNITED STATES
__________
APRIL 20 AND APRIL 28, 1999
__________
Serial No. J-106-15
__________
Printed for the use of the Committee on the Judiciary
U.S. GOVERNMENT PRINTING OFFICE
63-464 WASHINGTON : 2000
COMMITTEE ON THE JUDICIARY
ORRIN G. HATCH, Utah, Chairman
STROM THURMOND, South Carolina PATRICK J. LEAHY, Vermont
CHARLES E. GRASSLEY, Iowa EDWARD M. KENNEDY, Massachusetts
ARLEN SPECTER, Pennsylvania JOSEPH R. BIDEN, Jr., Delaware
JON KYL, Arizona HERBERT KOHL, Wisconsin
MIKE DeWINE, Ohio DIANNE FEINSTEIN, California
JOHN ASHCROFT, Missouri RUSSELL D. FEINGOLD, Wisconsin
SPENCER ABRAHAM, Michigan ROBERT G. TORRICELLI, New Jersey
JEFF SESSIONS, Alabama CHARLES E. SCHUMER, New York
BOB SMITH, New Hampshire
Manus Cooney, Chief Counsel and Staff Director
Bruce A. Cohen, Minority Chief Counsel
(ii)
C O N T E N T S
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STATEMENTS OF COMMITTEE MEMBERS
Page
Hatch, Hon. Orrin G., U.S. Senator from the State of Utah.....1, 75, 77
Thurmond, Hon. Strom, U.S. Senator from the State of South
Carolina....................................................... 4
Sessions, Hon. Jeff, U.S. Senator from the State of Alabama...... 5
Leahy, Hon. Patrick J., U.S. Senator from the State of Vermon10, 14, 78
Ashcroft, Hon. John, U.S. Senator from the State of Missouri..... 17
Feingold, Hon. Russell D., U.S. Senator from the State of
Wisconsin...................................................... 19
Smith, Hon. Bob, U.S. Senator from the State of New Hampshire.... 56
CHRONOLOGICAL LIST OF WITNESS
april 20, 1999
Panel consisting of Richard D. Parker, Williams professor of law,
Harvard Law School, Cambridge, MA; Patrick H. Brady, chairman,
board of directors, Citizens Flag Alliance, and medal of honor
recipient, Sumner, WA; Gary E. May, associate professor of
social work, University of Southern Indiana, Evansville, IN;
Maribeth Seely, fifth grade teacher, Sandystone-Walpack School,
Branchville, NJ; Rev. Nathan D. Wilson, executive director,
West Virginia Council of Churches, Charleston, WV; and Edward
D. Baca, former chief, National Guard Bureau, Albuquerque, NM.. 34
april 28, 1999
Statement of Hon. J. Robert Kerrey, U.S. Senator from the State
of Nebraska.................................................... 86
Statement of Hon. Chuck Hagel, U.S. Senator from the State of
Nebraska....................................................... 88
Statement of Hon. John H. Chafee, U.S. Senator from the State of
Rhode Island................................................... 90
Statement of Hon. John McCain, U.S. Senator from the State of
Arizona........................................................ 95
Statement of Hon. John Glenn, Former U.S. Senator from the State
of Ohio........................................................ 97
Statement of Hon. Max Cleland, U.S. Senator from the State of
Georgia........................................................ 103
Statement of Randolph D. Moss, Acting Assistant Attorney General,
Office of Legal Counsel, U.S. Department of Justice,
Washington, DC................................................. 112
ALPHABETICAL LIST AND MATERIALS SUBMITTED
Baca, Edward D.: Testimony....................................... 54
Brady, Patrick H.:
Testimony.................................................... 41
Prepared statement........................................... 42
Chafee, Hon. John H.:
Testimony.................................................... 90
Congressional Research Service Report of flag burning/
desecration in the Unites States, dated Apr. 28, 1999...... 92
Cleland, Hon. Max: Testimony..................................... 103
Feingold, Hon. Russell D.: Submitted the guidelines developed by
Citizens for the Constitution, `` `Great Extraordinary
Occasions': Developing Guidelines for Constitutional Change''.. 21
Glenn, Hon. John:
Testimony.................................................... 97
Prepared statement........................................... 100
Hagel, Hon. Chuck: Testimony..................................... 88
Hatch, Hon. Orrin G.:
Submitted the prepared statement of Randolph D. Moss......... 6
List of flag desecration incidents since Mar. 24, 1994....... 104
U.S. Senate rollcall vote on H.R. 2978, dated Oct. 5, 1989... 111
Kerrey, Hon. J. Robert: Testimony................................ 86
Leahy, Hon. Patrick J.:
Submitted a letter from Dennis K. Burke, Acting Assistant
Attorney General, to Senators Hatch and Leahy, dated Apr.
20, 1999................................................... 65
Prepared statements of:
Robert H. Cole, professor of law emeritus at the
University of California School of Law at Berkeley..... 80
Robert D. Evans on behalf of the American Bar Association 84
May, Gary E.: Testimony.......................................... 44
McCain, Hon. John: Testimony..................................... 95
Moss, Randolph D.:
Testimony.................................................... 112
Prepared statement........................................... 121
Parker, Richard D.:
Testimony.................................................... 34
Prepared statement........................................... 36
Seely, Maribeth: Testimony....................................... 47
Wilson, Nathan D.:
Testimony.................................................... 49
Prepared statement........................................... 51
APPENDIX
S.J. Res. 14, a bill proposing an amendment to the Constitution
of the United States authorizing Congress to prohibit the
physical desecration of the flag of the United States.......... 127
Questions and Answers
april 20, 1999
Responses of Maj. Gen. Patrick Brady to questions from the Senate
Committee on the Judiciary..................................... 129
Responses of Richard D. Parker to questions from Senators:
Hatch........................................................ 132
Leahy........................................................ 134
Thurmond..................................................... 134
Feingold..................................................... 134
Responses of Gary E. May to questions from Senators:
Hatch........................................................ 135
Leahy........................................................ 136
Response of Maribeth Seely to a question from Senator Hatch...... 136
Response of Lt. Gen. Edward D. Baca to a question from Senator
Leahy.......................................................... 137
Additional Submissions for the Record
april 20, 1999
Letter from Robert D. Evans, The American Bar Association, to
Senator Hatch, dated Apr. 20, 1999............................. 138
Prepared statements of:
Walter Cronkite.............................................. 138
Keith A. Kreul............................................... 139
People for the American Way.................................. 140
Letters From:
William Van Alstyne, Duke University, to Senator Hatch, dated
Mar. 31, 1999.............................................. 142
Richard D. Parker, Harvard Law School, to Senator Hatch,
dated Apr. 21, 1999........................................ 147
Paul G. Cassell, University of Utah, to Senator Hatch, dated
Mar. 11, 1999.............................................. 149
Robert E. Bush, Congressional Medal of Honor Society, United
States of America, Olympia, WA............................. 150
Remarks of Ray Davis on behalf of Maj. Gen. Patrick Brady.... 150
Col. Bud Day, dated Apr. 29, 1997............................ 151
Michael J. Fitzmaurice, dated Apr. 24, 1997.................. 151
Gilbert Gallegos, national president, Fraternal Order of
Police, National Legislative Program, dated Apr. 13, 1999.. 151
Rodolpho P. Hernandez, ``What the Flag Means to Me''......... 152
Harold L. Miller, national commander, The American Legion,
dated Apr. 14, 1999 and Apr. 23, 1999....................152, 153
Hiroshi Miyamura............................................. 154
Wanda S. North, Salon National La Boutique, Dated Mar. 13,
1999....................................................... 154
Richard D. Parker, Harvard Law School, dated Apr. 23, 1999... 154
Stephen B. Presser, Raoul Berger professor of legal history,
Northwestern University School of Law, dated Mar. 6, 1999.. 156
Roger W. Putnam, president/CEO, Noncommissioned Officers
Association of the United States of America, dated Apr. 15,
1999....................................................... 158
Carl Swisher, the Ohio American Legion, dated Mar. 10, 1999.. 159
H. Norman Schwarzkopf, dated Apr. 5, 1999.................... 159
Various religious leaders, dated Apr. 29, 1999............... 160
Prepared statements of:
Legion Assails Flag Protection Amendment Detractors.......... 162
Walter D. Ehlers of Buena Park, CA........................... 163
General Livingston........................................... 164
Stephen B. Presser........................................... 164
Carl L. Sitter, ``What My Flag Means To Me''................. 170
Richard K. Sorenson.......................................... 170
James D. Staton.............................................. 170
Article: Submitted by George E. Whalen, ``Flag Means More
Than Just Colorful Fibers''................................ 172
AN AMENDMENT TO THE CONSTITUTION OF THE UNITED STATES, AUTHORIZING
CONGRESS TO PROHIBIT THE PHYSICAL DESECRATION OF THE FLAG OF THE UNITED
STATES
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TUESDAY, APRIL 20, 1999
U.S. Senate,
Committee on the Judiciary,
Washington, DC.
The committee met, pursuant to notice, at 10:05 a.m., in
room SD-226, Dirksen Senate Office Building, Hon. Orrin G.
Hatch (chairman of the committee) presiding.
Also present: Senators Ashcroft, Smith, Leahy, Kennedy, and
Feingold.
OPENING STATEMENT OF HON. ORRIN G. HATCH, A U.S. SENATOR FROM
THE STATE OF UTAH
The Chairman. Good morning. This morning we are going to
hear testimony concerning Senate Joint Resolution 14, the Flag
Protection Amendment. This amendment is very important because
the subject matter--the American flag--touches each of us on
this committee very deeply.
I apologize to the administration. They pulled their
witness today because, as I understand it, they wanted him to
be on a separate panel, and I think we should have accommodated
him. So we will do that at the next hearing, and we will
accommodate the administration's witness on a separate panel
and do it the right way. So I apologize to the administration
this morning.
Let me just say that many of the flags you see displayed
have special stories. These flags in the front here, we have a
flag carried by the Rainbow Division in World War I; we have a
flag flown over the American base in Russia during World War I;
we have a flag made by a POW in World War II; and we have the
flag that American troops carried when they liberated Kuwait.
Americans paid a high price for these flags and for the
ideas and the country that these flags symbolize.
Let me begin by emphasizing that every member of this
committee is a patriotic American. Every member of this
committee loves the freedoms established by our Constitution.
And every member of this committee loves the American flag that
symbolizes all of those freedoms.
Among the chief freedoms established by our Constitution
and symbolized by the flag is the freedom of speech. Because
our forefathers were wise enough to realize that freedom to
speak and write one's opinions for or against particular issues
was crucial to a free and lasting Republic, they took a stand
in favor of free speech. They amended the Constitution to
provide that ``Congress shall make no law * * * abridging the
freedom of speech.''
The American flag is the preeminent symbol of the broad
freedoms established by our Constitution, including the freedom
of speech. Throughout our history, the American flag has played
a unique role in symbolizing not a partisan position on a
particular issue, but the love of liberty and the love of
country felt by the American people and by people all around
this world.
The American people have expressed their love of liberty by
the price that they have paid for it. We have sent our
soldiers, sailors, airmen, and marines into harm's way from
Gettysburg to Iwo Jima, to Desert Storm, to Kosovo--each time
under the American flag. We celebrate our love of independence
with parades featuring the American flag, and each morning our
school children pledge allegiance to the American flag.
But the love of liberty does not reside merely on a
battlefield, in a parade, or on a school yard. As Judge Learned
Hand said, ``Liberty lies in the hearts of men and women; when
it dies there, no constitution, no law, no court can save it.''
The American flag symbolizes the love of liberty that
Americans hold so dear in all of our hearts. It is the
Government's special responsibility to foster and protect that
love of liberty. When, however, the American Government itself
sanctions the physical desecration of the American flag, it
also sanctions the destruction of Americans' love and respect
for liberties the flag stands for. The picture of the American
Government sanctioning the destruction of its own preeminent
symbol is worth a thousand shameful words. If the Government
sanctions the destruction of the flag, the Government destroys,
little by little, the love of liberty that the flag instills in
us all.
Without the crucial love for liberty, the flag could become
a mocking reminder of the freedoms that a people used to hold
dear and a country that a people used to believe in.
Some say a statute would do the trick. I wish it would. In
my view, however, it is clear that we can only protect the flag
and its underlying liberties with a constitutional amendment
that restores to the people's elected representatives that
right to prohibit the physical desecration of the flag, while
maintaining the right of each American to speak his or her
opinions at a rally, to write his opinions to his or her
newspaper, and to vote his or her opinions at the ballot box.
Before and after the ratification of the first amendment,
the States prohibited the physical desecration of the American
flag. With State enforcement, we had little need of Federal
cases addressing the right of people to protect the flag from
physical destruction and desecration, because that right was
founded in State and common law and understood to be consistent
with freedom of speech.
Then, in the 1989 case of Texas v. Johnson, a 5-4 vote of
the Supreme Court broke with over 200 years of precedent
allowing restrictions on destructive conduct. The narrowest
majority extended free speech protection to a destructive
conduct.
Shocked by this ill-advised decision, Congress enacted the
Flag Protection Act of 1989. In fact, Senator Biden, then the
chairman of the Judiciary Committee, played a lead role in this
effort, and he and Senator Leahy supported the Act as a
generally content-neutral and constitutional means of
protecting the American flag. Several scholars opined that the
Act would pass constitutional muster. Indeed, the statute would
have passed muster under traditional first amendment
jurisprudence. In United States v. Eichman, however, the
Supreme Court struck down the Flag Protection Act of 1989,
rejecting the statutory solution.
When presented with the option of protecting the flag with
an amendment or with a statute, the Supreme Court has made a
choice for us--made the choice for us, really. Proposed flag
protection statutes could not begin to pass constitutional
muster under the Supreme Court's new precedent because the
statute specifically targets the American flag for protection
and relies on the ``fighting words'' doctrine for its validity.
While there are very few persons who say that a statute is
viable, the clear reality is that it is not. Thus, the only
legally effective means of protecting the physical integrity of
the American flag is a constitutional amendment.
The amendment I propose contains only 17 words: ``The
Congress shall have power to prohibit the physical desecration
of the flag of the United States.''
This year, with a record total of 57 original cosponsors,
Senator Cleland and I introduced the amendment as Senate Joint
Resolution 14 on March 17. The amendment has already been
called for by 49 States and has the support of nearly 80
percent of the American people.
The amendment, however, is not self-executing in the sense
that it does not describe the specific types of physical
destruction that will be prohibited. Instead, that task is left
to Congress. Over 90 Members of the Senate, including the
ranking member and Senator Biden, voted for the Flag Protection
Act of 1989 because they believed it was clear and
constitutional. So be it. The statute remains clear, and this
amendment will make it constitutional.
I propose that we use the Flag Protection Act of 1989, now
codified at 18 U.S.C. 700 as the implementing legislation for
the Flag Protection Amendment. Although I did not support this
bill in 1989 because I correctly believed it would be struck
down under the new rule announced in Texas v. Johnson, 91 other
Senators did.
Thus, all of the arguments in favor of that statute--its
form of content neutrality with respect to particular issues,
its narrowly tailored application, and its complete respect for
the freedom of speech, both oral and written--can come to
fruition if this amendment is ratified. I agree with my
colleagues that we need not alter the Bill of Rights. Instead,
we should restore its meaning as it existed for more than 200
years.
I know that members on both sides of the aisle have deep
feelings on this issue, as do I. Freedom of speech is essential
to the proper functioning of our democracy, and the love of
that freedom, as symbolized by the American flag, is essential
to the long-term survival of our democracy, at least in my
opinion. By allowing the American people to vote on this
amendment, we will not only affirm the right to speak, write,
and vote one's opinions, but also to protect the love of those
freedoms that our forefathers died for.
Now, before I turn to Senator Leahy for his opening
statement, I want to introduce some very special guests in the
audience. We are very fortunate to have with us a number of
recipients of this country's highest award for courage and
bravery in the field of battle. As I call your name, gentlemen,
please stand.
The members of the Medal of Honor recipients of the flag
here with us today include: from the State of Washington,
General Pat Brady, a distinguished Vietnam veteran, if you will
stand and remain standing; from the State of New Mexico, Mr.
Hiroshi Miyomura, a distinguished veteran of the Korean
Conflict; from the State of West Virginia, Mr. Woody Williams,
a distinguished veteran of the Battle of Iwo Jima; from the
State of Colorado, Mr. Raymond Murphy, a distinguished veteran
of the Korean Conflict; and from my own home State of Utah, Mr.
George Whalen, a distinguished veteran of the Battle of Iwo
Jima.
We are really honored to have all of you here today, and we
are especially honored to have you support this amendment.
These bravest of Americans support this amendment to
protect the physical integrity of this country's greatest
symbol, and I think we owe these gentlemen a hand in gratitude
for their service.
[Applause.]
The Chairman. At this point, I would like to enter into the
record the statements of Senators Thurmond and Sessions.
[The prepared statements of Senators Thurmond and Sessions
follow:]
Prepared Statement of Hon. Strom Thurmond, a U.S. Senator From the
State of South Carolina
Mr. Chairman: I am very pleased that we are considering S.J. Res.
14, the Constitutional amendment to protect the flag of the United
States. I commend you, Mr. Chairman, for the leadership you have
provided in our ongoing effort to enact this most essential amendment.
We have considered this issue in the Judiciary Committee and on the
Senate Floor many times in the past decade. I have fought to achieve
Constitutional protection for the flag ever since the Supreme Court
first legitimized flag burning in the case of Texas v. Johnson in 1989.
In our history, the Congress has been very reluctant to amend the
Constitution, and I agree with this approach. However, the Constitution
provides for a method of amendment, and there are a few situations
where an amendment is warranted. This is one of them.
Some have said we should not protect the flag because totalitarian
regimes like China protect theirs. The United States is not the only
democracy that has protected the flag. Others such as the Democratic
Republics of Germany, Belgium, and Denmark protect the flag.
The only real argument against this amendment is that it interferes
with an absolute interpretation of the free speech clause of the First
Amendment. However, restrictions on speech already exist through
Constitutional interpretation. In fact, before the Supreme Court ruled
on this issue, the Federal government and the States believed that flag
burning was not Constitutionally-protected speech. The Federal
government and almost every state had laws prohibiting desecration that
were thought to be valid before the Supreme Court ruled otherwise in
1989.
During moments of despair and crisis in our history, our people
have turned to the flag as a symbol of National unity. It represents
our values, ideals and proud heritage.
American soldiers have put their lives on the line to defend what
the flag represents. We have a duty to honor their sacrifices by giving
the flag the protection it once had, and clearly deserves today.
Flag burning is intolerable. We have no obligation to permit this
nonsense. Have we focused so much on the rights of the individual that
we have forgotten the rights of the people?
We cannot allow ourselves to be deterred in our efforts to protect
the flag. I am firmly committed to this fight until we are successful.
__________
Prepared Statement of Hon. Jeff Sessions, a U.S. Senator From the State
of Alabama
I would like to begin by thanking the Chairman of this Committee,
Senator Hatch, for calling this hearing today to discuss the
legislation he has introduced which, if passed by two-thirds of the
House and Senate and ratified by three-quarters of the States, would
amend the United States Constitution so that Congress is expressly
given the authority to prevent the physical desecration of the American
flag. I am proud to be a cosponsor of this legislation, and I
appreciate the impressive panel of witnesses that has assembled to
discuss this issue.
At the outset, let me say that I do not take proposals to amend the
Constitution lightly. I believe that one of the strengths of our
Constitution is that it has been a relatively fixed and stable document
since its ratification in 1789. I believe the fact that it has been
amended only 27 times in its history is testament to the strength and
clarity of vision our Founding Fathers had for this Republic. In fact
the stability and consistency of our Constitution over time has, in my
opinion, helped safeguard the rights and protections afforded to every
citizen of this country. It is when Constitutions are made subject to
sweeping change, whether through constant amendment or activist and
excessive judicial interpretations, that rights begin to be jeopardized
and the text of this grand governing document begins to lose its
meaning.
This issue provides us with an important opportunity to use the
legitimate and Constitutionally provided amendment process. The
amendment process, for those who love the Constitution, is the way to
change the document. It should not be changed simply by judicial re-
interpretation of the words. As I see it, we are here today because of
a striking judicial misinterpretation of the Constitution by the
Supreme Court and only a Constitutional amendment can fix the problem.
I believe that the United States Supreme Court, in reversing over 200
years of precedent, was wrong when in 1989 it decided by a 5-4 vote in
the Texas v. Johnson case that the 1st Amendment granted Constitutional
protection to those who wished to burn American flags. It is clearly a
stretch to hold, as that court did, that the burning of the flag was
conduct ``sufficiently imbued with elements of communication'' to
implicate the first amendment. Rather, I think the dissenters in this
case had it right. On this point the words of Chief Justice Rehnquist,
writing in dissent, were especially eloquent. The Chief Justice wrote:
Far from being a case of ``one picture being worth a thousand
words,'' flag burning is the equivalent of an inarticulate
grunt or roar that, it seems fair to say, is most likely to be
indulged in not to express any particular idea but to
antagonize others. Only five years ago we said in City Council
of Los Angeles v. Taxpayers for Vincent that ``the First
Amendment does not guarantee the right to employ every
conceivable method of communication at all times and in all
places.'' The Texas statute deprived Johnson of only one rather
inarticulate symbolic form of protest--a form of protest that
was profoundly offensive to many--and left him with a full
panoply of other symbols and every conceivable form of verbal
expression to express his deep disapproval of national policy.
(491 U.S. 432)
Additionally, the Chief Justice pointed out the ultimate, tragic irony
caused by the majorities decision. He wrote:
The Court decides that the American flag is just another
symbol, about which not only must opinions pro and con be
tolerated, but for which the most minimal public respect may
not be enjoined. The government may conscript men into the
Armed Forces where they must fight and perhaps die for the
flag, but the government may not prohibit the public burning of
the banner under which they fight.
I think that this is a somber point, and one upon which the
members of this Committee should reflect. It has relevance not
only for all of those who have bravely answered their countries
call in the past, but also for all of those men and women who
are, even as we speak, risking their lives in service to this
country throughout the world.
Is this amendment necessary? I say. Yes, it is, for three
reasons. First, good and decent Americans throughout this
country care about this subject very deeply. Through their
letters and phone calls they have urged Congress to enact
measures to protect the flag. Second, this amendment will do no
harm to our notions of free speech but will express our
reverence for our unique symbol of freedom, the American flag.
Finally, it will provide the people of the United States with
the opportunity to use the legitimate and Constitutionally
provided amendment process to express themselves, through State
ratification, on this important issue.
That concludes my opening statement. I would like to
express my thanks to all of the witnesses who will be
testifying today, and I look forward to hearing your
statements.
The Chairman. Now, we had planned to hear from the
Department of Justice today. They informed us of their desire
to provide testimony at today's hearing on Friday afternoon. I
have been informed that, despite our effort to accommodate them
by permitting them to testify first, they have pulled their
witness, Acting Assistant Attorney General Randolph Moss. The
Department believes that it should have its own panel, and we
will grant that.
I would note that the Department's own written testimony
concedes that the testimony they would have provided today is
substantially similar to the testimony given in 1995.
Nevertheless, I believe we need to hear from the Department of
Justice. It is unfortunate that they could not make it today,
and I fail to see why the Department really can't have Mr. Moss
appear on the same panel with all of you, with leaders like
General Brady, a Medal of Honor recipient. And setting aside
the fact that the Department has testified on panels with other
witnesses on several occasions over the years, I plan to
accommodate the Department, if at all possible, by giving them
another opportunity to testify before the committee because we
will have a subsequent hearing so that Senator Glenn and other
members of the Senate and House will be able to testify.
So, without objection, we will make the Department's
testimony part of the record today, and let me just say that I
am disappointed that they couldn't be here, but I think that
was something that we should have remedied before now.
[The prepared statement of Mr. Moss follows:]
Prepared Statement of Randolph D. Moss
Mr. Chairman, and Members of the Committee:*
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* In 1995, Walter Dellinger, Assistant Attorney General, Office of
Legal Counsel, provided substantially similar testimony to the
Subcommittee on the Constitution, Federalism, and Property Rights of
the United States Senate Judiciary Committee regarding S.J. Res. 31, A
Bill Proposing an Amendment to the Constitution of the United States to
Grant Congress and the States the Power to Prohibit the Physical
Desecration of the Flag of the United States.
---------------------------------------------------------------------------
As you know, in 1989 the Supreme Court held in Texas v. Johnson \1\
that a State could not, consistent with the First Amendment, enforce a
statute criminalizing flag desecration against a demonstrator who
burned an American flag. In 1990, in United States v. Eichman,\2\ the
Court held that the First Amendment prohibited the conviction of
demonstrators for flag burning under a federal statute that
criminalized mutilating, defacing, or physically defiling an American
flag.
---------------------------------------------------------------------------
\1\ 491 U.S. 397 (1989).
\2\ 496 U.S. 310 (1990).
---------------------------------------------------------------------------
For nine years, then, the flag has been left without any statutory
protection against desecration. For nine years, one thing, and only one
thing, has stood between the flag and its routine desecration: the fact
that the flag, as a potent symbol of all that is best about our
Country, is justly cherished and revered by nearly all Americans.
Chairman Hatch has eloquently described the flag's status among the
American people:
The American flag represents in a way nothing else can, the
common bond shared by a very diverse people. Yet whatever our
differences of party, politics, philosophy, race, religion,
ethnic background, economic status, social status, or
geographic region, we are united as Americans. That unity is
symbolized by a unique emblem, the American flag.\3\
---------------------------------------------------------------------------
\3\ 141 Cong. Rec. S4275 (daily ed. Mar. 21, 1995).
It is precisely because of the meaning the flag has for virtually
all Americans that the last nine years have witnessed no outbreak of
flag burning, but only a few isolated instances. If proof were needed,
we have it now: with or without the threat of criminal penalties, the
flag is amply protected by its unique stature as an embodiment of
national unity and ideals.
It is against this background that one must assess the need for a
constitutional amendment (S.J. Res. 14) that would provide Congress
with the ``power to prohibit,'' and presumably impose criminal
punishment for, the ``physical desecration'' of the American flag. Such
an amendment would run counter to our traditional resistance, dating
back to the time of the Founders, to resorting to the amendment
process. Moreover, the amendment, if passed, would for the first time
in our history limit the individual liberties protected by the Bill of
Rights, adopted over two centuries ago. Whether other truly exigent
circumstances justify altering the Bill of Rights is a question we can
put to one side here. For you are asked to assume the risk inherent in
crafting a first-time exception to the Bill of Rights in the absence of
any meaningful evidence that the flag is in danger of losing its
symbolic value. Moreover, the proposed amendment before you could
create legislative power of uncertain dimension to override the First
Amendment and other constitutional guarantees. For these reasons, the
proposed amendment--and any other proposal to amend the Constitution in
order to punish isolated acts of flag burning--should be rejected by
this Congress.
i.
At the outset, and out of an abundance of caution, I would like to
emphasize that the Administration's view on the wisdom of the proposed
amendment does not in any way reflect a lack of appreciation for the
proper place of the flag in our national community. The President
always has and always will condemn in the strongest of terms those who
would denigrate the symbol of our Country's highest ideals. The
President's record and statements reflect his long-standing commitment
to protection of the American flag, and his profound abhorrence of flag
burning and other forms of flag desecration.
To conclude that flag desecration is abhorrent and that it should
be resoundingly and unequivocally condemned, however, is not to
conclude that we should for the first time in our Nation's history cut
back on the individual liberties protected in the Bill of Rights. As
James Madison observed at the founding, amending the Constitution
should be reserved for ``great and extraordinary occasions.'' \4\ This
caution takes on unique force, moreover, when we think of restricting
the Bill of Rights, for its guarantees are premised on an unclouded
sense of permanence, a sense that they are inalienable, a sense that we
as a society are committed to the proposition that the fundamental
protections of the Bills of Rights should be left alone. It is against
this background that the Administration has concluded that the isolated
incidents of flag desecration that have occurred since 1989 do not
justify amending the Constitution in this significant respect.
---------------------------------------------------------------------------
\4\ The Federalist No. 49, at 314 (James Madison) (Clinton Rossiter
ed., 1961).
---------------------------------------------------------------------------
ii.
The text of the proposed amendment is short enough to quote in
full: ``The Congress shall have power to prohibit the physical
desecration of the flag of the United States.'' \5\ The scope of the
amendment, however, is anything but clear, and it fails to state
explicitly the degree to which it overrides other constitutional
guarantees. Accordingly, even if it were appropriate to create an
exception to the Bill of Rights in some limited manner, it is entirely
unclear how much of the Bill of Rights the proposed amendment would
trump.
---------------------------------------------------------------------------
\5\ S.J. Res. 14. See also H.J. Res. 33 (same).
---------------------------------------------------------------------------
By its terms, the proposed amendment does no more than confer
affirmative power upon Congress to legislate with respect to the flag.
Its wording is similar to the power-conferring clauses found in Article
I, Section 8 of the Constitution: ``Congress shall have power to lay
and collect taxes,'' for instance, or ``Congress shall have power * * *
to regulate commerce * * * among the several states.'' Like those
powers, and all powers granted government by the Constitution, the
authority given by the proposed amendment would seem to be limited by
the Bill of Rights and the Fourteenth Amendment.
The text of the proposed amendment does not purport to exempt the
exercise of the power conferred from the constraints of the First
Amendment or any other constitutional guarantee of individual rights.
Read literally, the amendment would not alter the result of the
decisions in Johnson or Eichman, holding that the exercise of state and
congressional power to protect the symbol of the flag is subject to
First and Fourteenth Amendment limits. Instead, by its literal text, it
would simply and unnecessarily make explicit the governmental power to
legislate in this area that always has been assumed to exist.
To give the proposed amendment meaning, then, we must read into it,
consistent with its sponsors' intent, at least some restriction on the
First Amendment freedoms identified in the Supreme Court's flag
decisions. It is profoundly difficult, however, to identify just how
much of the First Amendment and the rest of the Bill of Rights is
superseded by the amendment. Once we have departed, by necessity, from
the proposed amendment's text, we are in uncharted territory, and faced
with genuine uncertainty as to the extent to which the amendment will
displace the protections enshrined in the Bill of Rights.
We do not know, for instance, whether the proposed amendments is
intended, or would be interpreted, to authorize enactments that
otherwise would violate the due process ``void for vagueness''
doctrine. In Smith v. Goguen,\6\ the Court reversed the conviction of a
defendant who had sewn a small flag on the seat of his jeans, holding
that a state statute making it a crime to ``treat contemptuously'' the
flag was unconstitutionally vague. We cannot be certain that the
vagueness doctrine applied in Smith would limit as well prosecutions
brought under laws enacted pursuant to the proposed amendment.
---------------------------------------------------------------------------
\6\ 415 U.S. 566 (1974).
---------------------------------------------------------------------------
Nor is this a matter of purely hypothetical interest, unlikely to
have much practical import. The proposed amendment, after all,
authorizes laws that prohibit ``physical desecration'' of the flag, and
``desecration'' is not a term that readily admits of objective
definition. On the contrary, ``desecrate'' is defined to include such
inherently subjective meanings as ``profane'' and even ``treat
contemptuously'' itself. Thus, a statute tracking the language of the
amendment and making it a crime to ``physically desecrate'' an American
flag would suffer from the same defect as the statute at issue in
Smith: it would ``fail [ ] to draw reasonably clear lines between the
kinds of nonceremonial treatment that are criminal and those that are
not.'' \7\
---------------------------------------------------------------------------
\7\ 415 U.S. at 574.
---------------------------------------------------------------------------
The term ``flag of the United States'' is similarly ``unbounded,''
\8\ and by itself provides no guidance as to whether it reaches
unofficial as well as official flags, or pictures or representations of
flags created by artists as well as flags sold or distributed for
traditional display. Indeed, testifying in favor of a similar amendment
in 1989, then-Assistant Attorney General William Barr acknowledged that
the word ``flag'' is so elastic that it can be stretched to cover
everything from cloth banners with the characteristics of the official
flag, as defined by statute,\9\ to ``any picture or representation'' of
a flag, including ``posters, murals, pictures, [and] buttons.''\10\ And
while a statute enacted pursuant to the amendment could attempt a
limiting definition, it need not do so; the amendment would authorize
as well a statute that simply prohibited desecration of ``any flag of
United States.'' Again, such a statute would implicate the vagueness
doctrine applied in Smith, and raise in any enforcement action the
question whether the empowering amendment overrides due process
guarantees.
---------------------------------------------------------------------------
\8\ Id. at 575.
\9\ See 4 U.S.C. Sec. 1.
\10\ Measures to Protect the Physical Integrity of the American
Flag: Hearings on S. 1338, H.R. 2978, and S.J. Res. 180 Before the
Senate Comm. on the Judiciary, 101st Cong., 1st Sess. 82-85 (1989)
[``1989 Hearings''].
---------------------------------------------------------------------------
Even if we are prepared to assume, or the language of the amendment
is modified to make clear, that the proposed amendment would operate on
the First Amendment alone, important questions about the amendment's
scope remain. Specifically, we still face the question whether the
powers to be exercised under the amendment would be freed from all, or
only some, First Amendment constraints, and, if the latter, how we will
know which constraints remain applicable.
An example may help to illuminate the significance of this issue.
In R.A.V. v. City of St. Paul,\11\ decided in 1992, the Supreme Court
held that even when the First Amendment permits regulation of an entire
category of speech or expressive conduct, it does not necessarily
permit the government to regulate a subcategory of the otherwise
proscribable speech on the basis of its particular message. A
government acting pursuant to the proposed amendment would be able to
prohibit all flag desecration,\12\ but, if R.A.V. retains its force in
this context, a government could not prohibit only those instances of
flag desecration that communicated a particularly disfavored view.
Statutes making it a crime--or an enhanced penalty offense--to
``physically desecrate a flag of the United States in opposition to
United States military actions,'' for instance, would presumably remain
impermissible.
---------------------------------------------------------------------------
\11\ 505 U.S. 377 (1992).
\12\ Even a statute that prohibited all flag desecration would be
in tension with the principle of R.A.V. Although a few acts done with a
flag could be considered a ``desecration'' in all contexts, that would
not be the case with burning, for example. Only some burnings could be
prohibited by statutes adopted under the proposed amendment. Respectful
burning of the flag will remain legal after the amendment's adoption as
before. See 36 U.S.C. Sec. 176(k) (``The flag, when it is in such
condition that it is no longer a fitting emblem for display, should be
destroyed in a dignified way, preferably by burning.'') What may be
prohibited is only that destruction of a flag that communicates a
particular message, one of disrespect or contempt. The conclusion that
a particular act of burning is a ``desecration'' may require in most
instances consideration of the particular message being conveyed.
---------------------------------------------------------------------------
This result obtains, of course, if and only if the proposed
amendment is understood to confer powers that are limited by the R.A.V.
principle. If, on the other hand, the proposed amendment overrides the
whole of the First Amendment, or overrides some select though
unidentified class of principles within which R.A.V. falls, then there
remains no constitutional objection to the hypothetical statute posited
above. This is a distinction that makes a difference, as I hope this
example shows, and it should be immensely troubling to anyone
considering the amendment that its text leaves us with no way of
knowing whether the rule of R.A.V.--or any other First Amendment
principle--would limit governmental action if the amendment became part
of the Constitution.\13\
---------------------------------------------------------------------------
\13\ Another proposed amendment, contained in H.J. Res. 5,
provides: ``The Congress and the States shall have power to prohibit
the act of desecration of the flag of the United States and to set
criminal penalties for that act.'' Not only does the phrase ``act of
desecration'' appear to be broader, and more vague, than the term
``physical desecration'' in S.J. Res. 14 and H.J. Res. 33, but H.J.
Res. 5 also grant the power of prohibition to the fifty States and an
uncertain number of local governments. That raises, of course, the
interpretive question whether state legislatures acting under the
amendment would remain bound by state constitutional free speech
guarantees, or whether the proposed amendment would supersede state as
well as federal constitutional provisions.
---------------------------------------------------------------------------
iii.
I have real doubts about whether these interpretive concerns could
be resolved fully by even the most artful of drafting. Any effort to
constitutionalize an exception to the Bill of Rights necessarily will
produce significant interpretive difficulties and uncertainty, as the
courts attempt to reconcile a specific exception with the general
principles that remain. But even assuming, for the moment, that all of
the interpretive difficulties of this amendment could be cured, it
would remain an ill-advised departure from a constitutional history
marked by a deep reluctance to amend our most fundamental law. The Bill
of Rights was ratified in 1791. Since that time, over two hundred years
ago, we have not once amended the Bill of Rights. And this is no
historical accident, nor a product only of the difficulty of the
amendment process itself. Rather, our historic unwillingness to tamper
with the Bill of Rights reflects a reverence for the Constitution that
is both entirely appropriate and fundamentally at odds with turning
that document into a forum for divisive political battles. Indeed, part
of the unique force, security, and stature of our Bill of Rights
derives from the widely-shared belief that it is permanent and
enduring.
The Framers themselves understood that resort to the amendment
process was to be sparing and reserved for ``great and extraordinary
occasions.'' 14 In The Federalist Papers, James Madison
warned against using the amendment process as a device for correcting
every perceived constitutional defect, particularly when public
passions are inflamed. He stressed that ``frequent appeals would, in
great measure, deprive the government of that veneration which time
bestows on everything, and without which perhaps the wisest and freest
governments would not possess the requisite stability.''15
---------------------------------------------------------------------------
\14\ The Federalist No. 49, at 314 (James Madison).
\15\ See id. at 314-17. See also 1989 Hearings at 720-23 (statement
of Professor Henry Paul Monaghan, Columbia University School of Law).
---------------------------------------------------------------------------
The proposed amendment cannot be reconciled with this fundamental
and historic understanding of the integrity of the Constitution. I
think perhaps Charles Fried, who served with distinction as Solicitor
General under President Reagan, made the point best when he testified
against a similar proposed amendment in 1990:
The flag, as all in this debate agree, symbolizes our nation,
its history, its values. We love the flag because it symbolizes
the United States; but we must love the Constitution even more,
because the Constitution is not a symbol. It is the thing
itself.16
---------------------------------------------------------------------------
\16\ Proposing an Amendment to the Constitution Authorizing the
Congress and the States to Prohibit the Physical Desecration of the
American Flag: Hearing Before the Senate Comm. on the Judiciary, 101st
Cong., 2d Sess. 110 (1990).
---------------------------------------------------------------------------
iv.
Americans are free today to display the flag respectfully, to
ignore it entirely, or to use it as an expression of protest or
reproach. By overwhelming numbers, Americans have chosen the first
option, and display the flag proudly. And what gives this gesture its
unique symbolic meaning is the fact that the choice is freely made,
uncoerced by the government. Were it otherwise--were, for instance,
respectful treatment of the flag the only choice constitutionally
available--then the respect paid the flag by millions of Americans
would mean something different and perhaps something less.
The Chairman. With that, we will turn to Senator Leahy.
Senator Leahy. I think in all fairness the record should
show that the Department has always--in the 25 years that I
have been here, under both Republican and Democratic chairmen
of the committee, and under Republican and Democratic
administrations, the Department has always on issues,
constitutional or otherwise, been allowed at their request to
testify on their own. That has always been the procedure. The
only person here in the room that has been here longer than I
have is Senator Kennedy. I think he would say also, again, with
both Republican and Democratic administrations, that has always
been the procedure.
The other procedure, of course, is that if Members of the
Senate wish to testify, they go first.
The Chairman. We will abide by that.
Senator Leahy. Then followed by Members of the House, and I
am sorry that Senators who did want to testify this morning
were told that it would not be convenient for them to. But I
understand they are going to testify later, including one,
Senator Kerrey of Nebraska, who is also a Medal of Honor
winner, whom the Senate recognized earlier this year with a
resolution, unanimously passed, commending his heroism.
We have Senators, one in favor of the amendment, one
opposed, who had expected to testify today. I realize that we
are utilizing extraordinary procedures, different than I have
ever seen before. But I would also point out that it is up to
the chairman, he can change those, and he has the absolute
right to break the precedent.
I would also ask unanimous consent that a statement by
Walter Cronkite, one by Keith Kreul, the past national
commander of the American Legion, and one from the American Bar
Association be included in the record at the appropriate point.
The Chairman. Without objection, we will place them in the
record.
[The above mentioned statements are located in the
appendix.]
STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR FROM THE
STATE OF VERMONT
Senator Leahy. We are being asked in the Senate again to
amend the Constitution of the United States--to change the
fundamental law that binds our Nation together. And I would
hope and expect that we all appreciate that we are undertaking
one of the gravest of our legislative responsibilities. I have
often said that the two gravest things that a Member of the
Senate or the House could do would be to vote either to go to
war or to amend the Constitution. We are being asked to alter
the inalienable rights of Americans, now and for future
generations. And we are handling a most precious trust and one
that is taken seriously by both those for and against this
amendment. We should approach this task with dignity and
decorum, with respect for differing points of view and with
recognition of the patriotism of Americans on both sides of
this question.
A few weeks ago, I traveled to Cuba, talked with the Cuban
Government, the Cuban people on a range of issues, to find out
if there is any way to break down the barriers that have
divided our countries for half a century.
One of the issues I raised with President Castro was his
deplorable record on human rights. The people of Cuba are still
denied fundamental freedoms and rights that are recognized
throughout the world, including the rights of free speech and
an open press.
In fact, a few weeks before I arrived in Cuba, four human
rights activists were convicted on charges of sedition and face
lengthy jail terms. Their crime was criticizing Cuba's one-
party system and calling for peaceful democratic change,
something that would be allowed in any democratic nation in the
world. For this, they were sentenced to prison terms ranging
from 3\1/2\ to 5 years. And the trial, unlike trials in our
constitutional systems, was held in virtual secrecy.
The trial of the four dissidents was just the most recent
example of Cuba's ongoing campaign to stifle free speech and
independent expression. In February, the Cuban National
Assembly passed a law that threatens Cubans with penalties of
up to 20 years for a broad range of activities, including
possessing or disseminating subversive literature, usually
defined as something that most of us would cherish, or
collaborating with the U. S. Government or foreign media.
Cuba is also one of those countries that has, as part of
these laws, a law making it a crime to offend or show contempt
for its flag.
I spoke to Mr. Castro about his crackdown on dissidents and
independent journalists and how it only serves to further
alienate not only our countries but others. I explained how
things work in the United States and that free expression is
the hallmark of a free society. I have often said that the
greatest part of our Constitution is our first amendment. It
allows us to practice any religion we want, or none if we want.
It allows us freedom of speech, and what this guarantees is
diversity, and diversity guarantees always a democracy. You
cannot force people to think alike by suppressing independent
thought. You cannot force people to be patriotic by denying
them the right to speak.
We should think about the human rights situation in Cuba--
or China or Yugoslavia--as we consider whether, for the first
time ever, we are going to restrict the rights enjoyed by
Americans under the first amendment.
Supporters of this proposed amendment insist that we can
draw the line at this amendment. I am not so sure. If we
prohibit people from criticizing the Government by burning a
flag, why not stop them from burning a cross, or a Bible, or a
copy of the Constitution, which really lays out all our rights?
And why not prohibit other forms of political expression?
Make no mistake about it: this proposal is directed at
restricting political speech. We are being asked to say that it
is OK for the U. S. Government to suppress at least some
political expression because we find it offensive. And when
governments like that of Cuba or China decide that certain
forms of political expression are offensive and should be
prohibited, when they prosecute their prodemocracy dissidents
or jail journalists who criticize their leaders, what will we
say then?
The United States is the most powerful country in the world
in large measure because we are the most free. We are a world
leader in the struggle for human rights, including the right to
freedom of speech. This administration and past
administrations, Democrat and Republican, have strongly
criticized foreign governments that limit free speech, censor
the press, and suppress other fundamental human rights. Are we
setting an example here at home?
Americans respect their flag. No change to the Constitution
is necessary to establish respect for the flag or for the
values of freedom and responsibility that this Nation holds so
dear. All of us here today respect the flag. And we will
tomorrow, with or without this amendment. Certainly that is the
way the people in Vermont--probably the most patriotic people I
know--feel.
In all of the hearings, all of the debate that we have
devoted to this topic over the past 8 or 9 years, not one
single person has testified they respect the flag less because
of the very rare occasion when a protester has burned it or
sewed it in the seat of their pants, or misused it in a work of
what they say is art, even though I have never been able to
consider how using the American flag is part of art.
Not one single person has testified that they love our
country less because Americans are free to express themselves
in this manner. If our love of country or respect for its
fundamental principles was so weak that it could be diminished
by such an act, then I think we have cause for alarm. But we
know it is not.
The truth is just the opposite. On those rare occasions
when we see someone disrespect our flag, the overwhelming
majority of Americans are reminded of how much we love that
flag, how much we love our country, how much we cherish
freedom. We are reminded of what unifies us and what this
country stands for and the values it honors and fights for here
and around the world.
I have no lack of faith in the American people and in their
love and respect for the flag, this country, and others' rights
of expression. We respect and love our country for what it is,
not because we are told to respect it. And we do not love our
country because we would be punished if we did not.
A constitutional amendment would do nothing to increase
national unity.
Our Founders had greater faith. Thomas Jefferson, in his
first inaugural address, given at a time when the Nation was
bitterly divided, spoke loud and clear for tolerating even the
most extreme forms of political dissent. He said,
If there be any among us who would dissolve the Union
or * * * change its republican form, let them stand
undisturbed as monuments of the safety with which error
of opinion may be tolerated where reason is left to
combat it.
You know, this is not a case, as some have spoken of, of a
question of whether we respect our veterans or not. To the
contrary, it preserves the very freedoms that veterans fought
to preserve. We should honor our veterans. In my view, we
should start by answering Lincoln's call ``to care for him who
shall have borne the battle, and for his widow, and his
orphan.'' We should honor our veterans with substance rather
than symbols, because when it comes to crunch time for
veterans' needs, too often of late veterans are denied their
due.
Last year, the U.S. Senate voted to divert $10.5 billion
from critical veterans funding to help pay for extravagant
highway spending programs. The Senate raided veterans' programs
in the IRS reform legislation and again in the VA/HUD
appropriations bill. If only a few more Senators had voted with
those of us who were voting to support veterans, we could have
prevailed and $10.5 billion in funding for veterans would have
been assured.
Ironically enough, the Senate will debate this
constitutional amendment far more than we debated the $10.5
billion raid on veterans benefits.
We have squandered a number of opportunities to increase
funds in the VA medical care account. Hospitals are seeing more
patients with less funding and staff, and it can take months
for veterans to get a doctor's appointment. It is not mere
symbolism to fund those hospitals. We can do the symbolic
things, but we are not doing the actual things. We are doing
the rhetoric and not the reality.
I saw this in Vermont where we had to fight to keep
adequate funding for the only veterans hospital in the State.
We changed our immigration laws to expedite deportation
proceedings by cutting back on procedural safeguards and
judicial review. The zealousness of Congress and the White
House to be tough on aliens has also snared American veterans,
permanent residents who have spilled their blood for this
country. As the INS prepares to deport them for even the most
minuscule criminal offenses, I wonder how many of them are
being deported carrying with them their Purple Hearts.
Our country's historic response to dissent is not to ban
speech we find offensive. That is the response of weakness. The
American people respond with strength, with responsible actions
that demonstrate respect and allegiance, freely given.
Last year, when the Ku Klux Klan decided to hold a rally in
Jasper, TX, where an African-American had been brutally
tortured and murdered in a hate crime that shocked the
conscience of us all, the good citizens of Jasper, led by their
African-American mayor, let the Klan speak. They let them
march; they let them wave American flags. The good citizens of
Jasper rejected the Klan without suppressing their speech, and
the Klan realized how they felt about them, and the Klan
slithered out of town.
Last July 18, 1998, in Couer D'Alene, ID, white
supremacists held a ``100-Man flag parade.'' They marched
carrying American flags and Nazi banners side by side. The
local residents turned the tables on the demonstrators by
raising $1,001 for each minute of the white supremacists'
march, and then they donated that money to human rights
organizations. The positive examples of the good citizens from
across this country show that our America, the America for
which our soldiers and veterans have sacrificed so much over
the last 200 years, remains strong.
It can be painful that the Klan and others try to associate
themselves with the principles of our Nation by displaying the
flag, but therein lies the greatness of America. All voices,
however hateful and obnoxious, can be heard, but it is the
strength of ordinary citizens, those who spontaneously sing
``God Bless America'' and the national anthem, that wins the
debate. The first amendment works. Freedom works. And we should
celebrate that, not erode it.
Thank you, Mr. Chairman. I will put my whole statement in
the record.
The Chairman. We will put the whole statement in the
record, without objection.
[The prepared statement of Senator Leahy follows:]
Prepared Statement of Senator Patrick J. Leahy
The Senate is, again, being asked to amend the Constitution of the
United States--to change the fundamental law that binds this nation
together. I hope and expect that we all appreciate that we are
undertaking one of the gravest of our legislative responsibilities. We
are being asked to alter the inalienable rights of Americans, now and
for future generations. We are handling a most precious trust. We would
approach this task with dignity and decorum, with respect for differing
points of view and with recognition of the patriotism of Americans on
both sides of this question.
A few weeks ago I traveled to Cuba to begin a dialogue with the
Cuban government and the Cuban people on a range of issues, with a view
toward finding a way to break down the barriers that have divided our
countries for half a century and that are no longer in the best
interest of the United States.
One of the issues I raised with Castro was his deplorable record on
human rights. The people of Cuba are still denied fundamental freedoms
and rights that are recognized throughout the world, including the
rights of free speech and an open press.
A few weeks before I arrived in Cuba, four human rights activists
were convicted on charges of ``sedition.'' Their ``crime'' was
criticizing Cuba's one-party system and calling for peaceful democratic
change. For this, they were sentenced to prison terms ranging from
three-and-a-half to five years. And the trial was held in virtual
secrecy.
The trial of the four dissidents was just the most recent example
of Cuba's ongoing campaign to stifle free speech and independent
expression. In February, the Cuban National Assembly passed a law that
threatens Cubans with penalties of up to 20 years for a broad range of
activities, including possessing or disseminating ``subversive''
literature, or ``collaborating'' with the United States government or
foreign media.
Cuba also has a law making it a crime to offend or show contempt
for the national flag.
I spoke to Castro about his crackdown on dissidents and independent
journalists, and how it only serves to further alienate our countries.
I explained how things work in the United States and that free
expression is the hallmark of a free society. You cannot force people
to think alike by suppressing independent thought. You cannot force
people to be patriotic by denying them the right to speak.
We should think about the human rights situation in Cuba--in
China--in Yugoslavia--as we consider whether, for the first time ever,
we are going to restrict the rights enjoyed by Americans under the
First Amendment.
Supporters of this proposed amendment insist that we can draw the
line at this amendment. I am not so sure. If we prohibit people from
criticizing the government by burning a flag, why not stop them from
burning a cross, or a bible, or a copy of the Constitution? Why not
prohibit other forms of political expression?
Make no mistake about it: this proposal is directed at restricting
political speech. We are being asked to say that it is okay for the
United States government to suppress at least some political expression
merely because we find it offensive. And when governments like that of
Cuba or China decide that certain forms of political expression are
offensive and should be prohibited, when they prosecute their pro-
democracy dissidents or jail journalists who criticize their leaders,
what will we say then? If it is okay for the United States to
criminalize an unpopular form of political expression why should other
countries not do the same with respect to expression they find
offensive?
The United States is the most powerful country in the world in
large measure because it is the most free. We are a world leader in the
struggle for human rights, including the right to freedom of speech for
all. This administration and past administrations, Democrat and
Republican, have strongly criticized foreign governments that limit
free speech, censor the press and suppress other fundamental human
rights. If we succumb to the temptation of silencing those who express
themselves in ways that we find repugnant, what example do we set for
ourselves and others around the world?
Americans respect their flag. No change to the Constitution is
necessary to establish respect for the flag or for the values of
freedom and responsibility that this nation holds so dear. All of us
here today respect the flag. We will tomorrow. And in all of the
hearings, all of the debate that we have devoted to this topic over the
past eight or nine years, not one single person has testified that they
respect the flag less because a protester has burned it, sewed it in
the seat of his pants, or misused it in a work of what they say is
``art.''
Not one single person has testified that they love our country less
because Americans are free to express themselves in this manner, a way
that is repugnant to many of us. If our love of country or respect for
its fundamental principles was so weak that it could be diminished by
such an act, that would be cause for alarm. We know that it is not.
The truth is just the opposite. On those rare occasions when we
seen someone disrespect our flag the overwhelming majority of Americans
are reminded of how much we love that flag, how much we love our
country, how much we cherish freedom. We are reminded of what unifies
us and what this country stands for and the values it honors and fights
for here and around the world.
I have no lack of faith in the American people and in their love
and respect for the flag, this country and others' rights of
expression. We respect and love our country for what it is, not because
we are told to respect it. We do not love our country because we would
be punished if we did not.
A constitutional amendment would do nothing to increase actual
national unity. If anything, it would erode our unity by eroding the
Bill of Rights, which is the glue that binds us together as a nation.
The Founders had greater faith. Thomas Jefferson, in his first
inaugural address, given at a time when the nation was bitterly
divided, spoke loud and clear for tolerating even the most extreme
forms of political dissent: ``If there be any among us who would
dissolve the Union or * * * change its republican form, let them stand
undisturbed as monuments of the safety with which error of opinion may
be tolerated where reason is left to combat it.''
As Justice Louis Brandeis observed, ``those who won our
independence eschewed silence coerced by law--the argument of force in
its worst form.'' Our faith in free speech is grounded ultimately in a
confidence that the truth will prevail over falsehood.
We should honor our veterans. In my view we should start by
answering Lincoln's call ``to care for him who shall have borne the
battle, and for his widow, and his orphan.'' We should honor our
veterans with substance rather than symbols. When it comes to crunch
time for veterans' needs, too often of late veterans are denied their
due. Last year the Senate voted to divert $10.5 billion from critical
veterans funding to help pay for extravagant highway spending programs.
The Senate raided veterans' programs in the IRS reform legislation and,
again, in the VA/HUD Appropriations Bill. If only a few more Senators
had voted with us to support veterans, we could have prevailed and
$10.5 billion in funding for veterans would have been assured.
The Senate has squandered a number of opportunities to increase the
funds in the Veteran Administration's medical care account. Hospitals
are seeing more patients with less funding and staff, and it can now
take months for veterans to get doctor's appointment. It is not mere
symbolism to fund those hospitals.
It is estimated that a third of all homeless people in this country
are American veterans. Many of those people may be suffering from post-
traumatic stress disorder or other illnesses relating to their military
service.
We all know that with the end of the Cold War, military bases are
closing. Military retirees who relied on the base hospitals for space-
available free medical care are losing access to care. Many service
members retired near military bases specifically so that they could
enjoy the free medical care we promised them, but now they have to find
health care in an inhospitable marketplace.
I saw this in Vermont recently, where we have had to fight to keep
adequate funding for the only veteran's hospital in the state. It has
been on the verge of closing down the in-patient surgery service, which
would mean that many elderly Vermont and New Hampshire veterans would
be forced to travel to Boston for medical care, and many of them just
cannot.
This sort of thing is happening all across the country. For the
last three years, the health care funding for veterans has been flat,
while costs have risen dramatically. We could give military retirees
access to the Federal Employee Health Benefit program that all other
federal employees, including Senators, enjoy. The Senate has not done
so.
Instead, in 1996, we changed the immigration laws to expedite
deportation proceedings by cutting back on procedural safeguards and
judicial review. The zealousness of Congress and the White House to be
tough on aliens has snared American veterans, permanent residents who
have spilled their blood for this country. As the INS prepares to
deport them for even the most minuscule criminal offenses, we have not
even been kind enough to thank them for their service with a hearing to
listen to their circumstances. I heard yesterday that we may be
obtaining some semblance of justice for one of those former servicemen,
and I am honored if my intervention played a part in that matter for
the Ramirez family.
If we fail to meet the concrete needs of American veterans and try
to push them aside with symbolic gestures, we will have failed in our
duty not only to our veterans, but to our country as well.
Our country's historic response to dissent is not to ban speech
that we find offensive. That is the response of weakness. The American
people respond with strength, with responsible actions that demonstrate
respect and allegiance, freely given.
Last year, when the Ku Klux Klan decided to hold a rally in Jasper,
Texas, where an African American had been brutally tortured and
murdered in a hate crime that shocked the conscience of us all, the
good citizens of Jasper, led by their African American mayor, let the
Klan speak. They let them march, and they even let them wave American
flags. The good citizens of Jasper rejected the Klan without
suppressing their speech and the Klan slithered out of town.
Last July 18, 1998, in Couer D' Alene, Idaho, white supremacists
held a ``100-Man flag parade'' and marched carrying American flags and
Nazi banners side by side. The local residents turned the tables on the
demonstrators by raising $1,001 for each minute of the white
supremacists' march, money for donations to human rights organizations.
The positive examples of the good citizens from across this country
show that our America, the America for which our soldiers and veterans
have sacrificed so much over the last 200 years, remains strong.
It can be painful that the Klan and others try to associate
themselves with the principles of our nation by displaying the flag,
but therein lies part of the greatness of America. All voices, however
hateful and obnoxious, can be heard, but it is the strength of ordinary
citizens, those who spontaneously sing ``God Bless America'' that wins
the debate. The First Amendment works. Freedom works. We should
celebrate it, not erode it.
The Chairman. It has been brought to my attention we have
another Medal of Honor winner in our audience. Would Rudolfo
Hernandez stand, please? [Applause.]
Senator Leahy. Mr. Chairman, if I could just interject--oh,
I am sorry. You wanted to say something.
The Chairman. Rudolfo is a distinguished veteran of the
Korean Conflict. Let me just mention, since I failed to mention
him the first time around, let me just mention what Rudolfo
did.
His platoon, in defense of positions on hill 420, came
under ruthless attack by numerically superior and fanatical
hostile forces accompanied by heavy artillery, mortar, and
machine gun fire which inflicted numerous casualties on the
platoon. His comrades were forced to withdraw due to lack of
ammunition, but Corporal Hernandez, though wounded in an
exchange of grenades, continued to deliver deadly fire into the
ranks of the on-rushing assailants until a ruptured cartridge
rendered his rifle inoperative.
Immediately leaving his position, Corporal Hernandez rushed
the enemy, armed only with a rifle and bayonet. Fearlessly
engaging the foe, he killed six of the enemy before falling
unconscious from grenade, bayonet, and bullet wounds, but his
heroic action momentarily halted the enemy advance and enabled
his unit to counterattack and retake the lost ground.
The indomitable fighting spirit, outstanding courage, and
tenacious devotion to duty clearly demonstrated by Corporal
Hernandez reflect the highest credit upon himself, the
infantry, and the U.S. Army. So we are really proud to have you
here, Corporal. [Applause.]
Senator Leahy. Mr. Chairman, I was just going to say
before, one of the most cherished memories I have is the 40th
anniversary of D-Day. President Reagan was going to be in
Normandy, and he asked then-Majority Leader Senator Bob Dole,
our good friend, and I to lead a delegation to represent him in
Italy for the celebrations. On our plane were several
Congressional Medal of Honor winners. I don't recall all the
things that happened during the various celebrations. As you
know, you have been at those various things. They become almost
a blur going from place to place. I remember virtually every
second of the time spent in the airplane with the Medal of
Honor winners, both over and back. I made a lot of notes on
them, and Senator Dole has visited with some of them since.
They were kind enough to give me a set of cuff links and a pin
with the symbol of the Congressional Medal of Honor. I have
kept those in a special place. I would never wear them because
I feel that is something only those who have earned it should
wear. But I thought what an honor it was to be there with them.
It was an extraordinary, extraordinary time, and you
probably have heard Bob talk about that trip.
The Chairman. Yes.
Senator Leahy. I know it meant a lot to him, too.
The Chairman. Well, thank you, Senator.
We will turn to the chairman of the Constitution
Subcommittee, Senator Ashcroft, and then I am going to turn to
Senator Feingold, who is the ranking member, for the final
comments from the dais here. And then we are going to turn to
our witnesses.
STATEMENT OF HON. JOHN ASHCROFT, A U.S. SENATOR FROM THE STATE
OF MISSOURI
Senator Ashcroft. Thank you and good morning. I want to
thank Chairman Hatch for holding this hearing and thank him for
his leadership on what I consider to be this important issue.
We plan to mark up the proposed flag amendment in
subcommittee tomorrow. Of course, this is the full committee.
And this morning's hearing should set the stage for that markup
by providing an opportunity to examine our Nation's history,
which is rather substantial, of safeguarding the flag and give
us an opportunity to discuss the necessity of continuing to
protect the flag in the years ahead.
In exploring the wisdom of amending the Constitution to
protect the flag, it is important to begin with the rich role
that the flag has played in our country's history. Throughout
our history, the flag has held a special place in the hearts
and minds of Americans. Although its appearance has changed,
reflecting the growth of the Nation, its meaning has not
changed. The flag represents no particular perspective,
political agenda, or religious belief; rather, it symbolizes an
ideal, not just for Americans but for all people who honor the
great American experiment. It represents both the shared ideal
of freedom and the continuing struggle for this precious
liberty.
In the words of the Chief Justice of the United States in
his dissenting opinion in Texas v. Johnson, and I am quoting
now,
The American flag throughout more than 200 years of
our history has come to be the visible symbol embodying
our Nation. 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.
Not only has the flag played an important role in our
Nation's history, but we also have a long traditional of
protecting the flag from desecration. The first laws providing
special protections for the flag date back over 100 years, and
there are earlier reported incidents in which desecration of
the flag was treated as an act of war or treason. Many of the
other protective State laws were based on the Uniform Flag Act
of 1917.
None of the sponsors of these laws that previously have
protected our flag felt that the laws ran afoul of the first
amendment. Indeed, the Supreme Court itself upheld the Nebraska
statute preventing commercial use of the flag in 1907 in Halter
v. Nebraska. By the time of the Supreme Court's decision in
Texas v. Johnson, 48 of the 50 States made burning the flag a
criminal offense.
Now, this long tradition of flag protection is important
for at least two reasons. First, it demonstrates that citizens
of this country have long thought it important to incorporate
respect for the flag into the governing law. Second, it makes
it awfully difficult for me to believe that this legislative
practice, which dates back a full century, somehow violated the
Constitution all along. However, a majority of the Supreme
Court reached that conclusion, finding both State and Federal
flag protection statutes to be incompatible with the first
amendment.
Now, this proposed amendment would restore the people's
will and capacity to protect the flag, and it would reaffirm a
power Congress enjoyed until the beginning of this decade. I do
not believe this action threatens the important values of the
first amendment. As Justice Stevens noted in his dissent in
Texas v. Johnson, and I am quoting, ``The concept of
desecration does not turn on the substance of the message the
actor intends to convey but, rather, on whether those who view
the act will take serious offense.''
Likewise, the act of desecrating the flag does not have any
content in and of itself. The act takes meaning and expresses
conduct only in the context of the true speech which
accompanies the act, and that speech would remain unregulated.
Nor can I accept the notion that in protecting our Nation's
symbol we are somehow undermining the first amendment as it is
applied in other contexts. The flag is wholly unique, with no
rightful or similar comparison. An amendment protecting the
flag from desecration will provide no aid or comfort in any
future campaigns to restrict speech. The best evidence of this
truth is that limits on flag desecration coexisted with our
precious first amendment liberties for nearly a century before
the Supreme Court's decision in Texas v. Johnson.
Despite these arguments, the Supreme Court discarded the
judgment of the State and Federal legislative bodies which all
found protection of the flag to be consistent with the
Constitution. The question before us now is whether to let that
decision of the Supreme Court stand or whether we should
exercise the power given to us by the Constitution to allow the
people a chance to restore their will.
I would just add this note here. The Senate is not being
asked to amend the Constitution. The Congress cannot amend the
Constitution. Only the people of this country, through their
States in ratifying proposed amendments, can do so. And we are
simply being asked to exercise the power given to us by the
Constitution to allow the people, through their States, to have
that opportunity.
I look forward to this opportunity to explore these issues,
to hear more about our Nation's history and traditions, and it
is my hope that all of us can walk away from this hearing with
a greater understanding of this issue and a recognition of a
need, a serious need to protect the legacy and freedom that the
U.S. flag represents.
Thank you, Mr. Chairman.
The Chairman. Thank you, Senator.
Senator Feingold.
STATEMENT OF HON. RUSSELL D. FEINGOLD, A U.S. SENATOR FROM THE
STATE OF WISCONSIN
Senator Feingold. Thank you, Mr. Chairman. I want to
welcome our witnesses. I thank them for coming. And I am going
to keep my remarks brief so we can get on to the witnesses whom
all of us would like to hear.
I do want to just take a moment to underline a few points,
Mr. Chairman. I want to thank you for your and your staff's
cooperation on scheduling this hearing and the two markups very
much.
The Chairman. I want to thank you. You have been very easy
to work with on this, and we appreciate your cooperation.
Senator Feingold. This hearing and the whole issue of the
flag amendment are not only about the flag. They are also about
the first amendment and our precious right of free speech. We
are not here to discuss whether flag burning is a good idea--it
is obviously just the opposite--or whether the flag is worthy
of respect. It always is.
We are here to discuss whether for the first time in our
history we should amend the first amendment to allow the
Government to criminalize conduct that is clearly expressive
and that is often undertaken as a form of political protest.
It seems almost silly to have to say this, but given some
of the political ads that have been running on this issue, I
believe I must. Not a single Senator who opposes the proposed
constitutional amendment, as I do, supports burning or
otherwise showing disrespect to the flag. Not a single one.
There has never been such a Senator. I don't believe there ever
will be. None of us think it is OK to burn the flag. On those
rare occasions when some malcontent defiles or burns our flag,
I join everyone on this dais and in this room and in this
country who condemns that action.
At the same time, whatever the political cost, I will
defend the right of Americans to express their views about
their Government, however hateful or spiteful or disrespectful,
without the fear of their Government putting them in jail for
those views. America is not a Nation of symbols. It is a Nation
of principles. And the most important principle of all, the
principle that I think has made this country a beacon of hope
and inspiration for oppressed peoples throughout the world, is
the right of free expression. This amendment, well-intentioned
as it may be, threatens that right and, therefore, I must
oppose it.
The first amendment to the Constitution has survived and
flourished for over 200 years of our history, and we have not
deviated from it even in the darkest moments of our history.
Through civil war, foreign wars, or domestic turmoil, we have
never gone the constitutional amendment route to try to deal
with a problem that has to do with the Bill of Rights and a
decision of the U.S. Supreme Court. That is very significant.
It is not that we don't react to Supreme Court decisions. It is
that this particular mechanism is unprecedented and troubling.
Amending the Bill of Rights of the U.S. Constitution is not the
proper response.
The principle of free expression is perhaps what separates
this country most clearly from oppressive regimes around the
world, as Senator Leahy so eloquently expressed. Let's not
start tinkering with it now, even to protect a symbol as
important and meaningful as the American flag.
Mr. Chairman, before I yield, I want to ask consent to
enter into the record of this hearing the guidelines developed
by Citizens for the Constitution for when and how the
Constitution should be amended. Citizens for the Constitution
is a nonpartisan organization of former public officials,
constitutional scholars, and other prominent Americans who urge
restraint in the consideration of proposals to amend the
Constitution.
I hope that the Senate will continue to exercise restraint
when it votes later this year on this particular amendment, and
I thank you again, Mr. Chairman, and look forward to hearing
from the witnesses.
The Chairman. Thank you. And, without objection, we will
put that in the record.
[The guidelines follow:]
Citizens for the Constitution
``great and extraordinary occasions'': developing guidelines for
constitutional change 1
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\1\ Uncorrected draft manuscript.
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Introduction
When the Constitution's framers met in Philadelphia, they decided
to steer a middle course between establishing a constitution that was
so fluid as to provide no protection against the vicissitudes of
ordinary politics and one that was so rigid as to provide no mechanism
for orderly change. An important part of the compromise they fashioned
was embodied in Article V.
The old Articles of Confederation could not be amended without the
consent of every state--a system that was widely recognized as
impractical, producing stalemate and division. Accordingly, Article V
provided for somewhat greater flexibility: the new Constitution could
be amended by a proposal adopted by two-thirds of both Houses of
Congress or by a convention called by two-thirds of the states,
followed in each case by approval of three-fourths of the
states.2
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\2\ Article V provides: The Congress whenever two thirds of both
Houses shall deem it necessary, shall propose Amendments to this
Constitution, or, on the Application of the Legislatures of two thirds
of the several States, shall call a Convention for proposing
Amendments, which, in either Case, shall be valid to all Intents and
Purposes, as Part of this Constitution, when ratified by the
Legislatures of three fourths of the several States, or by Conventions
in three fourths thereof, as the one or the other Mode of Ratification
may be proposed by the Congress; Provided that no Amendment which may
be made prior to the Year One thousand eight hundred and eight shall in
any Manner affect the first and fourth Clauses in the Ninth Section of
the first Article; and that no State, without its Consent, shall be
deprived of its equal Suffrage in the Senate.
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In the ratification debate that ensued, Article V played an
important role. The new, more flexible amendment process served to
reassure potential opponents who favored adding a bill of rights, or
who worried more generally that the document might ultimately prove
deficient in unanticipated ways. It also reassured the Constitution's
supporters by making it more unlikely that a second constitutional
convention would be called to undo the work of the first.
Precisely because the legal constraints on the amendment process
had been loosened somewhat from those contained in the old Articles,
many of the framers also believed that the legal constraints should be
supplemented by self-restraint. Although the new system made it legally
possible to change our foundational document even when there was
opposition, the framers believed that even dominant majorities should
hesitate before using this power. As James Madison, a principal author
of both the Constitution and the Bill of Rights, argued in Federalist
49, the constitutional road to amendment should be ``marked out and
kept open,'' but should be used only ``for certain great and
extraordinary occasions.''
For the first two centuries of our history, this reliance on self-
restraint has functioned well. Although more than 11,000 proposed
constitutional amendments have been introduced in Congress, only
thirty-three received the requisite congressional supermajorities, and
only twenty-seven have been ratified by the states. The most
significant of these amendments, accounting for half of the total, were
proposed during two extraordinary periods in American histroy--the
period of the original framing, which produced the Bill of
Rights,3 and the Civil War period, which produced the
Reconstruction amendments. Aside from these amendments, the
Constitution has been changed only thirteen times.
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\3\ The Twenty-seventh Amendment, relating to changes in
congressional compensation, was part of the original package of
amendments proposed by the first Congress, but was not ratified by the
states until 1992.
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Most of these thirteen amendments either expanded the franchise or
addressed issues relating to presidential tenure. Only four amendments
have ever overturned decisions of the Supreme Court, and the only
amendments not falling within these categories--the Prohibition
Amendments--also provide the only example of the repeal of a previously
enacted amendment.4
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\4\ A list and brief description of all twenty-seven ratified
amendments, grouped according to category, is attached as an appendix.
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In recent years, however, there have been troubling indications
that this system of self-restraint may be breaking down. To be sure, no
newly proposed amendment has been adopted since 1971. Nonetheless,
there has been a sudden rash of proposed amendments that have moved
further along in the process than ever before and that, if enacted,
would revise fundamental principles of governance such as free speech
and religious liberty, the criminal justice protections contained in
the Bill of Rights, and the methods by which Congress exercises the
power of the purse. Within the past few years, six proposed
constitutional amendments--concerning a balanced budget, term limits,
flag desecration, campaign finance, religious freedom, and procedures
for imposing new taxes--have reached the floor of the Senate, the
House, or both bodies. Two of these--the balanced budget amendment and
the flag desecration amendment--passed the House, and a version of the
balanced budget amendment twice failed to win Senate passage by a
single vote. Still other, sweeping new amendments--including a
``victim's rights'' amendment, an amendment redefining United States
citizenship, and even an amendment to ease the requirements for future
amendments--have considerable political support.
There are many explanations for this new interest in amending the
Constitution. Some Republicans, in control of both Houses of Congress
for the first time in several generations, want to seize the
opportunity to implement changes that many of them have long favored.
Some Democrats, frustrated by a political system they view as
fundamentally corrupted by large campaign contributions, want to
revisit the relationship between money and speech. Some members of both
parties have blamed what they consider to be the Supreme Court's
judicial activism for effectively revising the Constitution, thereby
necessitating resort to the amendment process to restore the document's
original meaning.\5\ There may well be merit to each of these views.
Unfortunately, however, very little attention has been devoted to the
wisdom of engaging in constitutional change, even to advance popular
and legitimate policy outcomes. We believe that the plethora of
proposed amendments strongly suggests that the principle of self-
restraint that has marked our amending practices for the past two
centuries may be in danger of being forgotten.
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\5\ Issues concerning the appropriate techniques of constitutional
interpretation are beyond the scope of this project. Some, but by no
means all, of our members believe that, in some cases, the Supreme
Court has inappropriately ``amended'' the Constitution through a
strained reading of its text. We believe that it is entirely
appropriate for Congress to respond to what it perceives as erroneous
constitutional interpretation by passing corrective amendments.
However, we also believe that, even in the face of perceived judicial
overreaching, Congress should not compound the problem by responding
with poorly drafted or ill-considered amendments.
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There are several good reasons for attempting to reaffirm this
self-restraint.
Restraint is important because constitutional amendments
bind not only our own generation but future generations as well.
Constitutional amendments may entrench policies or practices that seem
wise now, but that end up not working in practice or that reflect
values that cease to be widely shared. Contested policy questions
should generally be subject to reexamination in light of the experience
and knowledge available to future generations. Enshrining a particular
answer to these questions in the Constitution obstructs that
opportunity. Our experience with three previously proposed amendments,
one that was adopted and later repealed, and two others that moved far
along in the process but were not adopted, serve to illustrate these
points:
First, when the Prohibition Amendment was adopted in 1919, many
Americans thought that it embodied sensible social policy. Yet within a
short time, there was broad agreement that the experiment had failed,
in part because enforcing it proved enormously expensive in terms of
dollars and social cost. Had prohibition advocates been content to
implement their policy by legislation, those laws could have been
readily modified or repealed when the problems became apparent.
Instead, the country had to undergo the arduous and time-consuming
process of amending the Constitution to undo the first change. This is
an experience we should be eager not to repeat.
The second example might have had far more serious consequences. On
the eve of the Civil War, both Houses of Congress adopted an amendment
that would have guaranteed the property interest of slaveholders in
their slaves and would have forever prohibited repeal of the amendment.
Fortunately, the proposed amendment was overtaken by events and never
ratified by the states. Had it become law, the result would have been a
constitutional calamity.
Finally, in our own time, there is the failed effort to add to the
Constitution an equal rights amendment, prohibiting denial or
abridgment of rights on account of sex. Within three months of
congressional passage in 1972, twenty states had ratified the
amendment. Thereafter, the process slowed, and even though Congress
extended the deadline, supporters ultimately fell short of the three-
fourths of the states necessary for ratification. The struggle for and
against ratification produced much dissension and consumed a great deal
of political energy. Yet today, even some of the amendment's former
supporters would concede that it may not have been necessary. Moreover,
the amendment would have added to the Constitution a controversial and
broadly worded provision of uncertain and contested meaning, with the
Supreme Court given the unenviable job of providing it content. Instead
of years of judicial wrangling concerning its application, we have seen
Congress pass ordinary legislation, and the Court engage in the
familiar process of explicating existing constitutional and statutory
text, to achieve many of the goals of the amendment's proponents. This
process has been more sensitive and flexible, while also less
contentious and divisive, than what we could have expected had the
amendment become law.
Restraint is also important in order to preserve the
Constitution as a symbol of our nation's democratic system and of its
cherished diversity. In a pluralistic democracy, in which people have
many different religious faiths and divergent political views,
maintaining this symbol is of central importance. The Constitution's
unifying force would be destroyed if it came to be seen as embodying
the views of any temporarily dominant group. It would be a cardinal
mistake to amend the Constitution so as to effectively ``read out'' of
our foundational charter any segment of our society.
The Constitution's symbolic significance might also be
damaged if it were changed to add the detailed specificity of an
ordinary statute in order to control political outcomes. The
Constitution's brevity and generality serve to differentiate it from
ordinary law and so allow groups that disagree about what ordinary law
should be to coalesce around the broad principles it embodies.
Finally, restraint is necessary because proposed
amendments to the Constitution often put on the table fundamental
issues about our character as a nation, thereby bringing to the fore
the most divisive questions on the political agenda. Two centuries ago,
James Madison warned of the ``danger of disturbing the public
tranquility by interesting too strongly the public passions'' through
proposed constitutional change. It is not only wrong to trivialize the
Constitution by cluttering it with measures embodying no more than
ordinary policy; it is also a mistake to reopen basic questions of
governance lightly. Occasional debates about fundamental matters can be
cleansing and edifying, but no country can afford to argue about these
issues continuously. Our ability to function as a pluralistic democracy
depends upon putting ultimate issues to one side for much of the time,
so as to focus on the quotidian questions of ordinary politics. As
Madison argued shortly after the Constitution's drafting, changes in
basic constitutional structure are ``experiments * * * of too ticklish
a nature to be unnecessarily multiplied.''
None of this is to suggest that the Constitution should never be
amended or that its basic structural outlines are above criticism.
There have been times in our history when arguments for restraint have
been counterbalanced by the compelling need for reform. Some
individuals may believe that this is such a time, at least with regard
to particular issues, and if they do, there is nothing illegitimate
about urging constitutional change.
Some constitutional amendments are designed to remedy perceived
judicial misinterpretations of the Constitution. Some earlier
amendments--for example, the Eleventh Amendment establishing state
sovereign immunity and the Sixteenth Amendment authorizing an income
tax--fall into this category. There is nothing per se illegitimate
about amendments of this sort, although here, as elsewhere, their
supporters need to think carefully about the precise legal effect of
the amendment in question and about how it will interact with other,
well-established principles of constitutional law.
More generally, advocates of amendments of any kind should focus
not only on the desirability of the proposed change, but also on the
costs imposed by attempts to achieve that change through the amendment
process as contrasted with other alternatives. In the Guidelines that
follow, we propose some general questions that, we hope, participants
in debates about constitutional change will ask themselves. We do not
pretend that the answers to these questions will always be dispositive
or that the Guidelines can be mechanically applied. If the
circumstances were extraordinary enough, all of these warnings might be
overcome. Nor do we imagine that the Guidelines alone are capable of
resolving all disputes about currently pending proposals for
constitutional change. We ourselves are divided about some of these
proposed amendments, and no general Guidelines can determine the
ultimate trade-offs among the benefits and costs of change in
individual cases.\6\
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\6\ As an organization, we generally take no position on the merits
of proposed amendments. We have made a single exception in the case of
an amendment that would itself make the amendment process less arduous.
This proposal runs afoul of our core commitment to restraint, and we
strongly oppose it.
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Instead, our hope is that the Guidelines will draw attention to
some aspects of the amending process that have been ignored too
frequently, will provoke discussion of when resort to the amending
process is appropriate, and will suggest an approach that ensures that
all relevant concerns are fully debated. At the very moment when this
country was about to embark on the violent overthrow of a prior, unjust
constitutional order, even Thomas Jefferson, more friendly to
constitutional amendments than many of the founders, warned that
``governments long established should not be changed for light and
transient causes.'' In the calmer times in which we live, there is all
the more reason to insist on something more before overturning a
constitutional order that has functioned effectively for the past two
centuries. The Guidelines that follow attempt to raise questions about
whether such causes exist and how we should respond to them.
Guidelines for Constitutional Amendments
1. Does the proposed amendment address matters that are of more
than immediate concern and that are likely to be recognized as of
abiding importance by subsequent generations?
2. Does the proposed amendment make our system more politically
responsive or protect individual rights?
3. Are there significant practical or legal obstacles to the
achievement of the objectives of the proposed amendment by other means?
4. Is the proposed amendment consistent with related constitutional
doctrine that the amendment leaves intact?
5. Does the proposed amendment embody enforceable, and not purely
aspirational, standards?
6. Have proponents of the proposed amendment attempted to think
through and articulate the consequences of their proposal, including
the ways in which the amendment would interact with other
constitutional provisions and principles?
7. Has there been full and fair debate on the merits of the
proposed amendment?
8. Has Congress provided for a nonextendable deadline for
ratification by the states so as to ensure that there is a
contemporaneous consensus by Congress and the states that the proposed
amendment is desirable?
commentary on the guidelines
The following commentary explains each of the Guidelines and
illustrates how each might be applied in the context of some previous
and pending proposals for constitutional amendment. It is significant
that the Guidelines are written in the form of questions to think
about, rather than commands to be obeyed. The Guidelines alone cannot
determine whether any amendments should be adopted or rejected.
Instead, most of the Guidelines are designed to raise concerns that
those considering amendments might want to weigh against the perceived
desirability of the changes embodied in the amendments. The last three
Guidelines--concerning the need to articulate consequences, the
fairness of the procedure, and the requirement of a nonextendable
deadline--are in a somewhat different category. Although each of the
other concerns might be overcome if one were sufficiently committed to
the merits of a proposed amendment, it is hard to imagine the
circumstances under which adopting an amendment would be appropriate
without an articulation of its consequences, a full and fair debate,
and measures designed to assure that it reflects a contemporary
consensus.
1. Does the proposed amendment address matters that are of more than
immediate concern and that are likely to be recognized as a
abiding importance by subsequent generations?
James Madison, one of the principal architects of Article V of the
Constitution, which contains the procedures for amendment, cautioned
against making the Constitution ``too mutable'' by making
constitutional amendment too easy. Hence his insistence that any
constitutional amendment command not only majority, but supermajority,
support. Implicit in Madison's caution is the view that stability is a
key virtue of our Constitution and that excessive ``Mutability'' would
undercut one of the main reasons for having a constitution in the first
place. As Chief Justice John Marshall observed in McCulloch v.
Maryland, the Constitution was ``intended to endure for ages to come.''
Similarly, in his prophetic dissent in Lochner v. New York, Justice
Oliver Wendell Holmes cautioned that the Constitution ought not be read
to ``embody a particular economic theory'' that might be fashionable in
a particular generation. It is crucial to our constitutional enterprise
to preserve public confidence--over succeeding generations--in the
stability of the basic constitutional structure.
Thus, the Constitution should not be amended solely on the basis of
short-term political considerations. Of course, no one can be certain
whether future generations will come to see a policy as merely
evanescent or as truly fundamental. Still, legislators have an
obligation to do their best to avoid amendments that are no more than
part of a momentary political bargain, likely to become obsolete as the
social and political premises underlying their passage wither or
collapse.
To be enduring, constitutional amendments should usually be cast,
like the Constitution itself, in general terms. Both powers and rights
are set forth in our basic document in broad and open-ended language.
To quote Marshall in McCulloch again, an enduring Constitution
``requires that only its great outlines should be marked,'' with its
``minor ingredients'' determined later through judicial interpretation
in each succeeding generation. Of course, sometimes specificity will be
necessary, as in changing the date of the presidential inauguration.
But in general, the nature of our Constitution is violated if
amendments are too specific in the sense that they reflect only the
immediate concerns of one generation, or if they set forth specifics
more appropriate in an implementing statute.
To illustrate this point, contrast the experience of the state
constitutions with our sparse tradition of federal constitutional
amendments. While the federal Constitution has been amended only
twenty-seven times in more than two hundred years, the fifty state
constitutions have had a total in excess of six thousand amendments
added to them.\7\ Many are the products of interest group politics and
are characteristic of ordinary legislation. State constitutions thus
suffer from what Marshall called ``the prolixity of a legal code''--a
vice he praised the federal Constitution for avoiding.\8\
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\7\ Council of State Governments, The Book of the States, 1998-99
ed. (Lexington, KY: Council of State Governments, 1998).
\8\ It may be that differences between the state and federal
governments justify more detailed constitutions on the state level.
Detailed constitutional structures that might work well at the state
level might work poorly at the federal level.
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Even when amendments are not overly detailed, they may be
inappropriate because they focus on matters of only short-term concern.
For example, consider various proposals that seek to carve specific new
exceptions out of the broad concept of freedom of speech set forth in
the First Amendment. The proposed flag desecration amendment would
rewrite the Constitution to say that while the government generally may
not prohibit speech based on dislike of its message, it may do so in
the case of flag desecraters. The proposed campaign finance amendment
would alter the First Amendment to say that the quantity of speech may
never be diminished--except in modern election campaigns.
Each of these amendments is a response to contemporary political
pressures. Future generations, like Americans today, can easily
perceive the broad purposes and enduring legacies underlying the
majestic generalities of our original guarantee of freedom of speech:
the quest for truth, for self-government, and for individual liberty.
But future generations may not understand, let alone revere, the
motivations behind a flag desecration or campaign finance amendment.
Such particularized amendments may instead be perceived as the
political victory of one faction in a particular historical moment.
Flag desecration is not an immortal form of political protest; we
cannot know whether political dissidents will have the slightest
interest in this gesture generations from now. Similarly, the campaign
tactics used by candidates today might change in ways that we cannot
now imagine as we enter an age of instantaneous global communication
over new electronic and digital media. Thus, there may be legitimate
questions about the enduring nature of the perceived problem, as well
as about the proposed solution.
In general, we should not embed in the Constitution one
generation's highly particular response to problems that a later
generation might view as ephemeral. To add such transient amendments to
the Constitution trivializes and undermines popular respect for a
document that was intended to endure for the ages.
2. Does the proposed amendment make our system more politically
responsive or protect individual rights?
Of the twenty-seven amendments to the Constitution, seventeen
either protect the rights of vulnerable individuals or extend the
franchise to new groups. With the notable exception of the failed
Prohibition Amendment, none of the amendments simply entrenches a
substantive policy favored by a current majority.
There are good reasons for this overwhelming emphasis either on
individual rights or on democratic participation. In a constitutional
democracy, most policy questions should be decided by elected
officials, responsible to the people who will be affected by the
policies in question. It follows that the Constitution's main thrust
should be to ensure that our political system is more, rather than
less, democratic. Many amendments serve this function. For example, the
Fifteenth, Seventeenth, Nineteenth, Twenty-third, Twenty-fourth, and
Twenty-sixth Amendments all broaden the franchise.
Of course, the Constitution is also designed to shield vulnerable
individuals from majority domination, whether temporary or permanent.
Hence, many amendments guarantee minority rights. For example, the
First Amendment protects the rights of religious and political
minorities; the Fifth Amendment protects the rights of property holders
whose property might be seized by legislative majorities without
compensation or due process; the Fourth, Fifth, Sixth, and Eighth
Amendments all protect the rights of criminal defendants, who were
deemed especially vulnerable to majority hatred and overreaching; and
the Thirteenth, Fourteenth, and Fifteenth Amendments were all motivated
by the desire to protect former slaves.
There is an obvious tension between the twin goals of majority rule
and protection for individuals, and this Guideline does not seek to
resolve it. On some occasions, it is important to provide
constitutional guarantees for individuals against government
overreaching; yet on others, it is equally important to allow
majorities to have their way. Although the protection of individual
rights is a central aim of the Constitution, it is not the only aim,
and it is emphatically not true that every group that comprises less
than a majority is entitled to constitutional protection because of its
minority status.
One need not determine when majority rule should trump minority
rights to see the problem with amendments that do more than entrench
majority preferences against future change. Amendments of this sort can
be justified by neither majoritarianism nor a commitment to individual
rights. On the one hand, they restrict the scope of democratic
participation by future generations. On the other, they entrench the
will of a current majority as against minority dissenters.
Amendments of this sort should not be confused with power-granting
amendments. To make possible ordinary legislation, favored by a current
majority, it is sometimes necessary to enact amendments that eliminate
constitutional barriers to its passage. For example, the Sixteenth
Amendment eliminated a constitutional obstacle to the enactment of a
federal income tax, and the Fourteenth Amendment eliminated federalism
objections to civil rights legislation. Such amendments may be
legitimate when they widen the scope of democratic participation,
although, as noted above, they may also raise difficult issues
regarding the appropriate trade-off between majority control and
minority rights.
In contrast, amendments that merely entrench majority social or
economic preferences against future change make the system less rather
than more democratic. They narrow the space for future democratic
deliberation and sometimes trammel the rights of vulnerable
individuals. It is a perversion of the Constitution's great purposes to
use the amendment process as a substitute for ordinary legislative
processes that are fully available to groups proposing popular changes
and will be equally available to future majorities that may take a
different view.
This Guideline raises important questions concerning a number of
proposed constitutional amendments. Consider first the ``victims
rights'' amendment, which would grant a number of rights in the trial
process to the victims of crime. Congress should ask whether crime
victims are a ``discrete and insular minority'' requiring
constitutional protection against overreaching majorities or whether
they can be protected through ordinary political means. Congress should
also ask whether it is appropriate to create rights for them that are
virtually immune from future revision.
The balanced budget amendment poses a close question under this
Guideline. On the one hand, the amendment can be defended as democracy-
enhancing by protecting the interests of future generations, or by
counterbalancing the power of narrow interest groups that have
succeeded in gaining a disproportionate share of the public fisc for
themselves. On the other hand, these gains are achieved at the cost of
dramatically shrinking the area of democratic participation.
Discussions of economic theory and the size of the federal budget
deficit are central to democratic politics. Americans' views concerning
the propriety of deficit financing have changed dramatically over time,
and there is no reason to think that this evolutionary process has come
to a sudden end. Locking in a currently popular position against future
change, including perhaps turning the problem of remedies over to
unelected federal judges, would significantly alter the democratic
thrust of the Constitution and obstruct the ability of future
generations to make their own economic judgments.
Finally, consider the flag desecration amendment. In form, the
amendment is power granting: it opens previously closed space for
democratic decisionmaking without requiring any particular result. In
general, such power-granting amendments pose no problems under this
Guideline. Yet the flag desecration amendment grants power to the
behest of an already dominant majority and at the expense of an
extremely unpopular and utterly powerless minority. True, current
constitutional doctrine prevents the majority from working its will
with regard to one particular matter--the criminalization of flag
desecration. But the majority on this issue has considerable power and
is hardly disabled from expressing its views in a wide variety of other
fora. Granting to the majority the power to prohibit an overwhelmingly
unpopular form of expression may serve to entrench currently popular
views, at the expense of an unpopular minority, without providing any
real gains in terms of democratic participation.
3. Are there significant practical or legal obstacles to the
achievement of the objectives of the proposed amendment by
other means?
The force of the Constitution depends on our ability to see it as
something that stands above the outside of day-to-day politics. The
very idea of a constitution turns on the separation of the legal and
the political realms. The Constitution sets up the framework of
government. It also sets forth fundamental political ideals--equality,
representation, and individual liberties--that limit the actions of a
temporary majority. This is our higher law. All the rest is left to
day-to-day politics. Those who lose in the short run of ordinary
politics obey the winners out of respect for the long-run rules and
boundaries set forth in the Constitution. Without such respect for the
constitutional framework, the peaceful operation or ordinary politics
would degenerate into fractious war.
Accordingly, the Constitution should not be amended to solve
problems that can be addressed through other means, including federal
or state legislation or state constitutional amendments. An amendment
that is perceived as a surrogate for ordinary legislation or executive
action breaks down the boundary between law and politics that is so
important to maintaining broad respect for the Constitution. And the
more the Constitution is filled with specific directives, the more it
resembles ordinary legislation. And the more the Constitution looks
like ordinary legislation, the less it looks like a fundamental charter
of government, and the less people will respect it.
A second reason for forgoing constitutional amendments when their
objectives can be otherwise achieved is the greater flexibility that
political solutions have to respond to changing circumstances over
time.\9\ Amendments that embody a specific and perhaps controversial
social or economic policy allow one generation to tie the hands of
another, entrenching approaches that ought to be more easily revisable
by future generations in light of their own circumstances. Such
amendments convert the Constitution from a framework for governing into
a statement of contemporary public policy.
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\9\ This reason also relates to a separate set of concerns outlined
in Guideline Two.
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For these reasons, advocates of a constitutional amendment should
consider whether they have exhausted every other means of political
redress before they seek to solve a problem by amending the
Constitution. If other action under our existing constitutional
framework is capable of achieving an objective, then writing that
objective into the Constitution is unnecessary and will clutter that
basic document, reducing popular respect. One might wonder why anyone
would resort to the difficult and time-consuming effort to secure a
constitutional amendment if the same goals could be accomplished by
ordinary political means. Unfortunately, some now believe that a
legislator is not serious about a proposal unless he or she is willing
to amend the Constitution. Experience has also demonstrated that the
amendment process (and even the mere sponsorship of an amendment, if
the sponsor suspects that actual passage is unlikely) can be a tempting
way to make symbolic or political points or to prevent future change in
policy despite the availability of nonconstitutional means to achieve
current public policy objectives.
For example, our experience with the failed equal rights amendment
suggests the virtues of using ordinary political means to effect
desired change. Today, many of the objectives of the amendment's
proponents have been achieved without resort to the divisive and
unnecessary amendment process.
The proposed victims' rights amendment raises troubling questions
under this Guideline. Witnesses testifying in Congress on behalf of the
federal amendment point to the success of state amendments as reason to
enact a federal counterpart. But the passage of the state amendments
arguably cuts just the other way: for the most part, states are capable
of changing their own law of criminal procedure in order to accommodate
crime victims, without the necessity of federal constitutional
intervention. While state amendments cannot affect victims' rights in
federal courts, Congress has considerable power to furnish such
protections through ordinary legislation. Indeed, it did so in March
1997 with Public Law 105-6 (codified as 18 U.S.C. Sec. 3510), which
allowed the victims of the Oklahoma City bombing to attend trial
proceedings. If this generation's political process is capable of
solving a problem one way, then future generations' political processes
should be free to adjust that solution over time without the rigid
constraints of a constitutional amendment.
This Guideline does not caution against resort to constitutional
change when there are significant legal or practical obstacles to
ordinary legislation. Consider in this regard the proposed flag
desecration amendment. After the Supreme Court invalidated a state
statute prohibiting flag desecration, Congress responded by attempting
to draft a federal statute that proscribed desecration without
violating the Court's interpretation of the First Amendment. This
effort to exhaust nonconstitutional means is precisely the course of
conduct this Guideline recommends. Now that the Supreme Court has also
invalidated the federal statute, use of the amendment process in this
context would fully comport with this Guideline unless a different
statute could be devised that would pass constitutional muster.
Closer questions arise when there are practical rather than legal
obstacles to ordinary legislation. The balanced budget amendment
provides an interesting example. On the one hand, experience prior to
1997 suggested that there might have been insurmountable practical
difficulties in dealing with budgetary problems through ordinary
legislation, that interest group politics would inevitably stymie
efforts to cut expenditures through the ordinary budget process, and
the perhaps interest group politics could be transcended only by use of
a general, constitutional standard. To the extent that this was true,
utilization of the constitutional amendment process might well have
been justified under this Guideline.
On the other hand, a constitutional amendment is a far cruder
instrument than is congressional or presidential action to address the
issue of federal spending, for it lacks the flexibility to permit
tailoring fiscal policy to the nation's changing economic needs. There
are no formal legal barriers to solving the problem through existing
legislative and executive means, and recent success in achieving
budgetary balance suggests that it is sometimes a mistake to
overestimate the practical obstacles to change. This example counsels
caution before resort to the amendment process in any context.
In any event, advocates of constitutional change should be certain
that they have exhausted other means before resorting to the amendment
process. Our history counsels that the federal Constitution should
continue to be altered sparingly and only as a last resort. Only
amendments that are absolutely necessary should be proposed and
enacted. And amendments are not necessary when there are no legal or
practical barriers to pursuing solutions to problems through existing
political means.
4. Is the proposed amendment consistent with related constitutional
doctrine that the amendment leaves intact?
Because the Constitution gains much of its force from its
cohesiveness as a whole, it is vital to ask whether an amendment would
be consistent with constitutional doctrine that it would leave
untouched. Does the amendment create an anomaly in the law? Such an
anomaly is especially likely to occur when the proposed amendment is
offered to overrule a Supreme Court decision, although the danger
exists in other circumstances as well.
To be sure, every amendment changes constitutional doctrine. That
is, after all, the function amendments serve. A difficulty occurs only
when the change has the unintended consequence of failing to mesh with
aspects of constitutional doctrine that remain unchanged.
This problem does not arise when whole areas of constitutional law
are reformulated. For example, the Sixteenth Amendment, permitting
Congress to enact an income tax, was necessitated by the Court's ruling
in Pollock v. Farmers Loan & Trust Co. that a specific limitation on
the taxing power in the Constitution precluded a tax on income. That
provision was grounded in our history as colonies and in concerns among
slaveholding states that the federal government would impose a ``direct
tax'' on slaves. With passage of the Thirteenth Amendment, ending
slavery, the tax limitation itself became anomalous, and a
constitutional amendment was deemed necessary to remove the anomaly.
The Sixteenth Amendment reflected a repudiation of the original
decision of the framers in light of changed circumstances, which is
precisely the kind of broad change in policy for which the amendment
process was designed. It does not follow, however, that an amendment
must always overrule an entire body of law in order to comport with
this Guideline. Although the Dred Scott decision, which struck down the
federal government's attempts to restrict slavery, was embedded in the
law of property, Congress did not revisit all of property law when it
enacted the Thirteenth Amendment, and its failure to do so in no way
damaged the coherence of constitutional doctrine.
In contrast, some proposed amendments make changes that are
difficult to reconcile with underlying legal doctrine that the
amendments leave undisturbed. This problem arises most often when
framers of amendments focus narrowly on specific outcomes without also
thinking more broadly about general legal principles.
The proposed flag desecration and campaign finance amendments
illustrate this difficulty. The Supreme Court's flag desecration
decisions, although commanding only 5-4 majorities, were consistent
with several lines of the Court's well-established First Amendment
decisions. In those cases, the Court had recognized both that some
forms of conduct are primarily symbolic speech, and hence are entitled
to full First Amendment protection, and that laws designed to suppress
a particular point of view are almost never permissible, especially
when the speech is a form of protest against the very government that
is seeking to prohibit the activity.
If an amendment were enacted to permit the government to
criminalize flag desecration, it would create the first exception to
the First Amendment by specifically allowing government to censor only
one type of message--one that expressed an antigovernment point of
view.\10\ This result is difficult to reconcile with other principles
that the amendment's drafters would apparently leave intact. One
wonders, for example, whether the amendment would permit legislation
outlawing only those flag burnings intended as protest against
incumbent officeholders.
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\10\ It might also create exceptions to other First Amendment
doctrines, such as the prohibitions on prior restraint, overbreadth,
and vagueness. Whether it would in fact have this effect is far from
clear, however, because there has been remarkably little substantive
discussion of the ramifications of the amendment. This problem is
addressed more fully in the commentary to Guideline Six.
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Similarly, the campaign finance amendment presents at least two
sets of anomalies in First Amendment jurisprudence. The amendment would
overrule that portion of Buckley v. Valeo \11\ that stuck down a
limitation on the amount of money that candidates for elected office
can spend, either from lawfully raised contributions or from their own
personal funds. The theory of the Buckley decision is that money is the
means by which candidates amplify their messages to the electorate and
that placing limits on spending is equivalent to a limit on speech,
which violates the First Amendment, particularly in the context of an
election.
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\11\ We intend neither endorsement nor disapproval of the Supreme
Court's decision in Buckley v. Valeo. Some of our members believe it
was wrongly decided; others believe that it was rightly decided. We
take no position on the merits of the case but intend only to discuss
the effects on existing constitutional law of proposed amendments that
address the Buckley decision.
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The proposed amendment would allow Congress and the states to set
limits on the amount a candidate could spend on elections, but would
not alter the law regarding governmental attempts to control the
amounts spent on other types of speech. If the amendment were narrowly
construed to apply only to express advocacy for or against a candidate,
it would have the effect of shifting money to issue advocacy, which is
often not so subtly designed to achieve the same ends--election of a
particular candidate. For example, the advertisements against cuts in
Medicare and Social Security in the 1996 campaign were plainly efforts
to aid Democratic candidates, and those against certain abortion
procedures were intended to aid Republican candidates. On the other
hand, if the amendment were broadly construed, it would have the
anomalous effect of placing a greater limit on speech in the context of
elections than in the context of commercial products or cultural
matters, a result that is difficult to square with the core notion of
what the First Amendment is intended to protect.
One of the underlying reasons for the result in Buckley is the fear
that statutory spending limits would be set by incumbents, who would
make those limits so low that challengers would, as a practical matter,
be unable to succeed. But the amendment would allow legislatures to set
``reasonable'' spending limits. The Court would therefore find itself
in the anomalous and unenviable position of deciding whether the
amounts chosen by incumbents, or perhaps by state ballot initiatives,
met the new constitutional standard, instead of doing what it does in
all other First Amendment cases: forbidding the government from setting
any limits on the amount of speech, whether reasonable or not.
5. Does the proposed amendment embody enforceable, and not purely
aspirational, standards?
The United States Constitution is not a theoretical enterprise. It
is a legal document that spells out a coherent approach to government
power and processes while also guaranteeing our most fundamental
rights. More than two centuries of experience underscore the wisdom of
continuing that approach. The addition of purely aspirational
statements, designed solely for symbolic effect, would lead interest
groups to attempt to write their own special concerns into the
Constitution.
It follows that advocates of amendments should think carefully
about how the amendments will be enforced. In Common Sense, Thomas
Paine expressed the revolutionary notion that was the founding wisdom
of our nation: in America, ``the law is King.'' Everyone, regardless of
social station or political rank, must follow the law. A provision
susceptible of being ignored because no one can require its observance
permits the kind of executive or legislative lawlessness that our
founders wished to prevent. A provision that may be willfully ignored
when those charged with observing it find the result inconvenient or
undesirable undermines the rule of law, the government's own
legitimacy, and the Constitution's special stature in our society.
The proposals for a balanced budget amendment illustrate the need
to think carefully about means of enforcement. The amendment itself
does not specifically set forth the means by which it would be
enforced. A Congress that has had difficulty reaching a balanced budget
without a constitutional amendment might have similar difficulties if
it was not subject to a judicial or presidential check. Without such a
check, a balanced budget amendment might be nothing more than an
aspirational standard.
Of course, most existing constitutional amendments are also silent
regarding the means of enforcement. Since Marbury v. Madison, however,
there has been a presumption that judicial enforcement will generally
be available. If its proponents intend and the courts find the balanced
budget amendment to be similarly enforceable, it raises no issues under
this Guideline. But it is not clear that the proponents so intend.
Granting to courts the right to determine when outlays exceed receipts
and to devise the appropriate remedy for such a constitutional
violation would arguably constitute an unprecedented expansion of
judicial power. If proponents of the amendment do not intend these
consequences, there is a risk that the amendment will be purely
aspirational or that it will be enforced in ways they might find
objectionable.
Questions also arise about other means of enforcement. Could the
President refuse to spend money in order to remedy a looming
unconstitutional deficit? The practice, known as impoundment, is
generally thought to be unavailable to the President unless
specifically authorized by Congress. However, an official from the
Department of Justice testified in hearings before the Senate Judiciary
Committee that, if the amendment were enacted, the President would be
duty-bound to impound money or take other appropriate action to prevent
an unbalanced budget.\12\ Moreover, in such event, and absent some
controlling statute, the choice of which programs to cut and in which
amounts would be entirely up to the President.
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\12\ U.S. Congress, Senate, Hearing before the Judiciary Committee
on S.J. Res. 1 (testimony of Assistant Attorney General Walter
Dellinger), 104th Cong., 1st sess., January 5, 1995.
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6. Have proponents of the proposed amendment attempted to think through
and articulate the consequences of their proposal, including
the ways in which the amendment would interact with other
constitutional provisions and principles?
When the original Constitution was drafted, the delegates to the
Constitutional Convention regarded the new document as a unified
package. Much energy was directed to considering how the various parts
of the Constitution would interact with each other and to the political
philosophy expressed by the documents as a whole. The amendment process
is necessarily much more ad hoc. Consequently, proponents of new
amendments need to be especially careful to think through the legal
ramifications of their proposals, considering, for example, how their
proposals might shift the balance of shared and separated powers among
the branches of the federal government or affect the distribution of
responsibilities between the federal and state governments. They should
also explore how their proposals mesh with the Constitution's
fundamental commitment to popular sovereignty and to the guarantees of
liberty, justice, and equality.
Consider an example: a proposed textual limitation on some forms of
free speech might provide a rationale for limiting other speech. The
campaign finance proposal would authorize Congress and the states to
place limits on political campaign spending. While purportedly aimed at
limiting the influence of wealthy donors, the amendment might establish
as constitutional law that the government could ration core political
speech to serve a variety of legitimate government interests. If the
amendment were broadly construed, not only could a legislature then act
to equalize participation in political debate by limiting spending, but
it could also curtail expenditures relevant to a particular issue in
order to secure greater equality in the discussion of that issue.
Moreover, even though its sponsors do not intend to impose
financial limits on the press, the proposed amendment itself contains
no such restriction. Certainly, the value of a newspaper endorsement,
at least equivalent to the cost of a similarly sized and placed
advertisement, could easily violate an expenditures limit. Traditional
jurisprudence treats freedom of the press no more expansively than
freedom of speech. Rather than maintain the uninhibited, robust, and
wide-open dialogue that the Constitution presently guarantees, the
proposed amendment arguably permits the rationing of speech in amounts
that satisfy the most frequent targets of campaign criticism--current
officeholders, who would have a self-interest in limiting the speech of
those who disagree with them. It is also not unreasonable to anticipate
that officeholders would attempt to apply such restrictions to a wide
range of press commentary, or to other areas where wealth or access
enhance the speech opportunities of their political opponents--on the
theory of equalizing speech opportunities. The result would be yet
another advantage for incumbents, who already enjoy advantages due to
higher name recognition, greater free media opportunities as
officeholders, and a well-developed fund-raising network.\13\
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\13\ The difficulties discussed here overlap with those set forth
in Guideline Four.
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The failed attempt to add an amendment to the Constitution
expressly prohibiting gender discrimination provides another example.
Proponents of the equal rights amendment were never able to satisfy
some who questioned the specific legal effects of the amendment.
Questions were raised, for instance, about whether the amendment would
completely prohibit the government from making gender distinctions in
assigning troops to combat or individuals to military missions. This
failure to explain its legal implications caused many to doubt the
wisdom of the amendment
7. Has there been full and fair debate on the merits of the proposed
amendment?
The requirement that amendments must be approved by supermajorities
make it more difficult to amend the Constitution than to enact an
ordinary law. In theory, this requirement should produce a more
deliberate process, which, in turn, should mean that the issues are
more fully ventilated in Congress. Unfortunately, reality does not
always comport with theory. The result is that the process becomes more
like voting to approve a symbol than deciding whether to enact a
binding amendment to our basic charter. Congress should thus adopt
procedures to ensure that full consideration is given to all proposals
to amend the Constitution before votes are taken either in committee or
on the floor.
For most amendments, there are two types of questions: the policy
questions, which include whether the basic idea is sound and whether
the amendment is the type of change that belongs in the Constitution,
and the operational questions, including whether there are problems in
the way that the amendment will work in practice. If the answer to
either part of the policy inquiry is ``no,'' then the operational
questions need not be asked. Even when there is a tentative ``yes'' to
the policy questions, the answer may become ``no'' when the operational
problems are recognized. Thus, in general, it is appropriate that
Congress hold at least two sets of hearings, one for each set of
issues. At each, both the prime hearing time (normally at the start of
the day) and overall hearing time should be equally divided between
proponents and opponents.
The balanced budget amendment illustrates this need for dual-track
consideration. Proponents and opponents of the amendment have debated
the policy questions at length. These include whether the existing
statutory avenues have failed, whether Social Security and perhaps
other programs should be excluded, and whether minorities in one House
should be given the absolute power to block both tax increases and
increases in the debt ceiling.
Unfortunately, there has been less consideration of operational
questions. For example, how is the amendment to be enforced? How would
the exception for declarations of war be triggered? Would the use of
cash receipts and disbursements be subject to evasion, and would it
lead to uneconomical decisions, such as to enter into leases rather
than purchases for federal property in order to bring the budget into
balance for the current year?
Similarly, campaign finance proposals illustrate the need for a
two-track approach. Most of the debate in Congress concerning
constitutional reform of campaign finance practices has centered on the
``big picture'' issues. Members of Congress deserve praise for their
efforts to come to grips with these issues. They have debated whether
First Amendment rights are necessarily in tension with the integrity of
our political campaigns, whether the First Amendment should be amended
at all, and whether spending large amounts of money in campaigns is
bad. However, members have spent relatively little time considering
operational problems created by ambiguity in the language of a proposed
amendment. For example, what are ``reasonable'' limits and who would
determine them? What effect would the amendment have on issue advocacy
and educational and ``get out the vote'' efforts of parties and civic
groups?
These examples demonstrate that careful deliberation by
congressional committees is essential. Committees should not move
proposed amendments too quickly, and they should ensure that
modifications to proposed amendments receive full consideration and a
vote before they reach the floor, with a committee report explaining
the options considered and the reasons for their adoption or rejection.
Perhaps a two-thirds committee vote should be required to send a
proposed constitutional amendment to the floor, thereby mirroring the
requirement for final passage. If two-thirds of those who are most
knowledgeable about a proposed constitutional amendment do not support
it, the amendment probably should never be considered by the full House
or Senate.
Although the relevant committees may have the greatest expertise
regarding a proposed constitutional amendment, because its enactment
will have far-reaching impact, floor debates should not be cut short
even if there has been previous floor debate on an amendment in the
current or a previous Congress. There should be opportunities for full
discussion and votes on additions, deletions, and modifications to the
reported language. The flag desecration amendment's handling highlights
the need for safeguards. At the end of the 105th Congress, the Senate
Majority Leader sought unanimous consent for consideration of the
amendment, with a two-hour limit on debate equally divided between
proponents and opponents and with no amendments or motions in order.
To ensure that floor votes are taken only on language that has been
previously scrutinized, each House should adopt rules requiring that
only changes to a proposed constitutional amendment that have been
specifically considered in committee be eligible for adoption on the
floor, with one exception: votes on clarifying language should be
permitted with the consent of the committee chair and ranking member,
or by a waiver of the rules passed by a supermajority vote. Otherwise,
substantive changes not previously considered, but approved by a
majority vote on the floor, should be referred back to committee for
such further proceedings, consideration, and possible modification as
needed to ensure that they have been thoroughly evaluated, followed by
a second vote on the floor.
8. Has Congress provided for a nonextendable deadline for ratification
by the states so as to ensure that there is a contemporaneous
consensus by Congress and the states that the proposed
amendment is desirable?
The Constitution should be amended only when there is a
contemporaneous consensus to do so. If the ratification process is
lengthy, ultimate approval by three-quarters of the states may no
longer reflect such a consensus. Accordingly, there should be a
nonextendable time limit for the ratification of all amendments,
similar to the seven-year period that has been included in most recent
proposed amendments.
If extensions are permitted at all, they should be adopted by the
same two-thirds vote that approved the amendment originally. Moreover,
states that ratified the amendment during the initial time period
should be allowed to rescind their approvals, thereby assuring a
continuing consensus.
Congress's decision to extend the ratification period for the equal
rights amendment on the eve of the expiration of the allotted time
illustrates the problems that this Guideline addresses. Although many
states ratified the amendment in the period immediately after initial
congressional approval, there had been a shift in public opinion by the
time that Congress extended the deadline. It was therefore far from
clear that the legislatures in all the ratifying states would have
approved the amendment if it had been presented to them again after the
ratification extension. The perception that the amendment might be
adopted despite the absence of a contemporary consensus supporting it
contributed to the divisiveness that characterized the campaign for its
adoption.
Appendix--A Compendium of Constitutional Amendments
i. the original amendments
Amendment I (1791). Prohibits establishment of religion; guarantees
freedom of religion, speech, press, and assembly.
Amendment II (1791). Prohibits infringement of the right of the
people to keep and bear arms.
Amendment III (1791). Prohibits the quartering of soldiers in any
house during times of peace without consent of owner or during time of
war in manner not prescribed by law.
Amendment IV (1791). Guarantees security against unreasonable
searches and seizures; requires that warrants be particular and be
issued only on probable cause supported by oath or affirmation.
Amendment V (1791). Requires presentment to grand jury for infamous
crimes; prohibits double jeopardy; prohibits compelled self-
incrimination; guarantees due process of law; requires that property be
taken only for public use and that owner be justly compensated when
taken.
Amendment VI (1791). Guarantees right to speedy and public trial by
impartial jury, compulsory process, and counsel in criminal
prosecutions.
Amendment VII (1791). Guarantees right to jury trial in suits at
common law where value in controversy exceeds twenty dollars.
Amendment VIII (1791). Prohibits excessive bail or fines; prohibits
cruel and unusual punishment.
Amendment IX (1791). Guarantees unenumerated rights that are
retained by the people.
Amendment X (1791). Reserves to the states or the people rights not
delegated to the United States by the Constitution.
Amendment XXVII (1992).\1\ Provides that no law changing
compensation for members of Congress shall take effect until after next
House election.
---------------------------------------------------------------------------
\1\ Although this amendment was part of the original package sent
to the states by the first Congress in 1791, it was not ratified until
1992.
---------------------------------------------------------------------------
ii. reconstruction amendments
Amendment XIII (1865). Prohibits slavery; authorizes congressional
enforcement of Amendment's provisions.
Amendment XIV (1868). Defines U.S. and state citizenship and
prohibits state abridgment of privileges and immunities of U.S.
citizens; guarantees due process of law and equal protection of law
against state infringement; requires reduction of representation in
Congress when right to vote infringed; prohibits public officers who
participate in rebellion from holding public office; prohibits
questioning of public debt; makes void any debt incurred in aid of
rebellion against the United States; authorizes congressional
enforcement of Amendment's provisions.
Amendment XV (1870). Prohibits abridgment of the right to vote on
account of race; authorizes congressional enforcement of Amendment's
provisions.
iii. other amendments
A. Extensions of the Franchise
Amendment XVII (1913). Provides for popular election of Senators.
Amendment XIX (1920). Prohibits denial of right to vote on account
of sex; authorizes congressional enforcement of the Amendment's
provisions.
Amendment XXIII (1961). Grants right to vote in presidential
elections to citizens of the District of Columbia; authorizes
congressional enforcement of the Amendment's provisions.
Amendment XXIV (1964). Prohibits poll taxes for federal elections;
authorizes congressional enforcement of the Amendment's provisions.
Amendment XXVI (1971). Prohibits denying right to vote on account
of age to citizens over eighteen; authorizes congressional enforcement
of the Amendment's provisions.
[Note: two reconstruction amendments also relate to the franchise:
Amendment XIV (1868). Requires reduction in representation in
Congress for states that deny the right to vote to male citizens over
the age of twenty-one.
Amendment XV (1870). Prohibits denying the right to vote on account
of race, color, or previous condition of servitude.]
B. Regulation of Election and Tenure of President
Amendment XII (1804). Provides for separate electoral college
voting for President and Vice President.
Amendment XX (1933). Provides that presidential term ends on
January 20; provides rules covering situations where President-elect or
Vice President-elect dies before inauguration.
Amendment XXII (1951). Prohibits President from serving more than
two terms.
Amendment XXV (1967). Provides that in case of removal or death of
President, Vice President shall become President; provides mechanism
for filling vacancies in office of Vice President; provides mechanism
for dealing with Presidential disability.
C. Amendments Overruling Supreme Court Decisions
Amendment XI (1798). Prohibits suits in U.S. courts against state
by citizen of another state (overruling Chisholm v. Georgia, 2 U.S. [2
Dall.] 419 [1793]).
Amendment XVI (1913). Authorizes income tax (overruling Pollock v.
Farmers Loan & Trust Co., 157 U.S. 429 [1895]).
[Note: two other amendments, one a Reconstruction amendment and one
dealing with the right of eighteen-year-olds to vote--listed above
under extending the franchise--also overruled Supreme Court decisions:
Amendment XIV (1868). Grants U.S. citizenship to all persons born
or naturalized in the United States (overruling Dred Scott v. Sandford,
60 U.S. [19 How.] 393 [1857]).
Amendment XXVI (1971). Prohibits abridgment of right to vote on
account of age for citizens who are eighteen and over (overruling
Oregon v. Mitchell, 400 U.S. 112 [1971]).]
D. The Prohibition Amendments
Amendment XVIII (1919). Establishes Prohibition; grants to Congress
and the states concurrent power to enforce the Amendment's provisions.
Amendment XXI (1933). Repeals Prohibition; prohibits importation of
intoxicating liquors into a state in violation of the laws of that
state.
The Chairman. We are pleased to have with us today Prof.
Richard Parker of the Harvard University School of Law.
Professor Parker has worked with this committee for many years
on this amendment, and we are very grateful to him.
Next we have Gen. Pat Brady, whom I just introduced and who
is chairman of the Citizens Flag Alliance. We really appreciate
having you here, General Brady, and appreciate the service you
have given to our country.
We also have Mr. Gary May, a distinguished Vietnam veteran
and a professor of sociology at Southern Indiana University.
Happy to have you with us, Mr. May.
Next we have Maribeth Seely, an elementary school teacher
from New Jersey, who will enlighten us today about how school
children feel about the American flag.
We are also pleased to have Rev. Nathan Wilson of the West
Virginia Council of Churches. Reverend, we are happy to have
you with us.
And we have retired Lt. Gen. Edward Baca from New Mexico,
who has a special flag and a special story for us today.
So, Professor Parker, we will begin with you, and then we
will just go across the table.
PANEL CONSISTING OF RICHARD D. PARKER, WILLIAMS PROFESSOR OF
LAW, HARVARD LAW SCHOOL, CAMBRIDGE, MA; PATRICK H. BRADY,
CHAIRMAN, BOARD OF DIRECTORS, CITIZENS FLAG ALLIANCE, AND MEDAL
OF HONOR RECIPIENT, SUMNER, WA; GARY E. MAY, ASSOCIATE
PROFESSOR OF SOCIAL WORK, UNIVERSITY OF SOUTHERN INDIANA,
EVANSVILLE, IN; MARIBETH SEELY, FIFTH GRADE TEACHER,
SANDYSTONE-WALPACK SCHOOL, BRANCHVILLE, NJ; REV. NATHAN D.
WILSON, EXECUTIVE DIRECTOR, WEST VIRGINIA COUNCIL OF CHURCHES,
CHARLESTON, WV; AND EDWARD D. BACA, FORMER CHIEF, NATIONAL
GUARD BUREAU, ALBUQUERQUE, NM
STATEMENT OF RICHARD D. PARKER
Mr. Parker. Thank you very much, Mr. Chairman. Thanks for
inviting me today.
As both you and Senator Leahy said, most adult Americans
support this amendment. They have supported it overwhelmingly
for 10 years, along with 49 of the State legislatures which
petitioned Congress. This support has been sustained in the
face of virtually uniform opposition from the big media and
from various elite groups like law professors, from which I
come.
This is a popular cause. It is a people's cause, and this
is a test of whether such a cause against such elite opposition
can still succeed in America. It is a test of Article V of the
Constitution, which is a keystone of the Constitution, for the
fact is that our Constitution at its foundation rests upon
democracy, not on people wearing black robes.
This is not just a popular amendment; it is an important
amendment. That is because it is a restorative amendment--not a
transformative amendment, a restorative amendment in two ways:
First, it restores the traditional and intended meaning of
the first amendment, a meaning that was changed, amended, if
you like, by five members of the Supreme Court. It is an effort
to preserve what Mr. Moss says in his statement submitted today
to you is so important, which is permanence in the meaning of
the Constitution. This amendment seeks to preserve the
permanence of the meaning of the first amendment that was
changed by the Supreme Court majority.
Second, it is a restorative amendment in restoring to
Congress authority to protect and preserve a vital national
resource. Now, this resource, to be sure, is invisible. It
can't be measured in dollars and cents. But it is not a matter
of mere symbolism, as has been suggested. It is a matter of
values and of principles. It has to do with respect for the
aspiration to national community in the United States of
America.
This matter of principle is vital because, without
preserving this basic respect for this basic ideal, the
exercise of liberty eventually will wither. Liberty that does
not rest on a foundation of community rests on sand. It is also
vital in that any great national project, not just military
projects but domestic reform projects, like the civil rights
legislation and movement of the 1960's, depends on the
preservation of community.
Now, the fact I believe we all know is that this value,
this principle, is now eroding. What is the evidence of that?
Because it is invisible, I probably can't point to concrete
evidence. But I do believe we do all know it. Senator Bob
Kerrey said to this committee a few years ago that there is a
tidal mud, I think he described it--I have remembered that ever
since--of decay in the country.
But I ask you, if the next President were to repeat the
words of President Kennedy at his inaugural--Ask not what your
country can do for you; ask what you can do for your country--
would the response today be what it was then?
Now, fast forward to the year 2025. What would the response
be then? Can we be sure? What is causing this erosion is not a
few acts of a few malcontents. I agree with that. What is
causing the erosion is a decision by five members of the
Supreme Court that legitimated disrespect for the flag, that
wrapped it in the mantle of the first amendment. And what is
further producing erosion is our failure to respond, to stand
up for principle. Thereby we are further legitimating and
causing young people in this country to become used to
disrespect for the flag.
By the year 2025, there may not be many people left who
remember what respect for this ideal of national unity ever
involved. So this issue is an issue that has to do with future
generations, not immediate gratification but the future of the
United States of America.
Now, is there a cost involved here? I don't have time now
to speak to this question, but I would be happy to respond to
your questions about it. There is a great deal of scare
rhetoric that surrounds this proposed amendment. There is a
great deal in the statement that Mr. Moss submitted to you.
Any significant legislative proposal or certainly any
constitutional amendment is subject to such claims. But I ask
you to think about them coolly, because most of them--indeed, I
believe all of them turn out to be empty. And I know there are
absolutists who will say there is no freedom unless anything
goes, that, as was said earlier, the most extreme forms of
dissent, quote-unquote, must be allowed. But I would suggest to
you that the American people know and I believe the Senate
knows that extremism is not only a virtue and that moderation
is not necessarily a vice.
I agree with the chairman that there is no alternative.
There is no statutory alternative. And, again, I would be happy
to respond to your questions on that point.
Let me conclude by saying that I think this is a great test
and a great opportunity. I appeal to the Senate to send this
proposed amendment to the State legislatures and let the
constitutional process work. Let article V of the Constitution
work. Let the people decide.
Thank you very much.
[The prepared statement of Mr. Parker follows:]
Prepared Statement of Richard D. Parker
Whether Congress should be permitted, if it chooses, to protect the
American flag from physical desecration has been debated for almost a
decade. The debate has evolved over time but, by now, a pattern in the
argument is clear. Today, I would like to analyze that pattern.
Consistently, the overwhelming majority of Americans have supported
flag protection. Consistently, lopsided majorities in Congress have
supported it too. In 1989, Senators voted 91-9 and Representatives 371-
43 in favor of legislation to protect the flag. Since that route was
definitively blocked by a narrow vote on the Supreme Court in 1990,
over two-thirds of the House and nearly two-thirds of the Senate have
supported a constitutional amendment to correct the Court's mistake
and, so, permit the majority to rule on this specific question. Up to
80 percent of the American people have consistently supported the
amendment.
In a democracy, the burden should normally be on those who would
block majority rule--in this case, a minority of the Congress,
influential interest groups and most of the media, along with the five
Justices who outvoted the other four--to justify their opposition. They
have not been reluctant to do so. Indeed, they have been stunningly
aggressive. No less stunning has been their unresponsiveness to (and
even their seeming disinterest in) the arguments of the popular and
congressional majority. What I am going to do is focus on the pattern
of their self-justification.
I am going to speak frankly, not just as a law professor, but as an
active Democrat. For a disproportionate share of the congressional,
interest group and media opposition has been aligned with the
Democratic Party. What has pained me, in the course of my involvement
with this issue, are attitudes toward our democracy revealed in the
structure of the argument against the flag amendment by so many of my
fellow Democrats--attitudes that would have seemed odd thirty years
ago, when I worked for Senator Robert Kennedy, but that now seem to be
taken for granted.
i. arguments about (supposed) effects of the constitutional amendment:
trivialization and exaggeration
The central focus of argument against the flag amendment involves
the (supposedly) likely effects of its ratification. Typically, these
effects are--at one and the same time--trivialized and exaggerated. Two
general features of the argument stand out: its peculiar obtuseness and
the puzzling disdain it exudes for the Congress and for the millions of
proponents of the amendment.
A. Trivialization
(1) The ``What, Me Worry?'' Argument. The first trivialization of
the amendment's effects is the repeated claim that there is simply no
problem for it to address. There are, it is said, few incidents of flag
desecration nowadays; and those few involve marginal malcontents who
may simply be ignored. The American people's love of the flag, the
argument continues, cannot be disturbed by such events. It concludes
that, in any event, the flag is ``just a symbol'' and that the
amendment's proponents had better apply their energy to--and stop
diverting the attention of Congress from--other, ``really important''
matters.
What is striking about this argument is not just its condescension
to the amendment's supporters and to the Congress which, it implies,
cannot walk and chew gum at the same time. Even more striking is its
smug refusal to recognize the point of the amendment. The point is not
how often the flag has been burned or urinated on (about 60 times over
the last four years, in fact) or who has been burning it and urinating
on it. Rather, the point has to do with our response--especially our
official response--to those events. In this case, the key response has
been that of the Court and, since 1990, of the Congress. When we are
told, officially, that the flag represents just ``one point of view''
on a par, and in competition, with that of flag desecrators and that
flag desecration should not just be tolerated, but protected and even
celebrated as free speech; when we get more and more used to acts of
desecration; then, ``love'' of the flag, our unique symbol of national
unity, is bound gradually to wither--along with other norms of
community and responsibility whose withering in recent decades is well
known.
To describe what is at stake as ``just a symbol'' is thus obtuse.
The Court's 5-4 decision was not ``just a symbol.'' It was an action of
a powerful arm of government, and it had concrete effects. To be sure,
its broader significance involved values that are themselves invisible.
The issue it purported to resolve is, at bottom, an issue of principle.
But would any of us talk of it as ``just an issue of principle'' and so
trivialize it? Surely, the vast majority of Members of Congress would
hesitate to talk that way. They, after all, voted for a statute to
protect the flag. Hence, I would have hoped that the ``What, Me
Worry?'' argument is not one we would hear from them.
(2) The ``Wacky Hypotheticals'' Argument. The second familiar way
of trivializing the amendment's effects is to imagine all sorts of
bizarre applications of a law that (supposedly) might be enacted under
the amendment. This line of argument purports to play with the terms
``flag'' and ``physically desecrate.'' Often, the imagined application
involves damage to an image (a photo or a depiction) of a flag,
especially on clothing--frequently, on a bikini or on underwear. And,
often, it involves disrespectful words of gestures directed at an
actual flag or the display of flags in certain commercial settings--a
favorite hypothetical setting is a used car lot. This line of argument
is regularly offered with a snicker and sometimes gets a laugh.
Its obtuseness should be clear. The proposed amendment refers to a
``flag'' not an ``image of a flag.'' And words or gestures or the
flying of a flag can hardly amount to ``physical desecration.'' In the
Flag Protection Act of 1989, Congress explicitly defined a ``flag'' as
taking a form ``that is commonly displayed.'' And it applied only to
one who ``knowingly mutilates, defaces, physically defiles, burns,
maintains on the ground, or tramples'' a flag. Why would anyone presume
that, under the proposed constitutional amendment, Congress would be
less careful and specific?
That question uncovers the attitude beneath the ``Wacky
Hypotheticals'' argument. For the mocking spirit of the argument
suggests disdain not only for people who advocate protection of the
American flag. It also depends on an assumption that Congress itself is
as wacky--as frivolous and as mean-spirited--as many of the
hypotheticals themselves. What's more, it depends on an assumption
that, in America, law enforcement officials, courts and juries are no
less wacky. If the Constitution as a whole had been inspired by so
extreme a disdain for our institutions and our people, could its
provisions granting powers to government have been written, much less
ratified?
B. Exaggeration
(1) The ``Save the Constitution'' Argument. Having trivialized the
effects of the proposed amendment, its opponents turn to exaggerating
those effects. First, they exaggerate the (supposed) effects of
``amending the First Amendment.'' This might, they insist, lead to more
amendments that, eventually, might unravel the Bill of Rights and
constitutional government altogether. The argument concludes with a
ringing insistence that the people and their elected representatives
must not ``tinker'' or ``tamper'' or ``fool around'' with the
Constitution.
The claim that the debate is about ``amending the First Amendment''
sows deep confusion. The truth is that the proposed amendment would not
alter ``the First Amendment'' in the slightest. The First Amendment
does not itself forbid protection of the flag. Indeed, for almost two
centuries, it was understood to permit flag protection. A 5-4 majority
of the Court altered this interpretation, only nine years ago. That
very narrow decision is all that would be altered by the proposed
amendment. The debate thus is about a measure that would restore to the
First Amendment its long-standing meaning, preserving the Amendment
from recent ``tampering.''
Adding to the confusion is the bizarre claim that one amendment,
restoring the historical understanding of freedom of speech, will
somehow lead down a slippery slope to a slew of others undermining the
Bill of Rights or the whole Constitution. A restorative amendment is
not, after all, the same thing as an undermining amendment. What's
more, the process of amendment is no downhill slide. About 11,000
amendments have been proposed. Only 27--including the Bill of Rights--
have been ratified. If there is a ``slope'', it plainly runs uphill.
The scare rhetoric, then, isn't only obtuse. It also manifests disdain
for the Congress to which it is addressed.
The greatest disdain manifested by this line of argument, however,
is for the Constitution and for constitutional democracy--which it
purports to defend. Article V of the Constitution specifically provides
for amendment. The use of the amendment process to correct mistaken
Court decisions--as it has been used several times before--is vital to
maintaining the democratic legitimacy of the Constitution and of
judicial review itself. To describe the flag amendment as ``tinkering
with the Bill of Rights''--when all it does, in fact, is correct a
historically aberrant 5-4 decision that turned on the vote of one
person appointed to office for life--is to exalt a small, un-elected,
tenured elite at the expense of the principle and practice of
constitutional democracy.
(2) The ``Censorship'' Argument. The second exaggeration of
(supposed) effects of the proposed amendment portrays it as inviting
censorship. If Congress prohibits individuals from trashing the
American flag, opponents say, it will stifle the freedom of speech. In
particular, they continue, it will suffocate expression of
``unpopular'' or ``minority'' points of view. It will thereby
discriminate, they conclude, in favor of a competing point of view.
This line of argument is, essentially, the one adopted by a 5-4
majority of the Court.
It is, however, mistaken. The argument ignores, first of all, the
limited scope of laws that the amendment would authorize. Such laws
would block no message. They would leave untouched a vast variety of
opportunities for self-expression. Indeed, they would even allow
expression of contempt for the flag by words--and by deeds short of the
``physical'' desecration of a flag. Obviously, there must be some limit
on permissible conduct. This is so even when the conduct is, in some
way, expressive. What's important is this: Plenty of leeway would
remain, beyond that narrow limit, for the enjoyment of robust freedom
of speech by all.
Secondly, the argument that such laws would impose a limit that
discriminates among ``competing points of view'' misrepresents the
nature of the American flag. Our flag does not stand for one ``point of
view.'' Ours is not like the flag of Nazi Germany or the Soviet Union--
although opponents of the proposed amendment typically make just that
comparison. The American flag doesn't stand for one government or one
party or one party platform. Instead, it stands for an aspiration to
national unity despite--and transcending--our differences and our
diversity. It doesn't ``compete against'' contending viewpoints.
Rather, it overarches and sponsors their contention. The 5-4 majority
on the Court misunderstood the unique nature of our flag. A purpose of
the flag amendment is to affirm this uniqueness and, so, correct that
mistake.
Thirdly--and most importantly--opponents obtusely ignore the fact
that a primary effect of the amendment would be precisely the opposite
of the one ``predicted'' by their scare rhetoric. Far from
``censoring'' unpopular and minority viewpoints, the amendment would
tend to enhance opportunity for effective expression of those
viewpoints. A robust system of free speech depends, after all, on
maintaining a sense of community. It depends on some agreement that,
despite our differences, we are ``one,'' that the problem of any
American is ``our'' problem. Without this much community, why listen to
anyone else? Why not just see who can yell loudest? Or push hardest? It
is thus for minority and unpopular viewpoints that the aspiration to--
and respect for the unique symbol of--national unity is thus most
important. It helps them get a hearing. The civil rights movement
understood this. That is why it displayed the American flag so
prominently and so proudly in its great marches of the 1960's.
If we become accustomed to cumulative acts of burning, trampling
and urinating on the flag, all under cover of the Supreme Court, where
will that leave the next Martin Luther King? Indeed, where will it
leave the system of free speech as a whole? As the word goes forth that
nothing is sacred, that the aspiration to unity and community is just a
``point of view'' competing with others, and that any hope of being
noticed (if not of getting a hearing) depends on behaving more and more
outrageously, won't we tend to trash not just the flag, but the freedom
of speech itself? Opponents of the proposed amendment imagine
themselves as champions of a theory of free speech--but their argument
is based in a strange disdain for it in practice.
I am, of course, preaching to the choir. The Senate has already
voted 91-9 for a flag protection law. Most Senators have, therefore,
rejected the ``censorship'' argument. Now--with the Court absolutely
barring such a law on the mistaken ground that any specific protection
of the flag discriminates among competing ``points of view''--Senators
who support protection of the American flag simply have no alternative
but to support the proposed constitutional amendment.
ii. argument about (supposed) sources of support for the amendment
Most opponents of the amendment don't confine themselves to
misrepresenting its effects. Repeatedly, they supplement those
arguments with ad hominem, disparaging claims about its supporters as
well. Again, they combine strategies of trivialization and
exaggeration. What's remarkable is that they seem to assume their
generalizations will go unchallenged. They seem to take for granted a
denigrating portrayal of others--as well as their own entitlement to
denigrate.
The denigration is not exactly overt. It often takes the form of
descriptive nouns and verbs, adjectives and adverbs, woven into
apparently reasonable sentences. By now, we're so used to these terms
of derision that we may not notice them or, worse, take them as signs
of ``wisdom.''
The trivializing portrayal of supporters tends to include
references to the (supposedly) ``simple'' or ``emotional'' nature of
their views--which, in turn, are trivialized as mere ``feelings.'' It's
often asserted that they are behaving ``frivolously.'' (Only the
opponents, according to themselves, are ``thoughtful'' people.) Elected
officials who back the amendment are said to be ``pandering'' or
``cynical'' or taking the ``easy'' course. (Only opponents, according
to themselves, are ``courageous'' or ``honest.'') The patriotism of
supporters is dismissed as ``flag-waving.''
The (negatively) exaggerated portrayal tends to include references
to the (supposedly) ``heated'' or ``aggressive'' or ``intolerant''
nature of support for the amendment. (Only the opponents, according to
themselves, are ``deliberative,'' ``restrained'' and ``respectful of
others.'') The goal, of course, is to suggest (not so subtly) that the
supporters are fanatics or bullies--that they are like a mob that must
be stopped before they overwhelm law, order and reason.
A familiar argument fusing trivialization and exaggeration--a
Washington Post editorial of April 24, 1998 is typical--lumps the flag
amendment's supporters with supporters of a great variety of other
recently proposed amendments. It smears the former by equating them to
others who advocate very different measures more readily belittled as
silly or feared as dangerous. There is a name for this sort of
argument. It is guilt-by-association. (But then the opponents of the
flag amendment, according to themselves, would never employ such
rhetoric, would they?)
This is odd. These ``thoughtful'' people seem to be in the habit of
making descriptive generalizations that are not just obtuse but false--
not just disdainful but insulting. Why?
iii. ignoring counter-argument
Part of the answer, I believe, is that opponents of the flag
amendment are in another habit. It is the habit of not really listening
to the other views. Not listening makes it easier to caricature those
views. And, in turn, the caricature of those views makes it easier not
to listen to them.
Anyone who's been involved with this issue--on either side--over
the years, and who has had an opportunity to see every reference to it
in the media across the county, can describe one repeating pattern.
Most of the time, the issue is not mentioned. Then, in the weeks before
one or another congressional consideration of it, there comes a cascade
of editorials and commentary--about 90 percent hostile to and
professing alarm about the amendment. Supporters can describe the other
aspect of the pattern: most of the media simply will not disseminate
disagreement with that point of view. Speaking from my experience, I
can tell you that only a few newspapers have been willing to publish
brief responses to what they assume is the one ``enlightened'' view--
their own.
There is an irony here. Those most alarmed about (supposed)
discrimination against the views of people who burn or urinate on the
American flag are themselves in the habit of discriminating against the
views of others who favor protecting the flag. Warning of a (supposed)
dampening of robust debate, they dampen robust debate--and they do it
in good conscience and with no conscious intent to apply a double
standard. What explains such puzzling behavior?
iv. the value of public patriotism
I have characterized the question presented by the flag amendment
as involving the value of ``community'' at the national level. But most
opponents seem disinclined to accept that formulation. The question for
them seems to involve something they imagine to be narrower than
community. For them, the question seems to involve the value of
``patriotism.'' Beneath much of the opposition is, I think, an
uneasiness about patriotism as a public value.
I know: Every opponent of the flag amendment insists that he or she
is a patriot, that he or she ``loves the flag'' and, personally, would
defend one with life and limb. I do not doubt their sincerity. But I
trust I will be forgiven if I also try to understand the actual
behavior of opponents and the language they use to describe the
amendment and its source of support. I trust I will be forgiven if I
try to understand all this in terms of a distinction that I think they
make between ``personal'' and ``public'' patriotism.
I believe that many opponents of the amendment have come to see
patriotism as a strictly personal matter--much like religious faith. As
such, they affirm its value. But they are, I believe, uneasy about
public patriotism. If the uneasiness were focused only on government
coercion of patriotism (a coerced flag salute, for example) few would
differ. But it is focused, also, on its protection by government (that
is what the flag amendment is about), and to some degree it may extend
to governmental subsidization and facilitation of public patriotism as
well.
For the comparison made by opponents of the flag amendment between
patriotism and religious faith carries consequences with it. Two main
assumptions lead them to oppose even minor sorts of government
assistance to religion. First, there is the assumption that religion is
not just deeply personal, but deeply emotional and potentially
explosive as well, and that any entanglement of government with
religion may therefore produce dangerous conflict and official
oppression of freedom and diversity. Second, there is the assumption
that, in an increasingly secular age, religious faith is not really
terribly relevant to good ``governance'' anyway--that is, unless
``religion'' is defined to encompass a wide range of currently accepted
secular values.
The same kinds of assumptions underlie both the ``exaggeration''
and the ``trivialization'' arguments made by opponents of the flag
amendment. First, they imagine that public patriotism taps into raw
emotions that threaten to cause conflict and official oppression. Thus
they insist that the proposed amendment endangers constitutionalism and
freedom. Second, they imagine public patriotism as narrowly
militaristic and old-fashioned. After the end of the Cold War, what
place is there for it? And, in an age of ``multiculturalism,'' on one
hand, and of ``globalism,'' on the other, what need is there for it in
government and in public life? When the amendment's opponents do affirm
the public value of the flag, moreover, they tend to do so by defining
``the flag'' to stand simply for ``the freedom to burn it.''
These assumptions and these arguments are perverse. So, too, is the
underlying equation of patriotism to religion. For public patriotism is
surely basic to motivating broad participation in, and commitment to,
our democracy. Far from endangering freedom and political order, it is
essential to the effective enjoyment of freedom and maintenance of the
legitimacy of government. If national projects, civilian or military,
are to be undertaken--if our inherited ideals of liberty and equality
are to be realized through concentrated national effort--public
patriotism simply has to be valued; its unique symbol should,
therefore, be protected.
Let met speak, finally, as a Democrat: When I was growing up,
Democrats knew all this. My own hero, Senator Robert Kennedy, would
never have doubted the value of public patriotism. He would never have
dismissed it as trivial, dangerous or ``right wing.'' I believe that he
would have voted--as his son did in 1995 and 1997--to restore to the
First Amendment the meaning it had, in effect, for two centuries of our
history. That belief encourages me to see this as a truly nonpartisan
effort, deserving fully bipartisan support. And, so, it encourages me
to urge the Senate as a whole to permit consideration of the proposed
amendment by representatives of the people in the states, submitting
this matter to the great democratic process established by Article V of
the Constitution.
The Chairman. Thank you, Professor Parker.
Major General Brady.
STATEMENT OF PATRICK H. BRADY
Mr. Brady. Thank you very much, sir. I want to address the
monumental importance of our flag to those in combat. I think
it is especially relevant today to the young Americans and to
their families who will face the horrors of combat and even the
worst horrors of captivity.
Consider how many flags will be burned by some in this
country if their lives are interrupted and they are ordered
into combat. And what will those burnings do to the families
mourning the capture or death of their loved ones? And just as
important, what will those burnings do to the unity of this
Nation?
The great heartbreak for the families of those sacrificing
for America would be that the hateful conduct of the cowards
and the others who burn the flag would be perfectly legal. At
least those of us who served in Vietnam and watched our flag
burn knew that the flag we served under was worth protecting.
The first action of our adversaries in Serbia was to burn
the American flag. The first action of the families of our
three GI's captured in Serbia was to fly the American flag.
What other symbol could better express the values of both sides
as well as the profound differences? And surrounded by the
enemy and facing death and capture, the first action of the
downed F-117 pilot in Serbia was to reach for a folded American
flag in his flight suit. And I ask you why. He said that the
flag reminded him of those who prayed for him, and that was all
of America. It inspired in him hope, strength, and endurance,
and those are the three essentials to combat survival.
The importance of the flag in combat is highlighted by the
fact that more Medals of Honor have been awarded for flag-
related heroism than for any other action. The overwhelming
majority of living recipients passionately support the right of
the people to protect their flag.
For that right, those behind me who have been introduced
carry enemy ordnance from and have left body parts on the great
battlefields of this century.
George Whalen, behind me, of Utah, he saw our flag raised
on Iwo Jima. He said that that famous flag raising erased all
his doubts and fears about victory. Three days later, he saved
countless lives while being wounded three times.
For many years, our prisoners in North Vietnam found hope,
strength, and endurance in the daily pledge to a tattered flag
made from scraps by fellow POW Mike Christian. The communists
found the flag. They brutally tortured Mike for making it. They
were determined that there would be no hope, strength, or
endurance in the Hanoi Hilton. It didn't work. Mike just made
another flag.
In the movie ``Saving Private Ryan,'' his simple haunting,
burning question was whether or not he was worth the suffering
of Captain Miller and those who saved his life.
Those opposed to the flag amendment tell us that it is the
freedom to burn the flag that makes us worthy of their
sacrifices. I wonder how many would use that line to inspire
our youth to mobilize today, to tell them they were fighting
for the right to burn Old Glory. If Private Ryan's saviors
heard that they died on America's battlefields so that their
flag could be burned on America's street corners, they would
turn over in their graves. They understood how precious free
speech is. They died for it. And those who will serve in Kosovo
may die for it as well.
What neither would understand is that defecating on the
American flag is speech. And they understood how precious the
Constitution is. It was written in their blood. The beauty of
the flag amendment is that it does not change the Constitution.
It restores the Constitution. It simply takes the power over
the flag away from the courts, who have declared that
defecating on the flag is speech, and returns it to the people
who can then decide whether or not to protect it.
The Constitution gives us the right to peacefully protest
an action of our country, and that is what we are doing. It
does not give us the right to violently protest the foundation
of our country, and that is what flag burners do. This is a
values issue, and the entire debate over values is centered on
what we teach our children. Flag burning is wrong. But what it
teaches is worse. It teaches our children disrespect. It
teaches that the hateful conduct of a minority is more
important than the will of the majority. It teaches that our
laws need not reflect our values, and it teaches that the
courts--not the people, not the Congress, but the courts own
the Constitution.
Captain Miller's dying words to Private Ryan were, ``Earn
this.'' Their flag wasn't earned to be burned, nor was the flag
tucked in the flight suit of the downed American pilot.
For over a year now, there has been a clamor from many in
Congress that we should listen to the people, and that is our
plea as well. Just simply let the people decide. Enough of the
issues that tear us apart. We need something that unites us.
And on hundreds of battlefields our troops were united under
Old Glory. They were inspired by the values it embodies, and it
brought them together for victory.
The flag amendment will signal a Congress dedicated to
unity, a Congress that respects and acknowledges the will of
the people. And now is a great time, I think, for us to begin
to wave the flag, time to save Private Ryan's flag. It is time
to recapture Mike Christian's flag, to restore the flag of the
families of our three POW's, and all the flags that will be in
the flight suits and the backpacks of the young troops who
serve today and who will be inspired by the hope, the strength,
and the endurance that is embodied uniquely in Old Glory.
Thank you, sir.
[The prepared statement of Mr. Brady follows:]
Prepared Statement of Maj. Gen. Patrick Brady
My name is Pat Brady. I am the Chairman of the Board of the
Citizens Flag Alliance. We are a coalition of some 140 organizations
representing every element of our culture, some 20 million souls. We
are non-partisan and have one mission and one mission only: to return
to the people the right of the people to protect their flag, a right we
enjoyed since our birth, a right taken away from us by the Supreme
Court. We, the people, 80 percent of us, including the 49 states who
have petitioned Congress and 70 percent of that Congress, want that
right back.
But our concerns are not sentimental, they are not about the
soiling of a colored fabric, they are about the soiling of the fiber of
America. We share with the majority a sincere anxiety that our most
serious problems are morally based, and that morality, values and
patriotism, which are inseparable, are eroding. This erosion has
serious practical consequences. We see it in sexual license, crimes
against our neighbors, our land, in our failure to vote, our reluctance
to serve and in the level of disrespect we have for our elected
officials.
And we see a most visible sign in the decline of patriotism in the
legalized desecration of the symbol of patriotism, our flag. Because it
is the single symbol of our values, our hope for unity and our respect
for each other, the legalized desecration of Old Glory is a major
domino in the devaluing of America.
If we ignore the fact that the Supreme Court mistook the founders
meaning on the first amendment, we would do well to consider the
importance of the flag to the young Americans, and their families, who
today face the tragedy of combat and the horrors of captivity.
How many flags will be burned by some in this country if their
lives are interrupted and they are ordered into combat in a foreign
country? And what would those burnings do to the families mourning the
capture or death of loved ones--and what would it do to our unity?
The tragedy for the families of those serving their country would
be that the actions of the cowards, and others, who burned the flag
would be perfectly legal. How insane. At least those of us who served
in Vietnam, and watched our flag burned, knew that the flag we served
under was worth protecting.
The first action of our adversaries in Serbia was to burn the
American flag. The first action of the families of our GIs captured in
Serbia was to fly the American flag. What other symbol could better
express the sentiments of both sides--and the profound differences?
The first action of the pilot of the downed F-117 in Serbia was to
reach for the folded American flag in his flight suit. He was
surrounded by the enemy. His life was in serious danger. Why the flag?
He said the flag inspired in him hope, strength and endurance--the
three elements essential to survival in combat.
The importance of the flag in combat is highlighted by the fact
that more Medals of Honor have been awarded for flag related heroism
than any other action.
The most inspirational symbol on any battlefield is the American
flag. Behind me is George Wahlen of Utah who saw that flag raised on
Iwo Jima, just before he was inspired to save countless lives while
being wounded three times and to earn the Medal of Honor.
Leo Thorsness found hope, strength and endurance in the daily
pledge to a tattered flag made from scraps by fellow POW Mike
Christian. The communists found the flag and brutally tortured Mike for
making it. They were determined that there would be no hope, strength
or endurance in the Hanoi Hilton. It didn't work. Mike made another
flag.
In the movie Saving Private Ryan, his simple, haunting, burning
question was whether or not he was worth the suffering of Captain
Miller and those who saved his life. Those opposed to the flag
amendment tell us that it is the freedom to burn the flag, that makes
us worthy of their sacrifices. I wonder how many would use that line to
inspire our youth to mobilize today?
If Pvt. Ryan's saviors heard that they died on America's
battlefields so that their flag could be burned on America's street
corners, they would turn over in their graves. And those who serve
today, and their families, feel the same.
Pvt. Ryan's saviors understood how precious free speech is, they
died for it. And those who serve in Kosovo today may die for it as
well. What they would not understand is that defecating on the flag is
speech.
And they understand how precious the Constitution is. The beauty of
the flag protection amendment is that it does not change the
Constitution, it restores it. It takes the power over the flag back
from the courts, who have declared that defecating on the flag is
speech, and returns that power to the people who can then protect it if
they wish.
The Constitution gives us the right to peacefully protest an action
of our country. That is what we are doing. It does not give us the
right to violently protest the foundations of our country. That is what
the flag burners are doing.
This is a values issue and the entire debate over values is
centered on what we teach our children. Flag burning is wrong, but what
it teaches, is worse. It teaches our children disrespect. It teaches
that the outrageous acts of a minority are more important than the will
of the majority. It teaches that our laws need not reflect our values.
And it teaches that the courts, not the people, or the Congress, own
the Constitution.
Captain Miller's dying words to Pvt. Ryan were, ``Earn this.''
Their flag wasn't earned to be burned. Nor was the flag tucked in the
flight suit of a downed American pilot.
For over a year now we have been hearing from many in Congress that
we should listen to the people. That is our plea as well, let the
people decide.
We've had enough of the issues that tear us apart. It is time for
something that unites us. The flag amendment will do that. It will
signal a Congress dedicated to unity, a Congress that listens to the
will of the people?
It is time to stop wagging the dog and start waving the flag. It is
time to save Pvt. Ryan's flag, and recapture Mike Christian's flag, to
restore the flag of the families of our POWs and all the flags in the
flight suits and nap sacks of young people who are inspired by the
hope, strength and endurance embodied in Old Glory.
The Chairman. Thank you, General Brady. You and I have been
working on this amendment for years before many were familiar
or became familiar with Kosovo. And I know that you agree with
me that one can take a principled position on both sides of the
flag amendment debate without indicating any lack of support
for our brave troops in the field of Kosovo.
Mr. Brady. Yes, sir, absolutely. An interesting note. Mr.
May and I in our conversations here, it may be that I picked
him up in Vietnam, or certainly some member of my unit. And so
there would have been 5 people on that helicopter and 1 who
didn't agree and 4 who did agree with this. But certainly all
five of them would have been patriots.
The Chairman. Thank you.
Professor May, we will turn to you.
STATEMENT OF GARY E. MAY
Mr. May. Thank you. Good morning. I bring you greetings and
best wishes from President H. Ray Hoops, the faculty, staff,
and students of the University of Southern Indiana. I am
extremely flattered and humbled by your invitation and interest
in listening to my thoughts about the proposed amendment to the
Constitution. I gladly accepted the invitation as yet another
opportunity for me to be of service to my country. The views
expressed are my own, and I would just add that I am in awe of
the gentlemen who surround us, the Medal of Honor winners, and
I am very flattered and humbled to be in their presence this
morning. And I appreciate that opportunity.
As a Vietnam veteran who lives daily with the consequences
of my service to my country, and as the son of a World War II
combat veteran, and the grandson of a World War I combat
veteran, I can attest to the fact that not all veterans,
indeed, perhaps most veterans, do not wish to exchange fought-
for freedoms for protecting a tangible symbol of these
freedoms. I oppose this amendment because it does not support
the freedom of expression and the right to dissent.
I joined the U.S. Marine Corps while still in high school
in 1967. This was a time of broadening public dissent and
demonstration against our involvement in Vietnam. I joined the
Marines, these protests notwithstanding, because I felt that it
was my duty to do so. I felt duty-bound to answer President
Kennedy's challenge to ``Ask not what your country can do for
you; ask what you can do for your country.'' My country was
asking me to serve in Vietnam, ostensibly because people there
were being arbitrarily denied the freedoms we enjoy as
Americans.
During my service with AK Company, 3d Battalion, 27 Marines
following the Tet offensive in 1968 in Vietnam, I sustained
bilateral above-the-knee amputations as a result of a land mind
explosion on April 12, 1968. My military awards include the
Bronze Star with combat ``V,'' Purple Heart with star, Vietnam
Campaign, Vietnam Service, and National Defense medals.
Now, 31 years, 1 week, and 1 day following the loss of my
legs in combat, I am again called upon to defend the freedoms
which my sacrifices in combat were said to preserve. It has
been a long 31-plus years. I have faced the vexing challenge of
reconciling myself with the reality of my military history and
the lessons I learned from it and the popular portrayal of
veterans as one-dimensional patriots whose patriotism must take
the form of intolerance, narrow-mindedness, euphemisms, and
reductionism--where death in combat is referred to as ``making
the ultimate sacrifice'' and the motivation for service and the
definition of true patriotism is reduced to dedication to a
piece of cloth.
Recently, I had a conversation with a colleague at the
university. I mentioned the anniversary of my wounding to her
and asked her what she was doing 31 years ago. Somewhat
reluctantly, she said, ``I was protesting the war in Vietnam.''
I was not offended. After all, our Nation was born out of
political dissent. Preservation of the freedom of dissent, even
if it means using revered icons of this democracy, is what
helps me understand losing my legs.
The strength of our Nation is found in its diversity. This
strength was achieved through the exercise of our first
amendment right to freedom of expression--no matter how
repugnant or offensive the expression might be. Achieving that
strength has not been easy. It has been a struggle, a struggle
lived by some very important men in my life and me.
In addition to my own military combat experience, I have
been involved in veterans affairs as a clinical social worker,
program manager, board member, and advocate since 1974. I have
yet to hear a veteran I have lived or worked with say that his
or her sacrifice and service was in pursuit of protecting the
flag. When confronted with the horrific demands of combat, most
of us who are honest say that we fought to stay alive.
Combatants do not return home awestruck by the flag. Putting
the pretty face of protecting the flag on the unforgettable,
unspeakable abominations of combat seems to trivialize what my
fellow veterans and I experienced. This depiction is
particularly problematic in light of the current events in
Kosovo.
I am offended when I see the flag burned or treated
disrespectfully. As offensive and painful as this is, I still
believe that those dissenting voices need to be heard. This
country is unique and special because the minority, the
unpopular, the dissenters, and the downtrodden also have a
voice and are allowed to be heard in whatever way they choose
to express themselves that does not harm others. The freedom of
expression, even when it hurts, is the truest test of our
dedication to the belief that we have that right.
Freedom is what makes the United States of America strong
and great, and freedom, including the right to dissent, is what
has kept our democracy going for more than 200 years. And it is
freedom that will continue to keep it strong for my children
and the children of all people like my father, late father-in-
law, grandfather, brother, me, and others who, like us, served
honorably and proudly for freedom.
The pride and honor we feel is not in the flag per se. It
is in the principles that it stands for and the people who have
defended them. My pride and admiration is in our country, its
people, and its fundamental principles. I am grateful for the
many heroes of our country, and especially those in my family.
All the sacrifices of those who went before me would be for
naught if an administration were added to the Constitution that
cut back on our first amendment rights for the first time in
the history of our great Nation.
I love this country, its people, and what it stands for.
The last thing I want to give the future generations are fewer
rights than I was privileged to have. My family and I served
and fought for others to have such freedoms, and I am opposed
to any actions which would restrict my children and their
children from having the same freedoms I enjoy.
If we are truly serious about honoring the sacrifices of
our military veterans, our effort and attention would be better
spent in understanding the full impact of military service and
extending services to the survivors and their families. Our
record of service to veterans of all wars is not exemplary. In
May 1932, in the midst of the Great Depression, World War I
veterans had to march on this Capitol to obtain their promised
bonuses. World War II veterans were unknowingly exposed to
radiation during atomic testing. Korean veterans, perhaps more
than any living U.S. veterans, have been forgotten. Vietnam
veterans are still battling to obtain needed treatment for
their exposure to life-threatening herbicides and withheld
support upon their return. The list goes on.
The spotty record in veterans services is more shameful
when one considers that the impact of military service on one's
family has gone mostly unnoticed by policymakers.
Is our collective interest better served by amending the
Constitution to protect a piece of cloth than by helping
spouses understand and cope with the consequences of their
loved ones' horrible and still very real combat experiences?
Are we to turn our backs on the needs of children whose lives
have been affected by their parents' military service? The
Agent Orange Benefits Act of 1996 was a good start, but we
should not stop there. Is our obligation to protect the flag
greater, more righteous, more just, more moral, than our
obligation to help veterans and their families? I think not.
I respectfully submit that this assault on first amendment
freedoms in the name of protecting anything is incorrect and
unjust. This amendment would create a chilling environment for
political dissent. The powerful anger which is elicited at the
site of a flag burning is a measure of the love and reverence
most of us have for the flag.
This is among the freedoms for which I fought and gave part
of my body. This is part of the legacy I want to leave for my
children. This is among the freedoms my grandfather was
defending in World War I. It is among the freedoms my father
and late father-in-law defended during their combat service
during World War II.
Please listen to these perspectives of ordinary veterans
who know firsthand the implications of tyranny and denied
freedoms. Our service is not honored by this onerous
encroachment on constitutionally guaranteed freedoms.
Thank you for this opportunity.
The Chairman. Thank you, Professor.
Ms. Seely, we will turn to you.
STATEMENT OF MARIBETH SEELY
Ms. Seely. Thank you, Mr. Chairman, honorable committee
members, and the special military heroes present. I am so
honored to testify before this committee for preservation of
the American flag. My name is Maribeth Seely, and I am a fifth
grade teacher at the Sandystone-Walpack School in New Jersey.
Four of my students and their families have traveled here today
to be at this hearing.
All of my grandparents came to this country from Ireland.
They instilled in me a love for their newfound America and for
her flag. Growing up in Massachusetts, my parents, Girl
Scouting, and school securely molded my patriotic values.
In addition, I am proud to have had an opportunity to
participate directly in our democratic process through service
on Senator Kennedy's campaign in greater Lawrence, MA, in the
1970's. Interestingly enough, I do not come from a military
background, but have always had the deepest respect for those
who gave up their lives and for all who served in the armed
forces.
Now when I teach my class, U.S. history, we focus on the
same values of patriotism and good citizenship. We write to
veterans to show that we remember. My class has invited parents
and grandparents who served in the armed forces to participate
in Memorial Day observances. It is important to me to have the
faces of real heroes emblazoned on the flag and forever placed
in the memories of my students.
I believe that our young people today need to have a more
personal connection to our flag and to our great country. The
glue that has kept us together for over 200 years has been
eroded over time and continues to weaken us. For example, many
nationalities have their own parades. I feel comfortable with
this example because as an Irish American, St. Patrick's Day
parades are a must. Thousands turn out. But what about our
Memorial Day parades? Many are sparsely attended.
Yet another example of diminished patriotism is reflected
in voting. We all know few Americans actually vote. My
daughter-in-law is from Ecuador and can't wait to become a
citizen so she can vote. She studies current events as well as
U.S. history. Do our young people feel connected enough to our
country to study these issues and vote?
In America, there are many different opinions, customs, and
lifestyles. We celebrate our differences as part of a great
melting pot. But I worry that there will not be the glue to
keep us together, to unify us. The American flag can be part of
that glue, the strength, the reminder of who we are. What
legacy are we leaving to future generations if we will have
nothing in common with each other, nothing to bind us together?
I asked my fifth grade class for their feelings.
Julie Brehm, age 11, feels so lucky to live in the U.S.A.
She writes,
I could have stayed in South America where I probably
would have died because I was a very sick baby. I
remember the time in my birth country when things
seemed unsafe and full of worry. I was adopted from
Colombia. The American flag means freedom to some, but
to me it means life. The soldiers that fought for
America made sure that I had a great country to come
to. Now when I remember the scenes in South America, I
look at that American flag and say, ``Thank you.''
Scott Clark, 11:
Our flag is a symbol of freedom, loyalty, and
independence. We should treat our flag with respect. We
should not step on it, put mud on it, or do anything
bad to it. The American flag should be in our hearts.
Molly Green, age 10:
The American flag is the greatest symbol I have ever
known. People should look deeper into their hearts.
They should find true dignity and respect for those who
fought for them.
Nick Hirshberger, 11:
The American flag is a symbol of our country that was
reunited after the Civil War. We are a union that
hasn't been split since.
Katie Satter, 10:
I pledge allegiance to the flag. These are the first
six words you say pretty much every morning. Do you
ever think of what those words mean? They meant
everything to people who fought for our country? They
meant so much, some died over it.
Lucas Pifano, 11:
The American flag means opportunity and freedom. I
think of the people who are serving right now in
Kosovo. I think of my parents who came here from
Brazil. Life is better here. When they came here their
lives changed.
Austin Dolan, 11:
When we think of the American flag, we see battles,
wars, and soldiers, but do we see other faces inside of
the flag? These people are the volunteers who strived
to make America better. Do we see the faces of the
people who wrote the Constitution? Do we see the faces
of the workers who have changed America from an empty
land to a blooming flower? Do we see the farmers who
tilled the soil, Congress who protected it, the
volunteers who loved it, and the veterans who kept it
free?
Austin finally asked,
Why do schools teach respect for the flag if there is
no law to protect it?
That last question surely caused me to think. Austin is
only 11, but he asks a very important question. Why do teachers
instruct students to take off their hats and stand when the
American flag passes in front of them when our own Government
has not seen fit to pass a flag amendment? If this flag
amendment is not passed, how am I going to answer the question,
``Why?'' Why, Mrs. Seely, did our Congress not consider the
flag to be a national symbol worthy of protection? We have laws
against acts of hatred. But what about hatred for our country
and our flag? Shouldn't it be wrong to desecrate our flag? Kids
think so and so does the average American.
In conclusion, I feel that we now have an opportunity in
this wonderful country to encourage cohesiveness. Protect the
American flag and the spirit of America for which so many
people have died. Think about this. If for one moment in time
all dead servicemen could vote, wouldn't they all be here to
vote for that flag amendment? They made us proud. Will we make
them proud? Keep young and old together under one flag.
Thank you very much.
The Chairman. Thank you, Ms. Seely.
Reverend Wilson, we will take your testimony.
STATEMENT OF NATHAN D. WILSON
Reverend Wilson. My name is Nathan Wilson. I am an ordained
minister in the Christian Church (Disciples of Christ). Along
with serving as an adjunct faculty member at West Virginia
State College, I presently work as the executive director of
the West Virginia Council of Churches, an organization that
consists of Orthodox, Roman Catholic, and various Protestant
member bodies, which number about one-third of the population
of Virginia. So our organization is quite large and also
represents quite a diversity of opinions along ideological
perspectives, both religious and political.
I should state up front that I approach this testimony with
some degree of turmoil. I, too, have deep respect for the flag
as a treasured symbol of the democratic values on which our
Nation was founded and that continue to remain the foundation
of our Nation. Largely because of this respect, I am appalled
when I see the actions of a few toward our flag. And yet, as an
American citizen and a person of faith, I am more offended by
the proposed flag desecration amendment. So while I resonate
with the issue, I oppose strongly the proposed response.
For religious folk--and I understand that includes a number
of people in this room--the terms ``consecration'' and, its
opposite, ``desecration'' are very important. You cannot
desecrate something unless it has first been consecrated. When
you consecrate something, you recognize it as sacred. Religious
communities consecrate women and men to serve as rabbis,
ministers, and other religious teachers. We consecrate the
teaching and preaching of Holy Scripture and understand that
that Scripture has the power to change lives. In the Christian
faith, we consecrate the bread and wine and consider that
representative of or, in some traditions, actual embodiments of
the body and blood of Our Savior.
Consecration is, in fact, the raison d'etre, the reason for
existence for the church. The church is carried on by the
ordained consecrated ministry. ``Consecrated'' is a big word.
Just to be able to desecrate the flag means that it has first
been consecrated, not as a treasured symbol of democratic
values, as I have already named, but as a sacred symbol. At
that point, when that happens, Government has determined for us
what is sacred.
I agree with Senator Ashcroft that many people revere the
flag, but they do so from their own individual decisions. It is
not made sacred for them.
There are two major problems when Government determines for
its people what is sacred. First, to give to the flag sacred
status is, in fact, to give that to which the flag points,
namely, the United States of America, divine status. It is
unavoidable. This is government-mandated idolatry for people of
faith.
Mr. Chairman, I promise not to preach, but if I may, citing
from Exodus, Chapter 32, the familiar story of Moses and the
golden calf. As Moses was on Mt. Sinai receiving the Ten
Commandments from God, the people asked Aaron, the high priest,
to create a new god for them. When Moses descended Mt. Sinai,
the people were worshipping this false god, symbolized by a
golden calf. The Israelites likely had great reverence for
their new god and strong emotional feelings toward the symbol
of that god, this golden calf. Yet Moses' very first reaction
toward this nondivine symbol as sacred was to burn it, and burn
it now, he said.
Second, this proposal damages both first amendment religion
clauses that have served our country so well. Now, I admit not
to be a constitutional scholar, so this is a lay person's
perspective. Prohibiting the desecration of the flag is a
disturbing usurpation by government of a responsibility
reserved in the Bill of Rights to be freely exercised only by
religion. Religious traditions uniquely teach what is sacred,
and no government should arrogate to itself the right to
declare the holy. Government, said another way, should not take
away from each religion the opportunity and the responsibility
of determining for itself what is sacred. And when government
does, it has partially established religion for its people. You
see, both religion clauses are damaged.
On a more personal note, the flag, as I have said, is a
treasured symbol of the greatest experiment history has known,
an experiment in liberty, which is, to quote Roger Williams, a
famous Baptist, founder of Rhode Island, ``a lively experiment
in liberty.'' It is being a part of this experiment that makes
this risky business. It makes it a challenge then for us to
stay at the table with those with whom we disagree and who
disagree with us. Perhaps Roosevelt did say it best when he
said, ``All we have to fear is fear itself.'' My concern is
that this proposed amendment is simply a knee-jerk reaction to
that fear.
Instead, the way for us to reaffirm the greatness of this
country is not to repress, instead appeal to even greater
freedom, because we are the country that has risked the
experiment in liberty. And the proposed flag desecration
amendment may create for us a new golden calf, this time a calf
of cloth, thread, and ink.
Thank you.
[The prepared statement of Reverend Wilson follows:]
Prepared Statement of Nathan D. Wilson
Mr. Chairman and members of the Senate Judiciary Committee, thank
you for inviting me to testify on the proposed constitutional
amendment: Senate joint resolution 14. It is an honor to appear before
this Committee.
My name is Nathan Wilson. I am an ordained minister with standing
in the Christian Church (Disciples of Christ). Presently I serve as the
executive director of the West Virginia Council of Churches, an
ecumenical organization with Orthodox, Roman Catholic, and Protestant
Christian member communions. More than one-third of the population of
West Virginia, roughly 600,000 people, belong to a church that is a
member of the West Virginia Council of Churches.
Some of the reasons I oppose Senate joint resolution 14 are
outlined below.
1. proposal misuses religious terms
Desecration is a term with significant religious connotations.
Desecration of an object is possible only if the object is recognized
as sacred.
What does it mean to ``desecrate'' an object? The word comes from
the Latin ``desecrare'', where ``de-'' is a prefix meaning ``depriving
[something] of the thing or character therein expressed;'' and
``secrare'' is the predecessor of the English work ``sacred.'' In fact,
desecrate is the opposite of consecrate, ``to set apart as sacred to
the deity.'' \1\
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\1\ Webster's Dictionary, 3rd college edition.
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To ``desecrate'' an object is to remove the property of sacredness
from it.
What sort of an object can be desecrated? An object must be
consecrated as sacred before it can be desecrated. A sacred object,
again defined by Webster's, is an object, ``dedicated or set apart for
the service or worship of a deity.''
In most Christian traditions, the eucharistic elements are
consecrated as sacred. The ministry of teaching and preaching the
gospel is sometimes consecrated.
The flag is a treasured symbol of democracy, liberty, and equality
of the United States of America, but the flag is not sacred.
2. proposal mandates idolatry
When the government forces me to understand something not
associated with the divine to be holy, the government has mandated
religious idolatry for me.
Following directly from the meaning of the word desecrate, the
proposed amendment could read as follows:
``The U.S. flag is dedicated to the worship of a deity. The
Congress shall have power to prohibit the physical desecration of the
flag of the United States.''
People of faith are presented with a dilemma. The proposed
amendment declares that the U.S. flag is dedicated to the worship of a
deity. What is the U.S. flag a symbol of? Or, more specifically, what
deity does the U.S. flag represent?
The United States flag is a treasured symbol of democracy, liberty,
and equality, and represents the nation of the United States of
America. If the United States flag represents a deity, the only deity
that it can possibly represent is the United States itself, and the
final rewriting of our preamble to the amendment must read akin to:
``The United States of America is god. The United States flag is a
sacred, consecrated symbol of that god and is dedicated to the worship
of the United States. The Congress shall have power to prohibit the
physical desecration of the flag of the United States.''
Statements such as those above are, of course, religiously
idolatrous.
3. proposal damages religion clauses
The proposed amendment would partially repeal the establishment
clause of the First Amendment because the flag, as detailed above,
would necessarily be a sacred object. Thus, the government, not any
religion, would decide what is sacred.
The free exercise clause is likewise damaged because my religion is
not allowed to teach me what is sacred; rather, the sacredness of at
least one object is prescribed to my religion, and thus to me. The
unique opportunity and responsibility of religion to teach what is
sacred is undermined by the government.
4. proposed amendment jeopardizes religious freedom and freedom of
speech
Whenever freedom of speech is limited, religious freedom is
likewise endangered. Recall, of course, the interrelationship of these
two precious liberties dating to the 1860s, enabling both women and
African-Americans to be included in the core understanding of the First
Amendment. The exclusion of both women and African-Americans from
formal political rights, like voting and holding public office,
highlighted the importance of their involvement in other organizations,
like churches and mission organizations, in order to strengthen their
voice.
In a case I first studied many years ago, West Virginia Board of
Education v. Barnette in 1943, the U.S. Supreme Court wrote, ``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.''
Please do not nullify the heart of this decree by making the flag a
sacred icon.
5. scriptural problems with the proposal \2\
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\2\ Much of the following scriptural study was developed by the
Reverend Bruce Hahne and is used with his permission.
---------------------------------------------------------------------------
The proposed ``flag desecration'' amendment contradicts God's
prophetic call throughout history documented in scripture, to speak and
take action against all injustice. Scripture teaches its audience that
the prophets repeatedly spoke and acted through the use of symbols: the
creation, interaction, and occasional physical destruction of symbols.
Theologian William Barclay writes:
``Again and again in the religious history of Israel, when a
prophet felt that words were of no avail against a barrier of
indifference or incomprehension, he put his message into a dramatic ACT
which men could not fail to see and to understand.'' \3\
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\3\ William Barclay, The Gospel of Matthew, vol. 2, The Westminster
Press, Philadelphia, PA, 1958, p. 264.
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Four scriptural passages will be cited.
Exodus 32:1-20--Moses and the golden calf
This first passage is well known, as is its context. For a brief
time during the 40-year period the Israelites spent in the wilderness,
Moses ascended Mt. Sinai and received the ten commandments from God.
While Moses was on the mountain, the people asked Moses' brother Aaron,
the high priest, to create new gods for them:
When the people saw that Moses delayed to come down from the
mountain, the people gathered around Aaron, and said to him,
``Come, make gods for us, who shall go before us; as for this
Moses, the man who brought us up out of the land of Egypt, we
do not know what has become of him.'' * * * So all the people
took off the gold rings from their ears, and brought them to
Aaron. He took the gold from them, formed it in a mold, and
cast an image of a calf; and they said, ``These are your gods,
O Israel, who brought you up out of the land of Egypt!'' * * *
The Lord said to Moses, ``Go down at once! Your people, whom
you brought up out the land of Egypt, have acted perversely;
they have been quick to turn aside from the way that I
commanded them; they have cast for themselves an image of calf,
and have worshiped it and sacrificed to it, and said, 'These
are your gods, O Israel, who brought you up out of the land of
Egypt!'' * * * As soon as he came near the camp and saw the
calf and the dancing, Moses' anger burned hot, and he threw the
tablets from his hands and broke them at the foot of the
mountain. He took the calf that they had made, burned it with
fire, ground it to powder, scattered it on the water, and made
the Israelites drink it.4
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\4\ Scripture citations are from the New Revised Standard Version
of the Bible.
---------------------------------------------------------------------------
The people were worshipping a false god, symbolized by the calf.
The Israelites likely had great reverence for their new god and strong
emotional feelings towards the symbol of the calf. Yet what is Moses'
very first action towards the symbol? Burn it. As people of faith who
all believe in some form of holy inspiration of the scriptures, what
are Christians to conclude about our response to non-divine symbols
claimed as sacred?
I Kings 11:29-32--Ahija's robe
Some 250 years after the idolatry of the golden calf described in
Exodus, the Israelites had established a monarchy in Israel, where
Solomon reigned as their third king. Solomon was the last king to reign
over all of the twelve tribes of Israel. In 922 BCE, the single kingdom
split into the separate kingdoms of Israel and Judah. Prior to this
historic schism, Solomon's slavemaster Jeroboam, who was to become the
first king of the northern kingdom of Israel, received both an oracle
and a warning of what was to come from the prophet Ahija:
About that time, when Jeroboam was leaving Jerusalem, the
prophet Ahijah the Shilonite found him on the road. Ahijah had
clothed himself with a new garment. The two of them were alone
in the open country when Ahijah laid hold of the new garment he
was wearing and tore it into twelve pieces. He then said to
Jeroboam: Take for yourself ten pieces; for thus says the Lord,
the God of Israel, ``See, I am about to tear the kingdom from
the hand of Solomon, and will give you ten tribes * * *. If you
will listen to all that I command you, walk in my ways, and do
what is right in my sight by keeping my statutes and my
commandments, as David my servant did, I will be with you, and
will build you an enduring house, as I built for David, and I
will give Israel to you.''
In this passage, the prophet's robe is a symbol of the united
nation of Israel, and Ahijah used the destruction of the symbol to
communicate the upcoming fragmentation of the nation.
Jeremiah 19:1-10--Smashing the clay pot
We now shift another 300 years into the future to the period just
prior to the exile of the Israelite people to Babylon. The northern
kingdom of Israel had disappeared from human history prior to 700 BCE,
and the remaining southern kingdom of Judah was coming under military
pressure from the northern nation of Babylon. The prophet Jeremiah, who
began his teachings in 626 BCE and continued through to the fall of
Jerusalem to the Babylonians in 587 BCE, took a series of prophetic
actions to warn the people of Judah of what would (and eventually did)
take place if they failed to serve the Lord. One of these actions was
to destroy a pot as a symbol of the pending destruction of Jerusalem
and the people of Israel:
Thus said the Lord: Go and buy a potter's earthen ware jug.
Take with you some of the elders of the people and some of the
senior priests, and go out to the valley of the son of Hinnom
at the entry of the Potsherd Gate, and proclaim there the words
that I tell you. You shall say: Hear the word of the Lord, O
kings of Judah and inhabitants of Jerusalem. Thus says the Lord
of hosts, the God of Israel: I am going to bring such disaster
upon this place that the ears of everyone who hears it will
tingle. * * * I will make this city a horror, a thing to be
hissed at; everyone who passes by it will be horrified and will
hiss because of all its disasters. * * * Then you shall break
the jug in the sight of those who go with you, and shall say to
them: Thus says the Lord of hosts: So will I break this people
and this city, as one breaks a potter's vessel, so that it can
never be mended.
Because Jerusalem was the sacred city of the Israelites,
destruction of any symbol representing the holy city was a great
offense. Yet not only did God order Jeremiah to destroy the pot,
representing the city, God also ordered him to do so in the presence of
the secular and religious leaders of the Israelite nation. Jeremiah
suffered for his prophetic actions, and in chapter 20 we can read that
he was immediately thrown in the public stocks for daring to destroy a
symbol of something regarded as sacred. Again the scriptures tell us
that at times, God calls people of faith to physically destroy symbols,
even if authority tells us that those symbols are sacred, and even if
we must suffer humiliation or imprisonment for our actions.
John 2:13-16--Christ cleanses the temple
Our New Testament passage is Christ's well-known cleansing of the
Jerusalem temple, recorded in all four gospels. The High Priest had
established a profitable business of selling animals for sacrifice, and
exchanging foreign currency for Jewish, on which the temple tax had to
be paid. With a guaranteed market and monopoly on competition, the High
Priest and colleagues benefited significantly.
Despite the facts that Jerusalem was the holy city of the Jewish
people and the temple was the holiest, most sacred location within the
holy city, Christ chose to charge the money changers, who were the
agents of the priests and therefore a symbol both of the temple system
and of Jerusalem's religious authorities:
The Passover of the Jews was near, and Jesus went up to
Jerusalem. In the temple he found people selling cattle, sheep,
and doves, and the money changers seated at their tables.
Making a whip of cords, he drove all of them out of the temple,
both the sheep and the cattle. He also poured out the coins of
the money changers and overturned their tables. He told those
who were selling the doves, ``Take these things out of here!
Stop making my Father's house a marketplace!''
William Barclay writes that ``if [Christ's Palm Sunday] entry into
Jerusalem had been defiance, here is defiance added to defiance.'' To
attack the merchants of the temple was to attack the sacred temple
itself. Once again, scripture suggests that even the most revered
symbols cannot and must not be sheltered from the prophetic criticism
which often takes the form of physical action.
Our five scriptural references lead us to conclude that there are
times when God may call us, even order us, to physically attack symbols
as a means of expressing our witness to God. We cannot exclude the U.S.
flag from the list of possible symbols. On the contrary, the scriptures
suggest that it is precisely those symbols which are most revered which
are most often subject to the prophet's attack. To attempt to ban such
prophetic speech strikes at the heart of the Christian faith. The
proposed ``flag desecration amendment'' may create for us a new golden
calf--a calf of cloth, thread, and ink.
Personal note
I will conclude my written testimony on a more personal note.
Like many Americans, I am concerned about division, even
disharmony, among citizens. I value unity, and believe it to be
valuable for our nation.
I presume this concern is driving some to promote the flag
desecration amendment, Senate joint resolution 14. Unfortunately, this
amendment will not help unite Americans; rather, it will further divide
us by harming the single most uniting aspect of our citizenship:
freedom.
It is exactly the freedom we Americans enjoy and for which we are
responsible that unites us. Freedoms of press, of speech, of religious
expression and peaceful assembly are what unite Americans.
These freedoms are not always easy, either to express or accept.
These freedoms sometimes revile, sometimes alarm, sometimes even
disgust; and yet, these freedoms sometimes enlighten, sometimes
educate, and sometimes these precious freedoms even liberate us.
The proposed amendment weakens and diminishes our freedoms and, in
turn, weakens and diminishes our country. Please oppose it.
The Chairman. Thank you, Reverend.
General Baca.
STATEMENT OF EDWARD D. BACA
Mr. Baca. Thank you, Mr. Chairman, members of the
committee. Thank you for the opportunity to appear before you
today to tell you the story about a close personal friend and a
veteran who served during World War II. I feel that by sharing
his experience with you today it will serve to emphasize what
the flag means to most Americans, especially those veterans who
have fought and died to protect it and the freedom that it
represents.
Let me tell you about Jose Quintero. He was born in Corpus
Christi, TX, and moved to Albuquerque, NM, where he currently
resides, in my home State. And he, like many other New Mexicans
from the 200th and the 515th Coast Artillery Regiments of the
New Mexico National Guard, was among those who defended Bataan
and Corregidor during World War II.
As most of you know, they were attacked on December 8,
1941, by a far superior force of the 14th Japanese army. They
courageously defended themselves as they slowly withdrew from
the enemy advance towards Corregidor and Bataan. Promised
reinforcements and supplies, which they never received, they
nevertheless held the Japanese at bay for five long months,
completely upsetting the Japanese timetable of conquest.
Although they were defeated by disease, hunger, and lack of
ammunition in May 1942, they had bought precious time for the
United States to regroup for an offensive war to reconquer the
Pacific.
Perhaps you already know this little history lesson.
However, I would like you to take a moment to truly imagine the
fear, the exhaustion, the jungle heat, the hopelessness of
their situation. My friend Jose experienced this hardship and
the sacrifice. And he did so with one thought in mind: to do
his duty, to serve with honor, to fight for the country that he
loved. Far from some musty old war story, this was his reality,
and it remains so today for Jose and his comrades.
You see, loyalty and patriotism are especially strong
traits among these veterans. They fought with unequal courage
in the face of a superior force. With courageous hearts, they
started down adversity and defended our Nation. Indeed, their
bravery and their self-sacrifice in the face of such
overwhelming odds are deserving of our eternal admiration.
Jose Quintero was courageous during the battle for the
Philippines. He proudly did his best and honored the fighting
tradition of his unit. But it was in the camps, Mr. Chairman,
that he went beyond courage.
Jose so loved his country that he looked for a way to
express that love. He wanted to honor his friends and to make a
symbol for himself to prove that he had not been broken in
spirit, and that although they had captured him physically,
that mentally he was still not their prisoner. And, most of
all, he wanted to honor all of those heroes whom he calls ``the
real heroes of the war,'' those prisoners that were dying all
around him. So he began a project which would have meant
instant death for him had he been caught.
He began to scrounge materials in the form of a red
blanket, with the help of his fellow prisoners, and a white bed
sheet that he stole from his Japanese captors. The blue
background came from Filipino dungarees. He began to fashion
these into an American flag, aided by a Canadian soldier, a
double amputee who worked in the tailor shop in that prison
camp.
At the time, Jose didn't even know how many stars were on
the flag. He knew how many stripes, but didn't know what they
represented. He actually had to ask an officer in the camp the
significance of the flag and what it represented before he
embarked on this project of making it.
By the way, the staff for the flag came from a prodding
stick that the Japanese guards used to discipline the
prisoners, to beat them with. It took him a whole year to make
this flag, and he kept this flag wrapped in a piece of canvas
under his bunk. And he took it out at night, and he worked on
it diligently with the help of his Canadian amputee.
About 3 or 4 weeks before the end of the war, they heard a
rumble of aircraft, and they knew that it wasn't the Japanese
bombers because they hadn't heard aircraft in several months.
So they knew it had to be American bombers coming to bomb their
prison camp. So Jose Quintero took this flag that I am holding
in my hand today that he made in that prison camp, he took this
flag and went out into the open compound and waved it at the
bombers. The lead bomber saw Jose, tipped his wing, and led the
other bombers on from the prison camp.
Ladies and gentlemen, he literally saved the lives of all
of his fellow prisoners while risking his own.
Jose Quintero is what peace and freedom are all about. He
and those gentlemen that are sitting here today are what make
me so proud to be an American. They are what have made this
country great.
I am only sorry that Mr. Quintero himself could not be here
today to tell you his story and to tell you how he and his
buddies in the prison camp and all of those around him feel
about this American flag. But I do bring a message to you from
him. He said, Mr. Chairman, to ask you and the members of the
committee to please not let anyone dishonor the American flag.
Thank you, sir.
The Chairman. Thank you, General. That is a wonderful
story. We appreciate you being here, and we appreciate you
bringing this wonderful flag with you.
I am going to turn to Senator Smith who would like to make
a few comments, and then we will begin questioning after
Senator Smith.
Senator Smith. Thank you very much, Mr. Chairman, for your
courtesy.
Senator Leahy. Mr. Chairman, before he starts, just because
we did not know on this side of the aisle that you were going
to have other statements--of course, I don't object at all, but
because of that those who would have, I would ask unanimous
consent that members be allowed to put statements in the
record.
The Chairman. Without objection, we will hold the record
open until 5 o'clock today for any statements from any member
of this committee, and we will put them all in.
STATEMENT OF HON. BOB SMITH, A U.S. SENATOR FROM THE STATE OF
NEW HAMPSHIRE
Senator Smith. Thank you, Mr. Chairman. Let me just say I
am an original cosponsor of the flag amendment, and proud of
it, and I commend you for not only holding the hearing but your
perseverance in trying to see this amendment passed here in the
Congress.
Let me also say what a distinguished panel of witnesses. As
we all do here, Senators sit hour after hour, day after day,
week after week, month after month in hearings, and on both
sides of the issue, what a powerful, powerful panel, one of the
best that I have ever had the privilege to sit before. So I am
pleased and honored to be here to hear you.
Let me just say this: We need to dispel one myth here. This
is not about a test of who is a patriot and who is not. And,
Mr. May, your testimony was very powerful, and your sacrifice
even more so. And I think it is important to point that out,
that honest people do differ and it is not about patriotism. It
is not about who made the most sacrifice or who feels in one
way or another about the sacrifice that is made.
But let me tell you what I think it is about. It is about
whether or not the American people have a right to be heard and
to differ with five black robes, as I think you said,
Professor. And I think that is what this is all about. There is
a certain amount of arrogance in this debate that I have heard
which troubles me deeply, that somehow the American people
don't have the intelligence, perhaps, or the common sense to be
right, but Senators or Congressmen or others who oppose this
are right and the judges are right, Justices are right, but the
American people are wrong.
That does bother me, and I have heard some of that, not
necessarily here this morning, but I have heard it in the
debate, and I want to clear that up once and for all.
Like so many, probably most of the people in this room, I
have one of those flags in my home that belonged to my dad, who
died at the end of the Second World War. My mother cherished
it. She is a widow, never remarried, raised two sons, myself
and my brother, both of whom proudly served in Vietnam as well.
And so, you know, although I may differ respectfully with those
who say it is OK to burn it because it is a piece of canvas,
let me issue this challenge: If it is only a piece of canvas
and it has symbolism and doesn't mean anything, perhaps this is
a poor comparison, but let me issue a challenge. Here is a $5
bill. This is a piece of paper. If it is only a piece of paper,
to all of those out there in America who think it is only a
piece of paper, you bring them to me. I will accept them all,
and I will give you an equal number of these pieces of paper
for every one that you give me. And I won't keep the money. I
will give it to war orphans or veterans' children who need a
college education.
The bottom line is, Mr. Chairman, this $5 bill is only a
piece of paper, but it is more than a piece of paper. We know
it, and it is the same reason why that flag is more than a
piece of canvas. And we all know it.
I get very frustrated, Mr. Chairman, with those who say
that free speech can never be or has never been limited. Of
course it has been limited. It is limited all the time. A good
example is the bald eagle, which is also a symbol of freedom
and a symbol of America, is protected in this country. It is
protected. You shoot a bald eagle, and you will pay a price for
it. So why not protect the flag, another symbol, Mr. Chairman?
Second--and this has been upheld in the courts--we have had
statutes prohibiting the burning of draft cards, if you will
recall. Simply another little piece of paper, isn't it? But it
has significantly more meaning, and 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 since the law prohibited the
conduct regardless of the message sought to be conveyed by the
destruction of the draft card.
Let me point out one more, and I see my colleague, Mr.
Feingold, over there. I don't mean to single him out, but just
as an example of one who has fought so gallantly on campaign
finance reform. I disagree with Senator Feingold on that, but
that is a limit on free speech. If we can limit how much money
somebody can give to a candidate for political office, then we
can limit the desecration of the American flag, for goodness
sakes, in the name of the first amendment.
So let's get real with what we are talking about here. This
isn't about whether or not we can limit freedom under the first
amendment, free speech. It is about what free speech we want to
limit. And I say we ought to limit it when it comes to the
desecration of the symbol of the United States of America where
so many people have died. But let's not make this debate about
whether or not we can, because we are doing it all the time and
many others are proposing doing it in other ways.
Thank you very much, Mr. Chairman. I don't have any
questions of this distinguished panel because they have done a
great job.
The Chairman. Thank you, Senator. I thought that was an
eloquent statement. I have appreciated all the statements here
today. You all have acquitted yourselves very well, and you
have been very helpful to this committee.
Let me just go to you first, General Brady. It is very
humbling for this Senator to be in the presence of so many
Medal of Honor winners and recipients. We all very much
appreciate your contribution during the Vietnam War and
subsequently your work with the veterans organizations.
Now, we have polls that say that nearly 80 percent of all
Americans support this constitutional amendment. In your
experience, do you believe that 80 percent of all veterans
would support this amendment?
Mr. Brady. Yes, sir, very much so. The vast majority of the
veterans or the young people who serve today who I come in
contact with also support this amendment. But I would never say
that it is just a veterans issue. The group of Americans who
support it more than any other group, according to the polls,
as much as you can believe in the polls, are the women of
America. It is something like 85 percent of the women.
As I look at the Medal of Honor recipients, and having been
a president of that society, I would say that the number of
those folks who support it is much higher than 80 percent.
The Chairman. Well, that has been my impression from
talking to veterans.
General Baca, thank you very much for your story about Jose
Quintero, a very touching and moving story to me. Now, Mr.
Quintero is a true hero whom all of us must respect.
What is it that made Mr. Quintero risk his life for the
flag? Was it love for the so-called right to burn the flag? Or
was it something else?
Mr. Baca. Sir, I would say that, as I mentioned in my
presentation, Mr. Quintero wanted to pay tribute and he wanted
to find that symbol where he could best pay tribute to his
fellow prisoners, especially those that were dying. And he
chose the flag as the symbol because that was the symbol that
he cherished and he treasured that symbolized his own
patriotism, his own duty, his own honor. But more that that, it
symbolized what the country is all about. And even though he
didn't know the specifics about the flag, he truly understood
that it represented liberty, it represented justice, it
represented everything that was good in America. And that is
why he picked the flag as the symbol rather than the
Constitution or anything else as a symbol to pay tribute to
those fellow prisoners.
The Chairman. This is the actual flag that he had in the
concentration camp.
Mr. Baca. This is the actual flag.
The Chairman. He did a very good job.
Mr. Baca. Well, like I say, he had help from a fellow
prisoner who worked in the tailor shop. He did all the cutting
out of the stars and the stripes and all the rest of it, but
the other guy helped him stitch it. And they did a fabulous
job.
The Chairman. I would say.
Mr. Baca. I didn't mention, Mr. Chairman, that the tassels
and all were--the rope, of course, was from his tent that he
carried with him after his capture. But the other stuff came
from the parachutes, the tassels and all the fancy stuff, when
they dropped the food into them afterwards, and the supplies.
They were one of the first prison camps to get supplies dropped
into them because they knew Americans were there.
The Chairman. They knew about the flag. That is great.
Ms. Seely, your story about your children and their beliefs
in the flag, that story is truly inspiring. Do you think that
removing the Government sanction from flag burning will help
increase the respect for the country that your students are
taught in school?
Ms. Seely. Well, it reminds me of a question that one of my
students asked. Tim Hennessey, 11, wanted me to ask this panel:
Why would you allow desecration of the American flag? Why would
you make that stand? was his question.
I think when our Government sanctions the burning of the
flag, I think it sends the wrong message to our youth--that is,
the lack of respect. And as a long-standing teacher, I
certainly have seen the respect diminished over the course of
the last 30 years for many of the values that we have held very
dear to our hearts.
So, in answer to your question, absolutely I think the most
important thing is to return respect, and I think by protecting
the flag you are simply saying you respect the flag.
The Chairman. Reverend Wilson, I have a great deal of
respect for your faith and for your church, and I very much
appreciate your faith and the earnestness of your testimony
here today. In your written testimony, you stated that you
believe that we should not make the flag ``sacred,'' in quotes,
by passing this amendment. You stated that such an amendment
would make the flag similar to the golden calf idol that the
Israelites worshipped in Exodus 32. Exodus 32:19 talks about
what Moses did when he saw the Israelites dancing around the
golden calf. He said, ``And it came to pass, as soon as he came
nigh unto the camp, that he saw the calf, and the dancing: and
Moses' anger waxed hot, and he cast the tablets out of his
hands, and brake them beneath the mount.''
Didn't Moses' destruction of the Ten Commandments show that
he felt that the Israelites did not believe in the God of
Israel anymore? And, similarly, doesn't the Government sanction
of flag burning show that maybe some might not believe as much
in our country anymore, as Ms. Seely just indicated?
Reverend Wilson. No, sir, there is no support for the idea
that Moses' breaking of the Ten Commandments showed that he did
not believe the Israelites believed in their God; rather, it
was another emotional response along with his disgust for their
lack of faith and their quickness to find--to try and develop a
new god, and with that new god a nondivine symbol of it.
The Chairman. Well, let me just say this: If we follow your
logic through to conclusion, then what about our Constitution?
Almost all of us consider that to be sacred. This is a piece of
paper in the eyes of the rest of the world, but those of us who
defend it, those who have given their lives for it, or those
who have sacrificed for it, they consider it sacred, and it is
an object.
Reverend Wilson. Senator Hatch, with all due respect----
The Chairman. Wouldn't that apply to the Constitution as
well, that logic?
Reverend Wilson. Let's see. We have got about three
questions before me now.
In response to the first, with all due respect, most
Americans, particularly those of particular religious
persuasion, would want to more carefully define the word
``sacred,'' so that, yes, we hold the Constitution in high
regard, but certainly it is not sacred.
Second, part of my fear is that next year we might be
entertaining a desecration of the Constitution amendment, the
year after a desecration of a next treasured symbol amendment,
and the list might not stop here.
The Chairman. I think the point I am making is that most
people in this country believe the Constitution is sacred. In
fact, in my particular faith, I believe that it is inspired of
God. The Bible itself is just an object, but it is sacred. That
doesn't mean, because you call something sacred, that you
worship it as God. The children of Israel worshipped the golden
calf as though it was God. We don't worship the flag as God. We
don't worship the flag at all. We hold it sacred because of
what it means. So I just wanted to draw that distinction
because I think it is an important distinction.
Reverend Wilson. May I interject here that symbols always
point to a greater reality. That is the reason for having
symbols, of course, because they point to something larger than
themselves.
The golden calf pointed to a god that was created by the
Israelites in a very desperate time as a symbol. The flag
points to the United States and the liberty and equality and
freedom, greater realities, greater entities, the flag as its
symbol.
The Chairman. Well, many of us feel that symbol is sacred--
not God, but sacred. And I just wanted to make that distinction
because I think it is an important one.
Let me ask you this: As a Christian minister, do you
believe that America is a more religious Nation today than it
was in 1942 when there was no right to physically destroy the
flag? Or do you think that we hold our values as high today as
we did back in 1942?
Reverend Wilson. Not as though it is any surprise, I wasn't
around in 1942. And----
The Chairman. You are a student of history, though.
Reverend Wilson. Indeed, history and sociology, and I think
that, you know, that is a fairly easy and curt response that
values in 1942 were held in such higher regard than they are
now.
The Chairman. Let's make it 1952 or 1972.
Reverend Wilson. Same reply. I fail to see that the
argument has a point with--a relevant point to this
conversation.
The Chairman. OK; Mr. Parker, one question for you. Have
you examined the guidelines for amending the Constitution that
Senator Feingold mentioned?
Mr. Parker. Yes, I have. I attended one meeting with the
group, the Citizens for the Constitution.
The Chairman. How do these guidelines apply to the flag
amendment?
Mr. Parker. Well, without going into detail, most of them,
at least in the version that I saw, would endorse the process
that the flag amendment has been through. The flag amendment
has been very carefully considered and debated for 10 years. A
statutory alternative was tried first before the amendment
route was taken, another recommendation by Citizens for the
Constitution.
The flag amendment does not disturb much at all of
surrounding legal doctrine under the Bill of Rights. It is a
narrow and focused amendment. The intent behind it is quite
clear. There is a statute on the books, as you said, Mr.
Chairman, passed by the Senate 91 to 9, 10 years ago that gives
it especially pointed and narrow focus. So the most important
guidelines suggested by the Citizens for the Constitution I
believe are satisfied here despite their somewhat tangential
need, apparently, to oppose this amendment.
The Chairman. We have had it suggested here today, and
sincerely so, that, of course, this flag amendment would
suppress our rights of free speech. Is the flag amendment
really a suppression of speech similar to Cuba, China, and
other totalitarian regimes?
Mr. Parker. Well, I find that comparison, which I did hear
Senator Feingold make today--I am sorry, Senator Leahy, I
guess, make today, very puzzling. I don't see the relevance of
China or Cuba to the United States, and I frankly don't
understand why the connection would be made. Protecting a flag
in the United States is a very different matter from protection
of another flag in another, that is to say, totalitarian
country.
Senator Leahy. Mr. Parker, let's be specific what I was
saying. My analogy was how good it is to be able to go in those
countries and say we don't need laws to honor our flag, we
don't need laws to honor our country, we don't need laws to
honor our right to speak out, because we are able to do it as a
country.
They feel they have to have laws to protect their flags and
to require honoring of the flag. It is kind of a comfortable
feeling to say we are better than you, we don't need to do
that. That is what I was saying, not the analogy you put on it.
Mr. Parker. May I have a brief response?
The Chairman. Sure.
Mr. Parker. Senator, I understand what you are saying.
There are other countries that protect their flag as well. I am
told that Israel protects its flag. Denmark does. Do you
believe that Denmark is somehow in a category with Cuba and
China? I doubt that.
Senator Leahy. I don't recall that as being my statement,
Mr. Parker, and I am--if you want to add to my statement, feel
free. But I will accept it as your statement, not mine.
The Chairman. Well, my time is up. I think I will turn to
Senator Leahy at this point. And then as soon as you are
through, we will go to Senator Feingold, unless another
Republican comes.
Senator Leahy. Mr. Chairman, you and others have very
rightly praised General Brady and others throughout the room
for their military service, and nobody has offered similar
praise of Mr. May. I will. As the father of a Marine, very
proud father of a Marine, I praise your service. Your service
is shown as you come in this room without medals, without
honors, or anything else. People look at your legs, or what is
left of them. They know what your service has been. I admire
you for it and I honor you for it.
Mr. May. Thank you, sir.
Senator Leahy. General Brady, if this constitutional
amendment is adopted, the Congress will have to then set
penalties, actually statutes and penalties. What should be the
penalty for burning an American flag?
Mr. Brady. We have talked about this on many occasions. If
it were up to me, two things come to mind. First of all, I
think I would handle it, my feeling--a lot don't agree with me
on this--is that I would handle it like a traffic ticket. The
individual who received the ticket for burning the flag
hopefully wouldn't get a lot of attention, but then he could
pay the fine or he could then appear before--go to school, like
we do for some of them.
Senator Leahy. A fine of how much?
Mr. Brady. I have no idea, but I understand that if someone
demonstrates on the steps of the Supreme Court, if we had the
same kind of a penalty or fine for burning the flag as you have
for demonstrating on the steps of the Supreme Court, that might
be useful.
But I would send them to a class, and I would tell them
this is what the flag means to the people of America, this is
what it means to veterans, and that would be it.
Senator Leahy. So your feeling is we would amend the
Constitution to give a penalty which is about similar to that
of a traffic fine?
Mr. Brady. I think that in the past we have had 200 years
of experience with these kinds of laws. I don't think it would
be difficult for the Congress to sort out an appropriate fine
or an appropriate punishment. But I certainly wouldn't make
felons out of flag burners, no.
Senator Leahy. Now, if they wore the flag on their jacket,
would that fall into this?
Mr. Brady. I consider--you know, imitation is the greatest
form of flattery. I consider that flattery. I know that in Cuba
if you do that----
Senator Leahy. What if they wore the flag on their jacket
and then put some other symbol over it? Would that be
desecration, and should they get that same fine?
Mr. Brady. I don't think so, no. I mean, there are people
that disagree with me on that, but anything----
Senator Leahy. Well, I would.
Mr. Brady [continuing]. That people do with the----
Senator Leahy. I could see patriotically wearing a flag on
your jacket, but I can't see putting some other symbol over it.
Mr. Brady. It depends on what they put on it.
Senator Leahy. I don't care what they put on it. It would
be--I don't think the American flag should have something else
superimposed on it. Do you?
Mr. Brady. Well, it certainly wouldn't bother me, no.
Senator Leahy. OK; General Baca, what should be the fine
for a violation or what should be the penalty?
Mr. Baca. Sir, I couldn't tell you. I would say that it
would be up to--I think the way the amendment reads, it would
be up to the Congress then to determine the law, and from what
I understand----
Senator Leahy. What would be your personal feeling?
Mr. Baca. My personal feeling is that it should be a
misdemeanor. I don't think it should be a felony to burn the
flag. It should be a misdemeanor.
Senator Leahy. And you would amend the Constitution for a
misdemeanor?
Mr. Baca. Yes, sir, I would in this case.
Senator Leahy. OK; Ms. Seely, you talked about what kind of
an image we give if we allow or do not punish the burning of
the flag. I would draw a distinction between allowing and not
punishing. I would suspect that anybody in the State of Vermont
that burned the flag would do it at their peril. They would
probably need more police protection to stop the mob from
taking action against them rather than the other way around.
Our legislature has taken basically that position, that we are
the State that has said that we will honor the flag without
being required to honor the flag. I would mention it is the
State that has one of the highest percentages of veterans in
the country.
But let's accept your feeling that we must protect this as
a major symbol. What about the Bible? Should we do the same
thing for the Bible, which is a very significant symbol to a
large part of our country? We swear an oath on the Bible when
we take office. So do all our courts. That is usually the
symbol used to give an oath in court. Should we have laws
against burning the Bible?
Ms. Seely. I come to you, Senator, from middle America, out
in Sussex County, NJ, and I have no expertise in the area of
constitutional law. So I----
Senator Leahy. Well, I am not suggesting that, but I am
just seeking your feeling because you are saying we should do
this to protect symbols.
Ms. Seely. Again, that is something I really have not given
any thought to at all, and I do know that what I feel strongly
about from my heart is that kids need to know about respect.
And certainly the people that have gathered here together, our
military heroes, need to be respected, and that is the message
that I hope to convey.
Senator Leahy. General Brady, a national--and I do know you
spend a great deal of time on this, and I appreciate that. We
also have a national World War II memorial--we were talking
about how we honor veterans--that is being built to honor all
military veterans of that war, the citizens on the homefront,
the Nation at large, the high moral purpose and ideals that
motivated the Nation's call to arms. A number of the Senators
in both parties that I have had the privilege to serve with who
are veterans of World War II have helped on that. It is going
to be funded, I believe, entirely by or almost entirely by
private contributions.
Is your organization involved in trying to raise funds for
that?
Mr. Brady. No, sir. The organization--although I will say
that I am personally in other capacities involved in raising
funds for World War II memorials, but the Citizen Flag Alliance
has one mission and one mission only, and that is to return to
the American people the right to protect their flag. That is
all we do. No other mission.
Senator Leahy. Now, the American Legion has spent about $3
million in support of this proposed flag amendment. Do you know
how much money your alliance and your member organizations have
expended on the effort?
Mr. Brady. I think they have spent a lot more than $3
million, Senator. I know that they have spent, to restore one
flag, the Star Spangled Banner, one flag that the President has
called ``a treasure''----
Senator Leahy. No, I am talking about this effort.
Mr. Brady. I know they have spent something like $12
million. So we have spent, I think, less than they have for
that one flag simply because we believe all flags are
treasures.
Senator Leahy. OK; under the amendment, Professor Parker,
do we have to prohibit all flag desecration, or would it permit
legislation--now, remember, we don't have the legislation
before us, but assuming this is adopted, we have to pass
legislation. Would the amendment permit us to pass legislation
that prohibited only certain instances of flag desecration? Or
would it require all instances?
Mr. Parker. As I understand it, we do have legislation
before us. It is still technically on the books, the Flag
Protection Act of 1989. That did, in addition to defining
desecration with a string of words--mutilates, defaces,
defiles, and so on--make an exception for disposal of a flag
when it has become worn or soiled.
Senator Leahy. But if this amendment passed, would we have
to pass new legislation or would it--it speaks prospectively,
the amendment. Would we be required to pass new legislation or
would the old legislation automatically take effect?
Mr. Parker. That is a fascinating question. The 14th
amendment----
Senator Leahy. You are a fascinating lawyer. Do you have an
answer?
Mr. Parker. Well, no, I don't have an answer, but I have a
thought. The 14th amendment was enacted in large part because
of doubts about the constitutionality of the Civil Rights Act
of 1866. After--what was it?--3 years later, the 14th amendment
established the constitutionality of a previously enacted
statute.
Now, that previously enacted statute had not been declared
unconstitutional by the Supreme Court, to be sure, and that is
a difference. But I think the better view is that this law
remains on the books and would be revived if the amendment is
ratified. But perhaps it would be more sensible for the
Congress to reenact this, perhaps with amendments.
Senator Leahy. Well, let's say we did and we looked at
General Brady's and General Baca's idea that it should be like
a traffic fine for this. I mean, that would be something we
would want to look at, the amounts. Others might say it should
be a felony, and there should be a jail sentence.
So I suspect the reality is, Mr. Parker, if this
constitutional amendment were to be adopted, the Congress would
begin to spell it out. So let me ask you this: Could we draw
legislation that would prohibit only certain instances of flag
desecration? Could we, for example, outlaw only those flag
burnings intended as a protest against incumbent office holders
or exempt them?
Mr. Parker. Clearly, the answer to that is no. There is a
clear answer there. That would be a violation of the first
amendment.
Senator Leahy. Would it supersede a prohibition on prior
restraints? Could we prohibit flag desecration conspiracies?
You have somebody on the Internet saying let's get together at
3 o'clock Tuesday afternoon to burn a flag?
Mr. Parker. Well, first of all, the prior restraint
doctrine would remain in place. That is a first amendment
doctrine. It wouldn't be changed in any way by this amendment.
As to conspiracies, whether or not--I hadn't thought that
the prior restraint doctrine was a problem there, but I suppose
there could be a conspiracy prosecution. I don't see any reason
why not off the bat.
Senator Leahy. I am just asking. I am curious myself, and I
started thinking of these things yesterday.
What do you feel should be the penalty?
Mr. Parker. Personally, I would tend to agree with the
generals that a jail term is probably not reasonable. But
basically this is up to Congress. Members of Congress are
elected to make this decision. You made a decision with a lot
of expert advice 10 years ago in the Flag Protection Act of
1989, and perhaps you will choose to amend it.
Senator Leahy. I remember working on that, and I thought we
did make some progress on a number of instances, and I believe
you were one of the ones who gave--or those associated with you
gave us some advice, a lot of which was followed virtually
unanimously here. And if we wanted to put a 10-year penalty or
a 20-year penalty under this constitutional provision, do you
see a reason why we could not do that?
Mr. Parker. No, I think you could do that, and I certainly
trust the Congress----
Senator Leahy. I do, too. I mean, I just was curious. And I
also agree that we can put the traffic fine/misdemeanor thing
or the educational aspect that General Brady raised.
Mr. Chairman, I will have other questions for the record. I
would also ask that a letter from Dennis Burke, the Acting
Assistant Attorney General, explaining their understanding of
the notice from the committee be included in the record.
The Chairman. Without objection, we will put that in the
record.
[The letter follows:]
U.S. Department of Justice,
Office of Legislative Affairs,
Washington, DC, April 20, 1999.
Hon. Orrin G. Hatch,
Chairman, Committee on the Judiciary, U.S. Senate, Washington, DC.
Hon. Patrick J. Leahy,
Ranking Minority Member, Committee on the Judiciary, U.S. Senate,
Washington, DC.
Dear Mr. Chairman and Senator Leahy: Last week the Administration
requested that the Committee grant the opportunity for a witness to
testify at today's hearing on S.J. Res. 14, which the Committee did.
The Department of Justice has testified on this important issue several
times over the last few years and the witness has always been the head
of the Office of Legal Counsel; Assistant Attorney General William
Barr, Acting Assistant Attorney General Michael Luttig, and Assistant
Attorney General Walter Dellinger. Consistent with that tradition and
precedent, we agreed to provide Acting Assistant Attorney General for
the Office of Legal Counsel Randolph D. Moss as a witness. Yesterday,
consistent with our request to testify, we provided Mr. Moss' written
statement for the record.
As you know, the Department and the Committee have a long-standing
agreement over many Congresses that Department witnesses, at hearings
such as this, testify after any Members of Congress and only on panels
with other Administration witnesses. Unfortunately, twenty minutes
before the hearing, we were informed that, contrary to long-standing
Committee policy and the Department's request, Mr. Moss would not be
afforded the same courtesy traditionally given Department witnesses. As
important as it is to have a witness at this hearing, we think it is
equally important not to make an exception to this tradition in this
case.
We would be happy to answer any questions in writing or testify at
any additional hearings on this important constitutional issue. The
extremely short notice to the Department on the final decision
regarding the panel organization necessitates our equally short notice
to you of withdrawing our witness.
Sincerely,
Dennis K. Burke,
Acting Assistant Attorney General.
The Chairman. Let me just, before I turn it to you, Russ,
if I can: Mr. Parker, as you will recall, the Congress did
enact and the Senate did enact, by 91 votes, a statute back in
1989. And what was the penalty in that statute?
Mr. Parker. What it says here is that a violation shall be
fined under this title or imprisoned for not more than 1 year,
or both.
The Chairman. So that was the penalty that 91 Senators
voted for. I did not. But I believe Senator Leahy did vote for
that.
I have suggested that, look, if we pass this amendment, we
might as well stick with that statute that had such
overwhelming support. So that would solve that problem.
Senator Feingold.
Senator Feingold. Thank you, Mr. Chairman. I thank the
chairman for raising the question of the guidelines for the
constitutional amendments proposed by the Citizens for the
Constitution. As indicated in the item we put in the record
earlier, there are eight criteria for this, and certainly it
would be hard to argue that some of them have not been met. One
is that there be full and fair debate on the merits of the
proposed amendment, and through the good offices of the
chairman, I think that is happening again now in this Congress
and has in the past.
But there are other criteria that I don't think are clearly
met. Does the proposed amendment address matters that are of
more than immediate concern that are likely to be recognized as
of abiding importance by a subsequent generation? Certainly you
could argue that. On the other hand, when subsequent
generations find out that there have only been apparently
approximately 36 incidents of this kind in the whole Nation in
the last 4 years out of over 250 million Americans, and then
the proposal by some is to only make such acts a misdemeanor, I
think one may fairly question whether this criteria is met.
Another criteria, is the proposed amendment consistent with
related constitutional doctrine that the amendment leaves
intact? And, another is, have proponents of the proposed
amendment attempted to think through and articulate the
consequences of their proposal, including the ways in which
this amendment would interact with other constitutional
provisions and principles? In my view, that has not been done.
In fact, that is my greatest concern, the impact this will have
on the basic structure of our Bill of Rights that has been the
underpinning of our system of government. So I simply respond
to that briefly.
I also want to respond to Senator Smith's remarks. I wish
that Senator Smith was still here, because when he gives the
example of the burning of the Selective Service card, United
States v. O'Brien, he fails to mention that the reason the
Court said that individuals could be presented for burning
their Selective Service cards was that there was an independent
government purpose, in terms of the integrity and the ability,
the functioning of the draft and that was the reason why the
Court felt that that is not a permissible act. In fact, the
court specifically indicated that if the prosecution simply had
to do with the nature of the speech rather than that threat, it
may have made a very different decision.
Finally, Senator Smith makes my point exactly about the
problem with this approach, not with the feeling but the
approach, when he says, ``Senator Feingold has proposed
limitations on free speech through campaign finance reform.''
You will not see my name on the proposed constitutional
amendment to amend the Bill of Rights for purposes of campaign
finance reform, as strongly as I feel about it. In fact, I
voted against it, as did Senator McCain, because even though I
want to win, I do not want to win at all costs. I will play by
the rules. And my view of the rules is that it is a huge
mistake to amend the U.S. Constitution, particularly the Bill
of Rights, so that I can win the campaign finance battle. I
want to win it within the rulings of the Supreme Court, even
though I may not be happy with them.
I think that is a very important point because it is not
your goal of protecting the flag, of course, that I object to.
It is the mechanism that you have chosen.
Having said that, I want to ask a question of Professor
May. First let me reiterate my admiration for your wonderful
service to this country. I was struck by the comparison you
drew in your testimony between the effort that is being made by
many and by the Congress to pass this amendment and the
frequent failures of the Congress and our society to follow
through on our commitment to veterans and their families, and
especially their healthcare. The reference to the bonus march
historically is particularly compelling.
I can tell you there are a lot of veterans out there in
this country who feel physically and emotionally hurt by the
failure of this Government to provide for their healthcare. I
wonder if you would comment a bit about our priorities with
regard to those programs versus passing the flag amendment.
Mr. May. It is my belief that the true measure of our honor
to the people who answer the call to serve under arms is what
we do for them afterward, implicit in or explicit in the social
contract within which we engage them in military service. So to
that end, I would suggest that providing benefits for veterans
and understanding the consequences of military service that
transcend the veteran experience and spill over into the family
is something that we ought to give more attention to as a
Nation.
For example, with Vietnam veterans, we found that as early
as the mid- and late 1970's, they were not using the healthcare
resources that were available to them within the Veterans
Administration. And it seemed to be the case that part of the
reason for that was that they did not feel the same
identification or the affinity with some of the characteristics
and trappings of those offices that earlier veterans had felt.
That was one of the reasons why in 1979 the VA launched the Vet
Center program when Senator Cleland was then Administrator of
Veterans Affairs.
So I think the Congress recognized the wisdom and
understanding that some of the symbolic representation of
service and honoring service that was found in the traditional
service delivery system wasn't working well for this new
generation of veterans, and the decision then was made to do
something that could actually be of help to them in the form of
outreach and engaging them with appropriate help so that they
could become involved.
I think that the continued shortfall in providing those
kinds of services for veterans and families is something that
is really a national problem that ought to be addressed.
Senator Feingold. I thank you. I just wish we could have
this kind of energy and passion behind the issues relating to
healthcare for veterans. It would be enormously helpful to some
of our efforts in the Congress.
Reverend Wilson made exceptionally eloquent remarks, and it
sort of gave voice to some feelings I didn't even know I had
about this issue when it comes to the distinction between that
which is secular and that which is sacred.
I am wondering if you have ever had a chance to talk to
West Virginians about your views on this, or your parishioners.
How do they react? I am sure there are an awful lot of people
in West Virginia that believe we ought to pass this amendment.
How does it go when you have those kinds of conversations?
Reverend Wilson. I must confess, Senator, I have not had
those conversations about this particular amendment. I am sure,
however, that you are right, that there are many folks who
would fall on each side of the issue.
Senator Feingold. The interesting experience I have had,
especially with veterans, is whenever we have had a chance to
sit down--I do a town meeting in every one of Wisconsin's 72
counties every year, and sometimes one of the veterans comes
from the American Legion to represent their view. On two or
three occasions, the individual has come and stated the view of
the American Legion Hall that he represents, and then said,
``But I don't agree with it,'' because he as a veteran felt
that perhaps this wasn't the wisest course, despite his love
for the flag.
General Brady, it is good to see you again.
Mr. Brady. Yes, sir.
Senator Feingold. In my opening remarks, I talked about the
need for those who fervently support this amendment to
understand that those of us who oppose it do not support flag
burning, and revere and honor the flag for which it stands, and
I appreciate your earlier remarks that suggest that.
But I do want to read from an advertisement that was run
against a Member of Congress by your organization in the 1996
elections. It said:
Some things are wrong. They have always been wrong.
And no matter how many politicians say they're right,
they're still hateful and wrong. Stand up for the right
values. Call Representative So-and-So today. Ask him
why he voted against the flag protection amendment,
against the values we hold dear, the constitutional
amendment to safeguard our flag, because America's
values are worth protecting.
Would you agree that this advertisement suggests that the
Representative in question thinks it is OK to burn the flag and
that he voted against the flag amendment because he disagrees
with America's values? Do you think it is a fair
characterization of any member of this body or the other body
that votes against the flag amendment because he or she
believes that America's values include supporting the right of
free expression and that amending the Bill of Rights may send
us down a dangerous path is somehow contrary to the most
fundamental of American values? In the end, for those of us
that have seen these kinds of ads run against us or other
Members of Congress, do you really think that is a fair
characterization of Members of Congress?
Mr. Brady. I don't know where you left me here, but I don't
think there is any question that--no one is questioning
anybody's patriotism or anything like that. I didn't write
that. I may not have been with the organization when that was
put out. I don't find it offensive as I listen to it just
through my ears.
One point, though, I would like to make: You said there
were only 39--I don't know how many flag--there have been
literally hundreds of flag burnings, hundreds and hundreds of
flag burnings.
Senator Feingold. The information that I was presenting was
that in the past 4 years, 36 incidents nationally.
Mr. Brady. Absolutely not true. There have been hundreds.
And, of course, that has nothing to do with whether it is right
or wrong. We don't have people threaten the President or shout
``fire'' in a theater very often, but those things are wrong,
and there are laws against them.
Senator Feingold. Could you provide the committee with the
documentation of those hundreds----
Mr. Brady. Now, you got to understand that many of the flag
burnings are not documented. They do not get documented. They
are not in the newspapers because it is perfectly legal to do
so. But in some cemeteries, I am told up in one State there
have been hundreds of flag burnings on Memorial Day. In my
State, on Memorial Day, we have what they call flagsitters in
some cemeteries, where they will actually go into the cemetery
to protect the flags that go out on the veterans' graves.
So no one could put an exact number on it, but I am very
comfortable in saying hundreds.
Senator Feingold. Well, Mr. Chairman, I would really
appreciate it if the committee would be provided with any
documentation for this. In the absence of documentation, it is
awfully difficult for me to accept the notion that there have
been hundreds of such incidents. I know that any occasion of
this occurring in my State, one famous occasion that you know
of, we know about it, we are angry about it, and we condemn it
every year by having the biggest Flag Day parade in the United
States of America in Appleton, WI, where that incident
occurred.
So I think it is important for the record, given the fact
that we are talking here about, again, amending the U. S.
Constitution's Bill of Rights for the first time, that any
evidence of such incidents be presented to the committee and
not simply be hearsay.
Thank you, Mr. Chairman.
The Chairman. Thank you.
General Brady, let me just ask you this. I asked Reverend
Wilson if he thought the country had gone downhill, in essence,
since 1946, let's say, or 1942. What is your opinion?
Mr. Brady. I think in my lifetime----
The Chairman. I am talking about values.
Mr. Brady. In my lifetime, in terms of the values that I
knew as a young person, as opposed to what my children and
grandchildren are exposed to today through the media and in
many other venues, the standards of the country certainly have
gone downhill. The values of the country are not held as dearly
as they were once.
The Chairman. I remember back in my youth, the most
startling film ever to come forward was ``The Outlaw'' with
Jane Russell. And that would be kind of a Saturday children's
matinee today in comparison to what we have today, wouldn't it?
Mr. Brady. I remember how horrified we were when the movie
``Gone With the Wind,'' the guy said, ``Frankly,'' somebody,
``I don't give a damn.'' And so when we see what our children
are--and we hear often from many people that they believe that
patriotism, which I think is absolutely essential to our
country, is deteriorating. The majority of the people believe
that it is in this country deteriorating. If our people don't
love the country, the people, the leaders, the land, their
neighbors, there is no hope for us in the future, I don't
think.
The Chairman. Well, I think what I am pointing out is that,
you know, some believe that since the school prayer decision we
have gone downhill. Some believe that we have gone downhill in
some of these earnest interpretations of the first amendment
that we will protect almost anything that is bad and criticize
almost anything that is good, sometimes. Some believe that
since the school prayer decision we can do just about anything
we want to in the schools, as long as it isn't sectarian or
isn't religious or doesn't include the Bible. And in many
respects, some of the things that are done there are not very
uplifting to our young people.
You kind of indicated that, Ms. Seely, in your--how many
years have you been a teacher?
Ms. Seely. I have been a teacher for about 22 years, and I
certainly agree with what you are saying.
The Chairman. Well, some people think that our movies have
gone downhill, so much so that we have had to categorize them
from ``G'' to ``X,'' I guess. And you can hardly find a good
movie today that isn't an ``R'' movie, which is violence,
profanity, sex, et cetera.
Senator Feingold. Mr. Chairman, if I could just make a
point? I would be curious to know if the flag amendment passes
and doesn't solve the problem of bad movies, what is the next
amendment?
The Chairman. I am not suggesting that, but I am getting to
a point. I am getting to a point that I think is far more
significant than that.
The Internet today is filled with pornography. I have seen
religious sites taken over by pornographers who put obscene
things on the religious sites.
You could just go on and on as to the corruption and the
vice and the degradation, the lack of morality, the lack of
moral purpose, the lack of moral principles, and you have to
say that compared to 1942 or 1952 or 1962 or 1972 or 1982, our
country is filled with many more problems.
I guess what I am saying is this: Maybe it is time--at
least in my opinion, maybe it is time that we have a big battle
over values, and let the flag be a part of that battle over
values. Because if we pass this amendment through the U.S.
Senate by the requisite two-thirds vote--and we have only been
about two votes behind up until this year. I believe we can get
the 67 votes this year. But if we do that, that means that 50
States--and if we get it through the House by a two-thirds
vote, 50 States are going to have to concentrate on just what
is valuable and what are the values of this country--at least
with regard to the flag. It would be maybe a small step forward
compared to what we have been going through over the last 40 or
50 years.
I have to say that maybe it would be very, very good for
our young people to see that we value something in this
country, albeit a piece of cloth, that is quite beautiful, that
80 percent of us--in fact, I think really most all of us have
valued all these years, but 80 percent of us want protection
from physical acts of desecration.
I think it would be one of the best things that could
happen in this country, and I would like to see these arguments
against it made in every State in the Union, and let's let the
people decide it. That is what this is all about.
So, last Congress, we were two votes away in the Senate. We
passed it in the House of Representatives by the requisite two-
thirds vote. We were just two votes away from it as of last
Congress, and I do believe we have got some people here that
will put us over this time.
I don't think the country is going to be any worse off for
it. I think the country is going to be much better off. What is
your opinion?
Mr. Brady. Oh, yes, sir. You know, I think that the
beautiful thing is that the people are involved in this. It is
the people's will we are dealing with here. And once it gets
out of the Congress, if you will just let the people decide,
and it gets into the States, we will have this debate. And then
the people and the children can talk about what is valuable to
them and what their values are in terms of the first amendment
and in terms of the flag and what it represents to all of us.
It would be a great, great debate, I think.
The Chairman. General Baca.
Mr. Baca. Mr. Chairman, you know, no question I agree with
what you are saying, but let me just say that Mr. Quintero and
I had a discussion about this, and let me say that Mr. Quintero
speaks very broken English, and what he lacks in formal
education he makes up for in common sense, and if I live to be
100 years old, I will not be as wise as he is. And the message
that he said--and I probably should have delivered it in my
remarks--was that he feels that it is the responsibility of the
Government to send that message to the school children. That
was his comment to me. He said that the Government should act
and send the message to the school children that it is wrong to
burn the flag and that we should start this debate over values.
The Chairman. The thing that bothers me about our schools
is you can teach almost anything that is wrong, but you can't
teach some of these things that are right, you know, and that
bothers me a great deal. I am not talking about the colleges. I
am talking about our elementary and secondary schools of
education.
Professor May.
Mr. May. Mr. Chairman, if you would permit, I would like to
comment on this issue about children and what children seem to
understand. I testified--and it is true--that I was wounded
slightly over 31 years ago, a week and a day to be exact.
Shortly after I was wounded--and I went into the military from
a very small town in southwestern Indiana. That was my address
of record. After I was wounded, it obviously became well-known
in my community that something bad had happened to me in
Vietnam. One of the consequences of that was that one of the
teachers in one of the parochial schools urged the children in
a class that included one of my cousins to write letters to me
to express whatever it is they wanted to express. The letters
seemed pretty unfiltered. And these were students who were 10
and 11 years old, like Ms. Seely's students.
And what I got from them was not a lot of rhetoric about
symbolism. What I got from them was a real sort of down-and-
dirty kind of congratulations and thank you and well wishes
because of what had happened to me. It seemed that the students
appreciated that there was some sort of important connection
between what had happened to me and their lives, although they
couldn't express that very well.
Many years after that, including in the present time, I do
quite a bit of work in schools. I am frequently invited to come
to U.S. history classes about this time of year when they are
in the unit that talks about more modern history. And I find
that students today are concerned, not, again, about
abstractions so much as about personal experiences and
contributions and meaning that people like me have drawn from
their experiences.
So I am not sure that I would endorse the notion that what
is happening in the schools, at least as it pertains to
veterans and understanding veterans' experiences and what they
mean, are negative or deteriorating. I am very pleased and
impressed----
The Chairman. Neither would I say that. But what I am
saying is that I think regardless of our religious persuasion
or our ethical persuasion or philosophical persuasion, I think
many of us feel that our country has allowed some deterioration
in values over these last 30 years or so.
Now, you have to contrast that with the right to free
speech. You have to contrast that with the right to freedom of
expression. On the other hand, that doesn't mean that we have
to take an extreme view of these matters either.
Professor Parker, did you have anything you would care to
add on this subject?
Mr. Parker. I would just support your point by saying that
I think we know that clear stands on narrow issues can have
broad ramifications. Rosa Parks, for example, made a decision
on a narrow, clear issue, and her stand had broad
ramifications. I personally believe that if this is sent to the
States and the debate goes on in the States and the people
decide to ratify this amendment, it will have broad
ramifications in terms--perhaps not legal terms, but in
cultural terms I believe it will.
The Chairman. It may not turn around all the messes that we
have created over the last 30 or 40 years, but the fact is that
for once we will have stood up on a matter of principle.
Now, let me just say this: I have a tremendous amount of
respect for Senator Feingold and his point of view. He has
handled this in every way at the highest level, as far as I am
concerned. He sincerely believes that he is right on this
issue, as I do. I believe I am right on this issue. I believe
that most all of you are right. And, Professor May, I have
great admiration for you and for what you have gone through and
for who you are. And also, Reverend Wilson, like I say, I
respect your faith and your beliefs. But I really believe it is
time for this country to start holding some things not as
sacred in the sense of substituting them for God, but holding
matters in such esteem that literally we stand for something.
I am very concerned about it, and especially in this day
when we are really in a mess over in Kosovo. I was one who
voted to support the President. I have always supported whoever
is President when I think that they are doing what is right.
And, frankly, I am very upset that he didn't have overwhelming
support because what is going on over there is absolutely
wrong.
Again, I sometimes question some of the values around here,
but it is time for this country to start facing some of these
value-laden problems. The best way I can see they can face this
problem, because it does involve one of the most important
values of our country, a symbol of country, is to have this
debate around this country. My personal belief is that if we
pass this constitutional amendment and all we do is give the
people's representatives, the Congress of the United States,
the right to resolve this issue.
Congress may decide not to pass anything and keep the law
the way it is with the 5-4 decision of the Supreme Court. But I
wouldn't bet on that. And I am willing to bet that if this--not
that I am a betting man, but if this passes both Houses of
Congress, it will be one of the quickest ratified
constitutional amendments in history. And it won't be just out
of emotion. It will be because people are sick and tired of the
way things are going in this country, the greatest country in
the world with the greatest future, the greatest economic
system, the greatest constitutional system, the greatest
protection for religious freedom and the right to speech, ever
seen in the history of the world. And we are continuing to
circumscribe speech of those like you, Reverend Wilson, as we
continue to allow almost anything else to be heard by our
children.
This is kind of nebulous, but I just kind of wanted to make
that point. And I really want to just say one more time how
moving it is to me to have you holders of the Congressional
Medal of Honor, you recipients of the Congressional Medal of
Honor in our presence, the sacrifices you made for our country
and to find you supporting this.
Now, we have some in our body here who are Medal of Honor
winners who do not support this, and they do so sincerely from
their point of view. My feeling is this is something the people
ought to decide. And even then, if the people decide to ratify
this amendment, assuming we get it out of both Houses of
Congress, it is still going to come back to the Congress to
determine what we do about it.
I have suggested here today, why don't we just adopt the
statute that Senator Leahy voted for, Senator Biden voted for,
most members of this committee voted for. I did not because I
felt like it wasn't constitutional, and the Supreme Court
upheld my point of view in the Eichman case. And I just didn't
feel like I could do that, although I wanted to--I prayed that
that statute would work.
We had such overwhelming support for it. Why not just
assume that will be the statute? I certainly don't think it
will be any broader than that, and it might even be more narrow
than that, because there will be all of those who come back in
and say, well, it should be even more narrow if this amendment
is passed and ratified.
So all of you have been very helpful to us here today, and
you have expressed the points of view, your respective points
of view, and to me that is very important.
This will not be our last hearing on this important topic.
We will hear from the Department of Justice, which was very
miffed today that they had to appear on the same panel as all
of you. It is their right because I should have had them in a
separate panel, and they should have gone first. But we will
remedy that, and I hope they will accept my apology. But we
will hear the Department of Justice as well as current and
former Senators, and I will need to arrange for the
Department's testimony before next week's markup.
So we will hear from Members of Congress and the Department
on April 28, and we will move ahead with that.
The Chairman. We will recess until further notice. Thanks
so much.
[Whereupon, at 12:27 p.m., the committee was adjourned.]
PROPOSING AN AMENDMENT TO THE CONSTITUTION OF THE UNITED STATES,
AUTHORIZING CONGRESS TO PROHIBIT THE PHYSICAL DESECRATION OF THE FLAG
OF THE UNITED STATES
----------
WEDNESDAY, APRIL 28, 1999
U.S. Senate,
Committee on the Judiciary,
Washington, DC.
The committee met, pursuant to notice, at 9:36 a.m., in
room SD-226, Dirksen Senate Office Building, Hon. Orrin G.
Hatch (chairman of the committee) presiding.
Also present: Senators Grassley, Leahy, Kennedy, Feinstein,
and Feingold.
OPENING STATEMENT OF HON. ORRIN G. HATCH, A U.S. SENATOR FROM
THE STATE OF UTAH
The Chairman. If we could begin, we are happy to welcome
everybody here today including each of the Senators here to
testify. We are having this special hearing on the
constitutional amendment to protect the American flag from acts
of physical desecration. I have enjoyed working with my
colleagues to hold the full committee hearing on April 20 and
the subcommittee markup on April 21. I was also glad to work
with them in scheduling today's hearing.
Now, this hearing is special because we will hear testimony
from several current members of the Senate and from a former
member. Each of these Senators on our first panel brings an
interesting perspective to this important debate, and in order
of seniority of current members, these Senators include:
Senator John Chafee from Rhode Island. Senator Chafee is a
Marine Corps veteran who served with distinction in World War
II, including the Battle of Guadalcanal, and who served in the
Korean Conflict as well, if I have that correct.
Next, we are very fortunate to have Senator John McCain. I
think Senator McCain will be here momentarily. He is a veteran
Navy pilot who, without question, as all of these gentlemen
have done, served his country with extraordinary endurance and
distinction in the Vietnam War. Now, given the demands on his
time being on the floor with the Y2K bill, I appreciate his
willingness to testify today.
We also have Senator Bob Kerrey from Nebraska. Senator
Kerrey is a Navy SEAL veteran who served with distinction in
the Vietnam War. He is the only Senator to receive the
Congressional Medal of Honor for service in a conflict since
the Civil War, and we are really proud of you, Bob, and proud
to have you here.
We will hear next from Senator Max Cleland of Georgia.
Senator Cleland is a veteran of the U.S. Army who served with
distinction in the Vietnam War. Senator Cleland is also the
lead Democratic cosponsor of the Flag Protection Amendment, and
I have certainly enjoyed working with him on this important
matter.
We are also going to hear from Senator Chuck Hagel of
Nebraska. Senator Hagel is a veteran of the U.S. Army who
served with distinction in the Vietnam War. Senator Hagel is
the only combat veteran in the Senate who served his country in
the enlisted ranks.
We are also very fortunate to have with us, last but not
least, Senator John Glenn of Ohio. Senator Glenn is a Marine
Corps veteran who served with distinction in World War II and
in the Korean Conflict. Further, we are all familiar with
Senator Glenn's service to his country as an astronaut and as a
Senator. And we are happy to welcome you back, John. We admire
you and, of course, appreciate you very much.
On the second panel, we will hear from Randolph Moss, the
Acting Assistant Attorney General for the Office of Legal
Counsel, and we look forward to hearing Mr. Moss testify today.
There is one other distinguished American whose schedule
prevented him from being here today, but who sent a letter. The
letter reads in part:
I am honored to have commanded our troops in the
Persian Gulf War and humbled by the bravery, sacrifice
and ``love of country'' so many great Americans
exhibited in that conflict. These men and women fought
and died for the freedoms contained in the Constitution
and the Bill of Rights and for the flag that represents
these freedoms, and their service and valor are worthy
of our eternal respect. * * *
I am proud to lend my voice to those of a vast
majority of Americans who support returning legal
protections for the flag.
Sincerely, H. Norman Schwarzkopf, General, U.S. Army,
Retired.
I would, without objection, place Senator Schwarzkopf's
letter in the record, along with several----
Senator Leahy. General Schwarzkopf.
The Chairman. Did I say ``Senator'' Schwarzkopf? It must be
a yearning ambition here, but I would like to place General
Schwarzkopf's letter in the record, along with several other
letters that we have received in favor of the Flag Protection
Amendment.
[The letters referred to are located in the appendix.]
The Chairman. Now, a number of our Senators on the first
panel are on a very tight schedule today. In order to
accommodate our distinguished guests, we will hear from these
Senators in an order that is somewhat different from their
seniority. And I would ask that, as a matter of courtesy, the
members of the committee hold any statements they would like to
make until after the first panel is through. In the interest of
time, I will put my own statement in the record.
[The prepared statement of Senator Hatch follows:]
Prepared Statement Of Senator Orrin G. Hatch
Good morning. Today we are having a special hearing on the
constitutional amendment to protect the American flag from acts of
physical desecration. I have enjoyed working with my colleagues to hold
the full committee hearing on April 20th and the subcommittee mark-up
on April 21st. And I was glad to work with them to schedule this
morning's hearing.
This hearing is special because we will hear testimony from several
current members of the Senate and from a former member. Each of these
Senators on our first panel brings an interesting perspective to this
important debate.
In order of seniority of current members, these Senators include:
Senator John Chafee from Rhode Island. Senator Chafee is a Marine Corps
veteran who served with distinction in World War II, including the
Battle of Guadalcanal, and who served in the Korean Conflict.
Next, we are very fortunate to have Senator John McCain. Senator
McCain is a veteran navy pilot who served his country with
extraordinary endurance and distinction in the Vietnam War. Given the
demands he faces on the floor at this time, I appreciate his
willingness to testify today.
We also have Senator Bob Kerrey from Nebraska. Senator Kerrey is a
Navy Seal veteran who served with distinction in the Vietnam War.
Senator Kerrey is the only Senator to receive the Congressional Medal
of Honor for service in a conflict since the Civil War.
Next, we will hear from Senator Max Cleland of Georgia. Senator
Cleland is a veteran of the United States Army who served with
distinction in the Vietnam War. Senator Cleland is also the lead
democratic cosponsor of the Flag Protection Amendment, and I have
enjoyed working with him on this important issue.
We will also hear from Senator Chuck Hagel of Nebraska. Senator
Hagel is a veteran of the United States Army who served with
distinction in the Vietnam War. Senator Hagel is the only combat
veteran in the Senate who served his country in the enlisted ranks.
We are also very fortunate to have with us Senator John Glenn of
Ohio. Senator Glenn is a Marine Corps veteran who served with
distinction in World War II and in the Korean Conflict. Further, we all
are familiar with Senator Glenn's service to his country as an
astronaut.
On the second panel, we will hear from Randolph Moss, the Acting
Assistant Attorney General for the Office of Legal Counsel. We look
forward to hearing from Mr. Moss today.
There is one other distinguished American whose schedule prevented
him from being here today, but who sent a letter. That letter reads in
part:
I am honored to have commanded our troops in the Persian Gulf
War and humbled by the bravery, sacrifice and ``love of
country'' so many great Americans exhibited in that conflict.
These men and women fought and died for the freedoms contained
in the Constitution and the Bill of Rights and for the flag
that represents these freedoms, and their service and valor are
worthy of our eternal respect. * * *
I am proud to lend my voice to those of a vast majority of
Americans who support returning legal protections for the flag.
* * *
Sincerely,
H. Norman Schwarzkopf, General, U.S. Army, Retired.
I would like to place General Schwarzkopf's letter in the record
along with several other letters that we have received in favor of the
Flag Protection Amendment.
A number of the Senators on the first panel are on a tight schedule
today. In order to accommodate our distinguished guests, we will hear
from these Senators in an order that is somewhat different from their
seniority. I would ask that, as a matter of courtesy, the members of
the Committee hold any statements they would like to make until after
the first panel is through. In the interest of time, I will put my own
statement in the record.
The Chairman. Naturally, we will listen to the ranking
Democrat leader on the committee.
Let me just say this: We are honored to have each and every
one of you here. Each of you has an individual perspective on
this matter. Some agree with me and some disagree with me. That
is not important to me. What is important is that we have the
best testimony we can on both sides of this issue so that we
can really give it the consideration that a constitutional
amendment truly does deserve.
So, with that, I will turn to the distinguished ranking
member.
Senator Leahy. And to accommodate, I will put my whole
statement in the record, Mr. Chairman.
The Chairman. Without objection.
[The prepared statement of Senator Leahy follows:]
Prepared Statement of Hon. Patrick J. Leahy, a U.S. Senator From the
State of Vermont
I want to thank Chairman Hatch for agreeing to hold this additional
session to complete the hearing we began last week. I had asked that we
resume this morning to have an opportunity to hear from John Glenn.
Senator Glenn had a NASA commitment last week in Houston and could not
be with us on the day the Committee had chosen for the hearing.
John Glenn is a highly decorated Marine combat pilot from World War
II and the Korean War. He was until his recent retirement the senior
Senator from Ohio. He is a mythic figure in the Mercury space program
who recently returned to space at the age of 77 as part of a 9-day
Space Shuttle mission. I was honored to witness his ascent into the
heavens and happier still to see him upon his safe return to earth. No
matter what his achievements, the heights to which he has risen, the
accolades he has received, John Glenn has always kept his feet firmly
planted on the ground. That grounding is something we need on this
issue and I thank him for accepting this latest mission, returning to
the Senate to share his perspective on this proposed amendment to the
Constitution. He and Annie are not only our heroes, they are our
friends.
I began my opening statement at our hearing last week urging
respect for the differing points of view on this proposed
constitutional amendment and recognition of the patriotism of Americans
on both sides of this question. The Senators who gather this morning to
testify are on both sides of this matter. These are Senators who will
have the responsibility of voting whether they deem it ``necessary''--
in the language of Article V of the Constitution--to cut back on the
Bill of Rights for the first time in our nation's history in this
regard. We respect them as members of the United States Senate and as
decorated veterans of World War II, Korea and Vietnam. I would have
been pleased to hear from any number of them at our hearing last week,
but understand that they were told they could only appear this morning.
Further, I think that the Committee owes another apology to Mr.
Moss, who is appearing on behalf of the Administration. It was not Mr.
Moss but the Committee that attempted to impose last-minute and highly-
unusual circumstances on that testimony. For anyone to indicate
publicly and to the press that Mr. Moss personally objected to
appearing with other witnesses was incorrect and unfair to him. I
welcome Mr. Moss to the Committee and thank him for the articulate
statement forwarded last week.
We need to remember that our soldiers did not fight for a flag,
they fought for freedom. Last week, we heard the eloquent words of
Professor Gary May, a former Marine and decorated war veteran, who lost
both legs as a result of a land mine explosion while serving in
Vietnam.
Professor May testified:
I love this country, its people and what it stands for. The
last thing I want to give to future generations are fewer
rights than I was privileged to have. My family and I served
and fought for others to have such freedoms and I am opposed to
any actions which would restrict my children and their children
from having the same freedoms I enjoy.
Marvin Stenhammar, another decorated and disabled combat veteran--a
former paratrooper and Green Beret--testified before this Committee
last July:
[T]hough many of my colleagues and friends were wounded in
action, they really were not wounded for the flag but rather
for what that flag stands for--liberty. Flags, no matter how
honored, do not have rights. People do.
Substance, not symbols. The principles of freedom and the
sacrifices of our veterans are important. They have about them a
greatness that we cannot improve upon and that is beyond the power of
any protester to diminish.
I am proud that in 1995, the Vermont Legislature chose the First
Amendment over the temptation to make a politically popular endorsement
of a constitutional amendment regarding the flag. The Vermont House
passed a resolution urging respect for the flag and also recognizing
the value of protecting free speech ``both benign and overtly
offensive.'' Our Vermont Attorney General has urged that we trust the
Constitution and not pander to the passions of the times.
Vermont's actions are consistent with our strong tradition of
independence and commitment to the Bill of Rights. Indeed, Vermont's
own Constitution is based on our commitment to freedom and our belief
that it is best protected by open debate. Vermont did not join the
Union until the Bill of Rights was ratified and had become part of the
country's fundamental charter.
Vermont sent Matthew Lyon to Congress and he cast the decisive vote
of Vermont for the election of Thomas Jefferson. He was the same House
member who was the target of a shameful prosecution under the Sedition
Act in 1789 for comments made in a private letter. Vermont served the
nation again in the dark days of McCarthyism when Senator Ralph
Flanders stood up for democracy and in opposition to the repressive
tactics of Joseph McCarthy. Vermont's is a great tradition that we
cherish and that I intend to uphold.
At the conclusion of last week's hearing on this proposed
constitutional amendment, some expressed their view that this is a
nation in moral decline and that amending the Constitution to punish
``desecration'' of the flag is thereby justified.
I would point out that there is far more civic virtue in the
American people than some credit. At least that is the case in Vermont.
The issue of civic virtue does merit discussion. We in the Senate
do play a role, and an important one, in setting the tone of civic
virtue in the Nation.
Many religious leaders, however, take the view that it is a sign of
moral confusion that the proposed amendment speaks of ``desecrating'' a
secular object, the flag. They find the language of this proposed
amendment offensive.
Reverend Wilson testified last week that ``Desecration of an object
is possible only if the object is recognized as sacred.'' He said that
when the Government forces people to treat something not associated
with the divine as holy, it has mandated religious idolatry.
Do we promote civic virtue when we arrogate to Congress the right
to declare ``sacred'' and capable of ``desecration'' something that is
not associated with the divine? Or do we simply mandate idolatry for
people of faith, as Reverend Wilson warned?
This concern is not limited to religious leaders. Conservative
legal scholar Bruce Fein emphasized this concern when he testified
before a House Subcommittee in 1995. He said:
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 religious clause of the first amendment.
This widespread uneasiness over the language of this amendment
underlies a deeper problem. Keith Kreul, a former National Commander of
The American Legion, makes this point in his written statement to the
Committee:
A patriot cannot be created by legislation. Patriotism must
be nurtured in the family and educational process. It must come
from the heartfelt emotions of true beliefs, credos and tenets.
We will never promote civic virtue by punishing people for peaceful
protest. That can only undermine the foundations of our civic life. If
we are sincere about wanting to do something to promote civic virtue in
the United States, we can best do it by setting an example in our own
service as Senators and as citizens, rather than by attempting to
punish a handful of yahoos, most of whom already can be and are
punished under existing State laws against theft, destruction of
property, and other forms of ordinary hooliganism. We can promote civic
virtue not by empty words but by action, by what we do, not by what we
say.
We can teach the lessons of civic virtue by setting an example in
the way we conduct the work of the Senate. We can show it is important
to keep our promises to veterans by providing them with decent health
care. We can show leadership by promoting an effective treaty to remove
land mines from the face of the earth. We can help put more teachers in
the classroom, to help the youth of our country to appreciate and reach
for something higher, something nobler. We can help provide more school
resource officers and better security at our schools in a time when it
is needed.
We can and should promote civic virtue, but we should do so by
setting an example in our own exercise of our rights and
responsibilities, and not by an effort to limit the rights of others.
That is what John Glenn and our other witnesses do every day and what
we all should rededicate ourselves to doing.
Senator Leahy. I would also ask that statements by
Professor Robert Cole and a statement of Robert Evans on behalf
of the American Bar Association be put in the record at the
appropriate place.
[The statements of Mr. Cole and Mr. Evans follow:]
Prepared Statement of Prof. Robert H. Cole
Thank you for giving me the opportunity to submit this testimony.
My name is Robert H. Cole. I am Professor of Law Emeritus at the
University of California School of Law at Berkeley, where I have taught
Constitutional Law for over 30 years.
As the Nation's great deliberative body, the Senate has a unique
role and the solemn responsibility to assure that proposed changes in
the basic structure or principles of American Government are in fact
necessary to promote fundamental needs of the people. The proposed flag
desecration amendment does not meet this test. On the contrary, the
proposed amendment represents a very risky departure from established
American traditions of freedom and serves no purposes worthy of
changing the Bill of Rights.
In our system of individual liberty and limited government, the
established legal framework for evaluating government proposals to
restrict citizens' expression is to assume that people are free to
speak and communicate in ways they think best and to require the
government to have very strong justification for silencing them. In
constitutional law, cases involving government restriction of speech
arose relatively late, but this framework, which was first and
eloquently formulated by Justices Holmes and Brandeis, has now been
established law for some half of this century.
Texas v. Johnson, the 1989 Supreme Court decision which, as you
know, is the central case on ``desecration'' of a flag, is squarely in
this established framework. The Court's treatment of the government's
justification for restricting speech is at the heart of the issue
before you, and so it may be worth spending a few minutes describing
the holding. Johnson was convicted of ``damag[ing] a * * * national
flag'' knowing that this would ``seriously offend one or more persons
likely to observe * * * his action''; he burned a flag while fellow
protesters chanted outside the Republican National Convention. The
State of Texas conceded, as it had to, that Johnson's conduct
communicated his views and was expression under the First Amendment.
Following the established framework, the Supreme Court then looked for
the government's justification for punishing communication and found
none: In fact there was no damage to others' property or person and no
actual threat of violence or disturbance of the peace.
The communication did seriously offend others, but it has been
established law for fifty years that offensiveness cannot be a
justification for silencing speech. You can readily see why, because
all kinds of views may be offensive, outrageous, blasphemous to
someone; we simply cannot have a free society if we are going to get
into the business of picking and choosing which offensive speech to
silence, let alone silence it all. The harms done by speech have to be
more than disturbing other people's minds and hurting their feelings,
even very much. Few people really disagree that tolerating
offensiveness is an acceptable price of our system of free speech.
Finally, the Court acknowledged that government has an interest in
preserving the flag as a national symbol but held that such an interest
does not justify criminal punishment for burning a flag in political
protest. Again, you can see why this is: Coerced belief in symbols is
diametrically contrary to the citizen's freedom of conscience. As the
Supreme Court said, to pick and choose which symbols some citizen
cannot speak ill of or hold in contempt, and thereby to force our
political preferences for certain symbols on the citizenry, is exactly
what the First Amendment does and must forbid. Instead we come back to
the basic framework: If a person expresses his contempt in a way that
does real harm to substantive interests--he burns someone else's
property, he causes violence, and so on--the government has the
justification for punishing his expressive conduct.
No Senator on either side of this issue wants to junk this
framework or get into the totalitarian business of enforcing obeisance
to various official symbols. Rather the supporters' position seems to
be, as the dissenters in the Johnson case argued, that flags are unique
and should be a one-time exception to this established framework, a
framework I would emphasize that has preserved and prompted so much of
our liberty and defined who we are as a people. But as we all know from
our personal lives, from raising our children, and from standing up for
principle, the idea of ``just make this one exception'' is rarely if
ever neat and cost-free. It is certainly not going to be cost-free in
the case of this amendment to the Constitution.
To begin with, the amendment is not limited to the cases that are
always and apparently only used to support it. No one proposes an
amendment simply prohibiting burning flags with a contemptuous state of
mind (and, as proponents' testimony keeps repeatedly and excessively
saying, defecating on a flag). Obviously, then, the amendment is
intended to cover much more than the examples used to support it, and
no statute implementing it is likely to be written limited to those
terms. However such open-ended language as ``the flag'' and ``physical
desecration'' is interpreted, we can predict that much peaceful
political activity using flags, for instance, draping a flag around
oneself or taping a peace symbol to it to protest the Kent State
killings (which the Supreme Court held protected in Spence v.
Washington), or an African-American citizen's burning his ceremonial
flag in mournful expression of despair over a racial murder (with
accompanying speech protected in Street v. New York) will be prevented
or punished. Because the flag is a powerful and ubiquitous cultural
symbol as well, we can be certain that uses of flags in painting,
graphic art, drama, even movies, will be prevented or punished. Because
flag insignia are widespread in uniforms, athletic and casual clothing,
and in advertising and store-front commercial displays, there is every
reason to think that some of these personal and commercial uses of
flags will be prevented or punished. Because flags are made in all
sorts of sizes and from all sorts of materials for all sorts of
display, all sorts of uses, from picnics to home decorations, may be
called into question.
Attempting to withdraw so central--and beautiful and evocative--a
symbol as the American flag from political and cultural discourse is
extremely unwise and wrong, in my judgment. Yet this amendment will
certainly attempt to do that in some degree or other. These uses of
flags often create a sense of community and patriotic pleasure, as well
as serve the high principles and purposes and political expression and
cultural commentary. But perhaps it is even more important that these
questions have not been debated seriously, systematically, or in the
general public. During the ten years that a flag desecration amendment
has been regularly brought to the Congress, not once to my knowledge
have the supporters of the amendment actually attempted to spell out
realistically how far the amendment will go in fact and how far they
would like it to go. Not once to my knowledge have they attempted
explicitly to work through and justify whether it would be worth the
costs that could be fairly predicted. The supporters seem unwilling to
acknowledge that there are any risks at all, except to burners and
defecators. Nor do the costs seem to have been systematically worked
out, stated up front, and debated in concrete terms in the Congress.
Yet, the burden of justifying something so fundamental as a change
to the Bill of Rights, to any provision of the Constitution, must be on
the proponents. The duty of the Senate is to preserve and protect the
Constitution, and it should do so until persuaded that change is
necessary for the good of the country. This kind of case has not been
made at all and, in keeping with the Senate's conservative rule, the
Committee should reject the amendment on these grounds alone. In my
judgment, of course, this is not only a case of refusing to amend the
Constitution when in such great doubt; these costs will be serious and
the amendment will be positively harmful.
You may have seen a news story that the American pilot whose B-2
was downed over Yugoslavia felt sustained during his hours behind enemy
lines by the American flag that he had stuffed under his clothes. The
story illustrates the emotional attachment people have for our flag. It
also illustrates what is wrong with the proposed amendment. Would a
crushed, grubby, sweatsoaked flag carried as if it were underwear under
one's uniform be thereby desecrated? (This is only an example, of
course; the story did not say what the pilot's particular flag ended up
looking like.) No statutory form of words can distinguish the condition
of such a flag from that of a flag if it were used to dry off after
exercise (or the flag that Abraham Lincoln is sitting on in the Lincoln
Monument sculpture!)--unless, that is, the statute distinguishes not
the grubby condition of the flag but the state of mind with which the
person used the flag. Inevitably a statute implementing the amendment
will have to distinguish between cases of physical harm to flags in
which the person using the flag approves of it or is expressing views
deemed by police, prosecutors, or juries to be appropriately patriotic
from cases in which these authorities decide the person used the flag
with contempt or disrespect. Once the legal authorities get into
citizen's attitudes toward patriotism or policy, what will prosecutors
do about cases in which a person wraps a flag around himself to protest
welfare cuts or to oppose the bombing in Yugoslavia (both examples from
newspaper photos)? Are these sufficiently respectful or impermissibly
hostile?
These examples--and they are endless--tell what Americans are like.
We are inventive, our culture creative, our tradition free. Like the B-
2 pilot, we will find all kinds of individualistic ways to express
ourselves with flags. It will be a disaster when the government starts
trying to sort these out on pain of criminal punishment.
The results are that the amendment will both prevent a wide range
of expression and inevitably end up punishing those whose views are
considered by someone in law enforcement to be unpatriotic or
contemptuous of some symbol, policy, or principle deemed by the
authorities to be above such criticism. Supporters of the amendment
have repeatedly insisted that the amendment would not punish people for
their views. The point is that the amendment necessarily will do just
that.
All of these various examples of inhibition and suppression of
expression illustrate the kinds of costs the amendment will inflict in
our pluralistic and creative society as well as the costs in principle.
There may be many more examples and other types of costs. To take just
one more example, of a different sort, the judicial process under the
proposed amendment might well adversely affect the protections afforded
under the First Amendment to other kinds of speech. We do not know how
courts would relate the proposed amendment to the First Amendment, but
there is the risk that courts will take a flag desecration amendment as
expressing an authoritative judgment that offensiveness or symbolism
now can constitute interests that the government can use to justify
silencing speech in other areas, having nothing to do with flags.
With all of these obvious risks to our very constitutional system,
what can justify going ahead anyway? How can we proceed as if
systematic study and acknowledgement of the grave downside risks of
their proposal were irrelevant? One possibility is that the example the
supporters have almost exclusively relied on--burning a flag
contemptuously--seems so terrible that it justifies any solution, no
matter how dangerous. But the number of such flag burnings is trivial,
maybe a handful in a decade. There is no societal problem of actual
flag burnings, and I do not believe anyone seriously contends that
there is. So it must be that we simply must make sure there never is
any such flag burning, or that no flag burner ever goes unpunished.
This absolutist hope cannot be realized in fact and, more
important, it shows a disabling loss of perspective and proportion. It
is out of proportion when you think of all the truly serious evils that
go unremedied, and it is out of proportion when you think of the loss
of freedom for a significant number of our citizens that the amendment
will impose for so little benefit. It begins to resemble a crusade more
than a balanced legislative effort to solve real social problems. The
Senate, as our great deliberative body, could well reject the amendment
simply because its skewed sense of priority is unacceptable in the
solemn context of changing the fundamental charter of the Nation. The
cost to our sense of priorities at a time when so much tragedy and need
exist in our country and around the world must be added to the costs of
this amendment.
Another argument for the amendment that supposedly obviates the
need to look at its costs is that the flag in some way functions as a
symbol that unifies us or makes all our freedoms possible, so that
misuse must be prevented whatever the cost. The argument has been put
in various ways. Professor Richard Parker testified (Senate Judiciary
Committee, July 8, 1998) that a system of free speech requires a
community, that a community requires a unifying symbol, and that the
flag is our unifying symbol. Unless desecration of the flag is
prohibited, we cannot have a system of free speech. Under this far-
fetched theory, we would really not have had a system of free speech at
least since Texas v. Johnson in 1989, nor could we have free speech
with Canada or Great Britain, with whom we do not share a flag or flag-
substitute symbol. How coercing people who experiment with flags will
actually create a community, and what happens to the community if they
start burning more flags, are unexplained. No, whatever community
underlies the system of communication is to be found in the deep and
ancient bedrock of culture, in the very foundations of language,
speaking, and listening, and not in contemporaneous, changing attitudes
toward particular political symbols.
Professor Stephen Presser testified (Subcommittee on the
Constitution of the House Committee on the Judiciary, March 23, 1999)
for the Citizens Flag Alliance, the principal proponent of the
amendment, that it should be adopted because in our country ``personal
liberty * * * has * * * spun almost out of Constitutional control'' at
the expense of ``responsibility.'' ``We have not reached the fatal
point of anarchy yet in America, but we have come disturbingly close.''
We should therefore begin ``to enforce responsibility and preserve
order'' by ``restrict[ing] the incendiary manner of expressing'' ``the
message that flag burners, defecators, or other flag destroyers and
abusers might seek to convey.'' The premise of this argument is a
demeaning and, in candor, absurd caricature of the American people. It
is an argument that knows no limits, for it would justify any number of
other restrictions on liberty that would in Professor Presser's eyes
improve the ratio of responsibility to liberty. It starts with the flag
as a ``coherent'' American symbol but opens the door to whatever it
takes to restore the ``decency, civility, responsibility and order''
that Professor Presser thinks we need to make ``our fundamental
freedoms possible,'' which apparently is not the case now. It takes no
account of the fact that there are few, if any, flag destroyers who
would be taught a lesson, while the rights of innumerable citizens to
use flags in political and cultural discourse would be nullified. Above
all, the idea that an amendment to the Constitution allowing Congress
to prohibit flag desecration would turn around an out-of-control nation
on the brink of anarchy cannot be taken seriously as a factual matter.
Less extreme arguments that the amendment would help ``unify'' the
country are subject to the same empirical objections. In none of these
arguments is unity as a social concept ever explained or described, so
there is no way of knowing what it means in such a vast and complex
country as ours and whether or how the amendment or any other strategy
would promote it. It simply becomes a slogan. There is no explanation
of how the rare occasions of flag abuse have subverted the unity the
great majority of Americans seem to feel. Moreover, at a different
level of analysis, respect is a condition of unity and it cannot be
coerced. Coerced silence, coerced respect for flags, can only create
resentment, disrespect, and disunity, and not just among the
disaffected but also among the many ordinary people who will be
adversely affected by the amendment. What unifies our country is
consent, the voluntary sharing of ideals and commitments and the
respect for others given voluntarily.
Another form of the absolutist argument that the amendment is
required regardless of the costs to freedom is that ``flag
desecration'' is simply wrong regardless of its failure to meet the
existing constitutional requirement of substantive harm, and a way must
be found to be sure it can be punished. We have seen that what would
make it ``wrong'' could be offense to others or the desecrator's
attitude, and that punishing a citizen for expression on either of
these bases is fundamentally inconsistent with our established system
of free expression. The only other basis on which ``desecration'' is
always ``wrong'' is simply that any given flag ends up mutilated. This
may be what is meant when the proponents talk about ``protecting the
flag.'' This argument converts flags into a kind of icon whose purity
or sanctity is violated when it is damaged or abused. It is at bottom a
religious argument. It is no accident that the proposed amendment
prohibits ``desecration,'' the core meaning of which is to convert a
sacred object to a secular use. But flags are secular objects; they are
political emblems to be loved if one chooses but not to be sanctified.
It is a dangerous confusion of the political with the sacred to think
in terms of sanctifying our national flags, or even subconsciously to
do so. For the sake of religious faith at least as much as for the
neutrality of government, the sacred must be reserved for things having
to do with the divine. I would think that believers perhaps above all
should reject this argument for the amendment and look at the proposal
with sceptical reserve.
A final argument for the amendment is that it is popular and that
the Senate should defer to the many state legislatures that have passed
resolutions in favor of it. I question the factual premises of this
argument, because I believe perhaps not more than one or two percent of
the public have ever heard of the proposed amendment, and even fewer
have been informed of the arguments on both sides. I believe that state
legislatures have responded to a little-noticed unopposed lobbying
campaign. Some organized veterans groups have campaigned for the
amendment, while other veterans (I am one, for what it is worth, though
one not remotely exposed to combat) oppose it.
But, more basically, this whole line of argument misconceives the
Senate's proper role in amending the fundamental charter of our
government and liberties. This is not a piece of ordinary legislation,
attempting to resolve a clash of interest groups on a specialized
subject. The Senate's role in amending the Constitution is to rise
dispassionately above the political pressures of the moment and to make
a judgment with the depth, perspective, and independence appropriate to
a Constitution that promises ``to secure the blessings of liberty to
ourselves and our posterity.'' In this context, as I have tried to show
in this testimony, there really can be no cost-free symbolic gesture,
no one-way deference to a constituency.
The proposed amendment is inconsistent with the established
American principles of freedom of expression and will work serious harm
of unpredictable proportions, while it solves no problem that could
justify such costs. I respectfully submit that, exercising their
independent judgment in their proper role, this Committee and the
Senate should reject the amendment.
__________
Prepared Statement of Robert D. Evans on Behalf of the American Bar
Association
On behalf of the American Bar Association, I thank you for this
opportunity to submit a statement in support of the First Amendment
right to free speech and against S.J. Res. 14, the proposed
constitutional amendment to ban flag desecration.
As members of the legal profession, the over 400,000 men and women
of the American Bar Association have a special obligation to protect
and defend principles embodied in the Constitution and the Bill of
Rights. Of these principles, none are more cherished than the
individual freedoms guaranteed to all Americans under the First
Amendment. Religious Freedom. A Free Press. The Right to Assemble.
Freedom of Speech. Each of these rights is essential to a free and
democratic society.
Our flag is a national treasure worthy of the reverence most
Americans afford it. It uniquely symbolizes both the power of authority
and the individual rights of the people. The flag stands as a powerful
symbol of our nation's sovereignty, unity and patriotism--but also of
the freedoms found in the Bill of Rights. National strength, unity and
patriotism are compatible with the freedom to protest against such
authority, even by destroying in a peaceful manner its preeminent
symbol. While such an expressive act is offensive to most of us, the
fact that such protest is tolerated gives this nation its strength.
Government may neither prohibit the expression of an idea simply
because it is offensive, nor designate acceptable ways to peacefully
communicate a message. Justice Jackson stated in West Virginia State
Board of Education vs. Barnette, ``If there is any fixed star in our
constitutional constellation, it is that no official, high or petty,
can prescribe what shall be orthodox in politics, nationalism,
religion, or other matters of opinion or force citizens to confess by
word or act their faith therein.'' This amendment seeks to impose
patriotism by government decree.
Proponents of this measure argue that it would merely restore the
right of the people to protect the physical integrity of the flag. The
historical record reads otherwise. There is no 200 years of precedent
or implicit understanding that was ``suddenly'' overturned by the
Supreme Courts decision in Texas v. Johnson in 1989. There is not a
single reference to the flag in the Constitution and its original ten
amendments, the Bill of Rights. Our founding fathers saw no need to
afford constitutional protection to the newly adopted symbol of our
nation. To the contrary, they specifically added the Bill of Rights to
limit the government's ability to restrict the fundamental rights of
the individual. This proposal would amend the Bill of Rights in a
manner that runs counter to the intent of the Framers and the spirit of
the Constitution.
Make no mistake, this amendment is not about restoration, but
restriction. The proposed constitutional amendment to ban flag
desecration would, for the first time in our nation's history, amend
the First Amendment to diminish the vital protections conferred by the
Bill of Rights and give greater protection to the symbolic value of the
flag than to the freedoms and ideals it represents.
Proponents of this amendment argue that the act of flag desecration
is not a protected form of political speech. They argue that conduct
that does not involve the spoken or written word is not protected
speech under the First Amendment. History and the courts have long
recognized that speech extends beyond written and spoken words and
encompasses symbolic conduct. Of course, by common sense we know that
pictures--or actions--can be worth a thousand words. A band of patriots
dumps tea into Boston Harbor, a single student stands in front of a
tank in Tiananmen Square, an African American woman refuses to give up
her seat on a bus--each conveys a powerful message without requiring a
single written or spoken word. Political dissent is often more
powerfully expressed through peaceful acts of protest than through
words.
Certainly we recognize that flying or saluting a flag communicates
a message of support for the ideals it symbolizes and the government
and policies it represents, just as desecration of a flag communicates
disappointment in, or a lack of support for a government or its
policies. Free speech under the Constitution provides the same
protection to flag burning as it does flag waving. The fact that most
of us find flag desecration to be offensive does not take away its
status as protected political expression.
It is true that not all conduct is protected under the First
Amendment and that some limitations have been placed on the right of
free speech. Violent expressive conduct involving flag desecration is
already subject to these limitations. In fact, the majority of the
incidents cited by proponents of the amendment would be punishable
under current law. Persons who engage in flag desecration that involves
stolen property, vandalism, violence or imminent danger, or breach of
the peace are subject to arrest and prosecution under applicable
existing laws. Neither a constitutional amendment nor any new statute
is needed to punish those malicious acts.
Since its founding, our nation has thrived on the vigor of free
speech and robust dissent. The rare incidents of flag desecration do
not present a danger to our society. The remedy for expressive actions
that offend the majority is not criminal sanction, but increased
political discourse. America has nothing to fear from free and open
debate, even in the form of hurtful or offensive treatment of the
symbol of our constitutional government. This is because our national
strength stems from our tolerance of a diverse range of views in the
vast ``marketplace of ideas.''
Justice Brandeis, in Whitney v. California, eloquently put it this
way:
To courageous, self-reliant men, with confidence in the power
of free and fearless reasoning applied through the processes of
popular government, no danger flowing from speech can be deemed
clear and present, unless the incidence of the evil apprehended
is so imminent that it may befall before there is opportunity
for full discussion. If there be time to espouse through
discussion the falsehood and fallacies, to avert the evil by
the processes of education, the remedy to be applied is more
speech, not enforced silence.
The court in Texas v. Johnson offered a similar answer:
The way to preserve the flag's special role is not to punish
those who feel differently about these matters. It is to
persuade them that they are wrong * * * because it is our flag
involved, one's response to the flag burner may exploit the
uniquely persuasive power of the flag itself. We can imagine no
more appropriate response to burning a flag than waving one's
own, no better way to counter a flag burner's message than by
saluting the flag that burns. * * *
We are a nation of diverse ideological and often intense political
views. We hate flag burning. But survey results show that the majority
of Americans who initially indicate support for a flag protection
amendment oppose it once they understand its impact. The switch is
dramatic; support for an amendment plummets from 64 percent to 38
percent. The majority of Americans recognize that the proposed flag
desecration amendment is simply incompatible with our democracy and
liberty.
At last week's hearing, two witnesses supporting the amendment
testified against making flag desecration a felony or misdemeanor.
Major General Patrick H. Brady, Chairman of the Citizen's Flag
Alliance, stated that the appropriate penalty for flag burning was a
citation equivalent to a ``traffic ticket'' and/or a ``fine'' or
compulsory education akin to ``traffic school.'' Professor Parker
allowed that Congress could do anything, but that a ``jail term was not
reasonable.'' Where is the sense of proportion? Amend the Constitution
to allow for the equivalent of a traffic ticket? Amending our
Constitution is a serious endeavor that must be reserved for issues of
the fundamental structure of American government and social order.
This amendment is not a magic panacea for any social or moral issue
we face as a nation. Indeed, the time and effort expended on this issue
detracts from much more serious problems facing our nation that demand
Congress' attention. From violence in our streets and schools, to the
economic security of our older generation, to questions of race, to
questions of war, our nation is faced today with a myriad of challenges
that will determine the shape of the society we will all share. How our
nation faces these challenges will have far more impact on our youth
than passage of a constitutional amendment on flag desecration.
Flag burning is an important form of political dissent around the
world. If Congress rejects the constitutional amendment to prohibit
flag desecration, as we hope it will, it does not mean that the
government supports or endorses such action. The vast majority of those
who oppose such an amendment, including the American Bar Association,
deplore any act of flag desecration and hold the flag in high regard.
It does mean that our government is defending the principles embodied
in the Constitution that have preserved individual liberties for over
200 years. I urge members of the committee to stand firm against
emotional appeals for the proposed flag amendment. Protect the freedoms
of belief and expression guaranteed to all Americans under the First
Amendment by opposing S.J. Res. 14.
Senator Leahy. Like you, I thank the Senators who are here
and taking this time, and Senator Glenn, who wanted to be here
last week but had a NASA commitment in Houston and so is here
today. The four Senators who are here are all close friends of
all of us on this panel, and they don't need to hear my speech.
As I said, I will put that in the record.
The Chairman. We were happy to accommodate you, Senator
Glenn. You look much more relaxed than I have been used to
seeing you in the past. A lot happier, too. [Laughter.]
Senator Glenn. So is Annie.
The Chairman. Well, this is the order of the Senators, the
suggested order, and if anybody has any objection, we will
listen. But we will start with Senator Kerrey, and then Senator
Hagel needs to follow Senator Kerrey, as I understand it. Then,
Senator Chafee, if we can go to you at that point, we would
like to do that.
Senator Chafee. That is fine.
The Chairman. As soon as Senator McCain comes in, we will
try to accommodate him after the three of you, and then Senator
Glenn, of course, and we will let Senator Cleland be the last
one for this first panel.
So, Senator Kerrey, we welcome you. We are proud of you,
and we look forward to your testimony.
STATEMENT OF HON. J. ROBERT KERREY, A U.S. SENATOR FROM THE
STATE OF NEBRASKA
Senator Kerrey. Thank you very much, Mr. Chairman and
members of the committee. First of all, I take from your
opening remarks, at least, that hope springs eternal. I hope
that we don't have a repeat of last year where there was an
attempt to get a consent to limit debate to 2 hours. Whenever
this comes to the fore, I would never attempt to filibuster
this.
The Chairman. I don't think anybody would.
Senator Kerrey. I do hope we have an ample time on the
floor to get a full debate this year.
The Chairman. Well, if you will allow me to interrupt, I
wasn't for the 2-hour thing, as far as I was concerned. I felt
like--I think they talked in those terms because it was at the
end of the session. But I think this deserves a full and fair
debate.
Senator Kerrey. Thank you, Mr. Chairman.
Well, Mr. Chairman, it is obvious that you are winning
converts. Each election brings you closer to the 67 votes that
you need or two-thirds of those present and voting to send this
17-word amendment to the States for their ratification, where
there are now 49 legislatures that have indicated that they
intend to ratify this amendment.
These 17 words would make it constitutional for the
Congress to pass a law giving the Government the power to
prohibit the physical desecration of the flag of the United
States of America.
Mr. Chairman, like you, I respect the views of those that
are different than mine, and I especially support and respect
the views of those who support this amendment. And, especially,
I want to pay tribute to the American Legion and the American
Legion Auxiliary. These patriots have done more than any others
to help especially young Americans understand that freedom is
not free. And to them I say that I have listened with an open
mind to their arguments and their appeals to have me support
this amendment. Regretfully and respectfully, I must once again
say no.
Mr. Chairman, I fear that the unintended consequences of
these 17 words and the laws that will be enacted later will be
far worse than the consequences of us witnessing the occasional
and shocking and disgusting desecration of this great symbol of
liberty and freedom. Real patriotism, Mr. Chairman, cannot be
coerced. It must be a voluntary, unselfish, brave act to
sacrifice for others.
When Americans feel coercion, especially when the coercion
is by their Government, they tend to rebel. So none of us
should be surprised, Mr. Chairman, if one unintended
consequence of the laws that prohibit unpopular conduct such as
this is an actual increase in the incidents of flag
desecration.
Another unintended consequence will be the diversion of
police resources from efforts to protect us from dangerous
crimes, and I regard this as a serious matter. The efforts to
protect us from those who desecrate the flag will require
police officers to train themselves to decide when and where to
respond to complaints. We pass the laws, but others have the
responsibility of enforcing them, and they will receive
complaints from neighbors about neighbors or friends or people
that are desecrating the flag that they want the police to
respond to. These laws will give the power of the Government to
local law enforcement agencies to come in and decide when some
individual is desecrating the American flag.
Mr. Chairman, there are 45 words in the first amendment,
and this simple amendment protects the rights of citizens to
speak, to assemble, to practice their religious beliefs, to
publish their opinions and petition their government for
redress of grievance.
The 17 words that are in this proposed 28th amendment would
limit what the majority of Americans believe is distasteful and
offensive speech. Although this seems very reasonable, since a
growing majority of Americans do not approve of flag
desecration, Mr. Chairman, it is only reasonable if we forget
that it is our right to speak the unpopular or offensive that
needs the most protecting by our Government.
In this era of political correctness, where the fear of 30-
second ads has homogenized and sterilized our language of any
distasteful truth, this amendment takes us in the opposite
direction of that envisioned by our Founding Fathers whose
words and deeds bravely challenged the comfortable status quo.
Mr. Chairman, I took the liberty of going and buying a flag
that I intend to give to this committee because I believe all
of you on this committee are patriots and believe that you all
love your country and that you especially are moved by the
symbol that this flag represents. I bought this flag because it
reminds me every time I look at it that patriotism and the
cause of freedom produces widows--widows who hold this flag to
their bosom as if it were the live body of their loved one.
This flag says more about what it means to be an American
than thousands of words spoken by me. But, Mr. Chairman,
current law protects this flag. If anyone chooses to desecrate
my flag and survives my vengeful wrath, they will face
prosecution by our Government. Such acts of malicious vandalism
are prohibited by law.
Mr. Chairman, the law also protects me and allows me to
give a speech born of my anguish or my anger during which I set
this flag aflame. Do we really want to pass a law making it a
crime for a citizen, despondent over war, despondent over
abortion, despondent about something else they see going on in
their country, that burns this flag? Do we really want a law
that says that our police will go out and arrest them and put
them in jail?
Mr. Chairman, I hope not. Patriotism calls upon us to be
brave enough to endure and withstand such an act, to tolerate
the intolerable.
Mr. Chairman, I sincerely and respectfully thank you for
your patriotism and all of those who hold views different than
mine. I will pray this amendment does not pass. But I thank God
for the love of country exhibited by those who do.
The Chairman. Thank you, Senator Kerrey.
Senator Hagel.
STATEMENT OF HON. CHUCK HAGEL, A U.S. SENATOR FROM THE STATE OF
NEBRASKA
Senator Hagel. Mr. Chairman, thank you. I wish to express
my thanks, along with my distinguished friend and colleague
from Nebraska, for an opportunity to appear here this morning.
It is not often Nebraska gets to go first, Bob. I credit
that more because of your presence than mine, so thank you for
bringing me along.
I wish to take a different approach than Bob. I have
supported this effort, and I, like Bob and all of us here
today, very much respect and appreciate the points of view
here. There are legitimate questions about this, constitutional
questions, relevant questions, differences of opinion and
philosophy. But I have come over the last couple of years to
this position as a result of some of the thoughts that I wish
to share with you this morning.
This is about a statement as much as anything else. It is a
statement about America's priorities. I don't see it as
depriving individuals of their liberties to say what they wish,
to make this an important part of the most important document
in our country, the Constitution of the United States.
We all know that freedom also is attached to
responsibility, and when you wish to express yourself, you have
some responsibility for that expression.
We know that if this amendment passes and our States ratify
it and it becomes our newest addition to the Constitution, it
will not stop nuts from burning the American flag. We
understand that.
But this is a symbol. Senator Kerrey very appropriately
identified that symbol. The American flag is a symbol, and
America always is in need of a rallying symbol of dignity,
respect for others. All that is embodied in our American way of
life. The American flag represents that.
This is not a trivial issue. This is not a trivial
amendment, in my opinion. This is a very relevant amendment.
The Founding Fathers gave us the ability to amend the
Constitution. And why did they do that? This is a breathing,
living, dynamic paper. But more than a paper, it is us.
The Founding Fathers gave us the ability to amend the
Constitution, which we have done many times, because they
understood that there would be new, relevant challenges to the
times that America would live in, engage in; and, hence, much
good has been the result of those amendments to the
Constitution.
I, like all of you, I suspect, have often wondered what the
great men and women of early America would have thought, the
Founders of the Constitution, the authors of the Constitution,
the Founders of our Nation, if over 200 years reeling forward
we would be engaged in some debate about individuals burning
the American flag, someone other than the British or actually
our own people, our own citizens.
So that is a perspective that I think needs to be not only
articulated in this debate, but given some perspective overall
as we approach what we wish to do about the issue of amending
our Constitution to reflect protecting the flag and embody that
in the Constitution.
Some of our cultural problems today--and, yes, Littleton,
CO, certainly fits into that. Some of these problems are a
result of respect or, more appropriately, lack of respect for
something bigger than ourselves, something more important than
ourselves. The flag represents that.
The flag has been our Nation's symbol since the birth of
our country. It does represent all that is good and decent
about our country and our values. It does have value. It is a
symbol in itself of our values and our respect for all.
The flag has been carried in every battle that this Nation
has fought. And as Bob mentioned, the flag covers the caskets
of those returning home after making the supreme sacrifice. Its
symbolism is so sacred to Americans that we teach our children
not to let it touch the ground. It flies over our schools and
places of worship. The Pledge of Allegiance unites all
Americans, regardless of their heritage, political philosophy,
or background.
Freedom of speech is not unlimited. We understand that. We
know that you can't yell ``fire'' in a crowded theater when
there is no fire. You are not supposed to. Does that warrant a
constitutional amendment? No.
But, for me, when I add it all up and look at the
completeness of the issue, it does lead me to believe that not
only in a time of great challenge, as is always the
responsibility for those of us, not just policymakers but all
citizens, to stay vigilant, the symbolism is important, and the
statement about our values and our country is important.
Because this flag is our national symbol, its desecration stirs
many passions.
I believe in the end that the effort to amend the
Constitution to specifically protect the flag is not only
justifiable, but I think it is the preferred approach, and I
will continue to support that effort.
Mr. Chairman, thank you.
The Chairman. Thank you, Senator Hagel.
Senator Chafee, we will have you next. After Senator
Chafee, Senator McCain.
Senator Chafee.
STATEMENT OF HON. JOHN H. CHAFEE, A U.S. SENATOR FROM THE STATE
OF RHODE ISLAND
Senator Chafee. Thank you very much, Mr. Chairman, for
giving me an opportunity to testify on the proposed
constitutional amendment, S.J. Res. 14. As you know, I strongly
oppose the amendment for several reasons.
First, we come to this debate as we never have before, with
the direct experience of having our actions guided by the
Constitution----
The Chairman. Excuse me, John.
Thank you for the flag, Senator Kerrey. We are very
grateful to have it for the committee, and it was a wonderful
gesture on your part.
Senator Kerrey. Thank you.
The Chairman. Thank you for being here.
Sorry, Senator Chafee.
Senator Chafee. My first reason for being opposed to the
amendment, Mr. Chairman, is we have just come through the
impeachment trial, and in the course of that trial, I think
every single one of us delved into the Constitution, read it
over to a greater extent than we had in past years. We became
much more familiar with that document as a result of the
impeachment trial. As a result, I think we all came out
marveling at the foresight and the wisdom of the Framers of the
Constitution, the men who wrote this document.
The Constitution is a document that provides each citizen
with rights. That is what it is all about. Broad rights are
provided for in this Constitution. What are some of them? The
right to assemble peacefully, the right to speak and publish
freely, the freedom to worship without interference, freedom
from unlawful search and seizure, freedom from slavery and
involuntary servitude, the right to vote. It is these freedoms
that define what it is to be American. That is what this
Constitution is all about.
In more than 200 years, the Constitution has been amended
only 27 times, and one of those was a mistake and was later
repealed. The amendments have reaffirmed and expanded
individual freedoms. That is what it is all about. This
proposed amendment would not expand the list of freedoms. This
amendment for the first time would limit individual freedom.
Furthermore, in my judgment, it trivializes the Constitution.
I believe none of us can even imagine James Madison taking
this proposed amendment seriously, and the other authors of the
Constitution.
This proposed amendment would enable Congress to punish
those who desecrate the flag. What will be next? Will we next
see a constitutional amendment demanding the standing to
attention when the National Anthem is played? Will there be a
list of worthy documents and symbolic objects for which
desecration is constitutionally prohibited? Should there be a
constitutional amendment to protect the Bible? What about other
religious symbols such as the crucifix or the menorah? What
about the Constitution itself? Surely the Constitution embodies
the same significance as the flag.
Second, Mr. Chairman, I oppose the amendment for its lack
of clarity. The text of the proposed amendment provides no
guidance over what constitutes desecration. In my State of
Rhode Island, there is a highly prized work of art at the Rhode
Island School of Design. It is a hooked rug, carefully and
conscientiously made by patriotic American women some 100-plus
years ago, and its design is the American flag. These women
made it as a symbol of their national pride, yet it is a rug--
which by definition is to be walked on. Is that desecration?
Should these patriotic craftswomen have gone to jail?
I have here the Boy Scout Handbook, Mr. Chairman. It is the
handbook of which 34 million copies have been made. And what
does it do regarding the flag? And I quote from it: ``Care of
the Flag'' on page 478.
Clean the flag if it becomes soiled. Mend it if it is
torn. When worn beyond repair, destroy it in a
dignified way, preferably by burning.
Now, what do we say about that, Mr. Chairman? Is that
desecration? Are we going to send Boy Scouts off to jail
because they burn a flag?
I wonder what we would say when some bearded, untidy
professor burns an American flag outside a convention hall, and
the conclusion is he should go to jail. But three blocks away,
a Boy Scout burns the flag in a dignified manner. Would he go
free? If so, then we are getting into the questions of the
intentions of the flag burner, and this, indeed, is a messy
area.
Third, there has been no rash of flag-burning incidents.
Such incidents are extremely rare. Each year, a mere handful of
miscreants have committed the admittedly contemptible act of
burning the flag. We don't have an epidemic, we don't have a
crisis on our hands, Mr. Chairman, for which a constitutional
remedy is the only solution. We should not provide those who
burn the flag with the attention they crave. I am confident, as
Senator Kerrey noted before, that if this passes, people will
use this as a convenient way of getting attention, getting on
the television.
At the committee's hearing last week, Senator Feingold
asked a witness, Maj. Gen. Patrick Brady of the Citizens Flag
Alliance, how many incidents of flag desecration had occurred
recently. The witness answered, ``Hundreds.'' I asked CRS to
search news reports from throughout the U.S. for reports of
flag desecration. The search covers 4 years, from January 1995
to January 1999. In those 4 years, CRS came up with a grand
total of 43 separate incidents. In 1 year there were 7, in
another year 11, in another year 10, in another year 15.
Many of these reported flag desecrations were committed by
drunken teenagers who were charged with crimes ranging from
vandalism to disorderly conduct. I hope the committee agrees
that a handful of random acts, 43 over 4 years, committed by
disorderly juveniles, would not merit amendment to the
Constitution.
Mr. Chairman, I would like to provide for the record a copy
of the CRS search for the hearing record.
The Chairman. Without objection, we will put that in the
record.
[The information of the CRS follows:]
Congressional Research Service,
Library of Congress,
April 28, 1999.
Re: Reports of flag burning/desecration in the U.S.
To: Senator John Chafee
Attn: Barbara Richle
From: Kathy Doddridge, Information Research Division
I have reviewed numerous articles on reports of flag burning/
desecration in the United States for the years 1995 to 1998.
The results of my research by year are: 1995--7; 1996--11; 1997--10
and; 1998--15.
The above statistics were gathered from newspaper, magazine and
wire service articles from the Nexis database (US) using the following
search terms and strategy: (American or U.S.) w/3 flag w/5 (burn! or
destroy! or desecrat!).
All Recorded Flag-Burning Incidents in the United States
january 1995--january 1999
1. March 11, 1995--Pennsylvania
Two boys, ages 15 and 16, burn a flag in a University of Pittsburgh
parking lot to protest government ``build[ing] arms and bombs and
kill[ing] lots of people.'' When arrested, the teens object, saying
their action is legal; they say they may call the ACLU.
2. April 6, 1995--Illinois
A 17-year-old boy in Berwyn burns a small flag at home and hangs
the remnants in his school locker to make a statement against slavery
and discrimination; his action initially provokes anger and outcry, but
leads to school-wide discussion of ethnic issues and the boy
apologizing.
3. June 8, 1995--Indiana
Vandals steal at least 20 flags from the Valhalla Memory Gardens in
Bloomington, and burn them behind the mausoleum.
4. July 4, 1995--Ohio
Two teenagers desecrated an American flag during the vandalization
of a neighbor's home. The flag was ripped down from the property and
torn.
5. July 5, 1995--Maine
State Police were looking for three juveniles believed to have
stolen and burned an American flag.
6. September 19, 1995--Oklahoma
A 17-year-old boy uses a flag to wipe oil from his car's dipstick.
7. October 22, 1995--Wisconsin
An American flag was burned in a first-floor room of an apartment
building causing damage to the building.
8. April 28, 1996--Arizona
A rally to protest the exhibition of an exhibit showing examples of
flag desecration is held. Included is an exhibit that invites visitors
to trample on a flag placed on the floor.
9. June 2, 1996 New York
Three teenagers faced charges stemming from a vandalism spree that
included using a lighter to burn American flags.
10. June 1996 Wisconsin
A 17-year-boy was accused of defecating on a flag and leaving it
on the steps of a golf course clubhouse ``to be noticed.'' [The
following March, a local judge held Wisconsin's flag desecration law to
be unconstitutional.]
11. June 4, 1996 Indiana
Members of the Black Panthers protested the death sentences of two
individuals at an Olympic torch celebration by attempting to burn an
American flag.
12. July 4, 1996 Indiana
A group of ten people burn a large flag and several smaller flags
outside an Indianapolis police station to protest the arrest of a Black
Panther leader and the treatment of black Americans in general. Police
are present but no arrests are made.
13. July 4,1996 Pennsylvania
Vandals damaged a number of areas around the Tobyhanna area.
Included in the vandalism was a small cemetery where several small
American flags were discovered burned.
14. July 19, 1996--Georgia
Several young men burn an American flag after an Atlanta rally on
state capitol steps in which another group of 75 protesters burned a
Georgia state flag.
15. July 20, 1996--California
A group of approximately 40 Latino activists marched outside of a
LAPD station and burned a small American flag to protest the shooting
of Jaime Jaurequi, a Resda resident.
16. August 27, 1996 Illinois
Members of a self-styled anarchist group may have burned a flag
during a demonstration and march to the Democratic Convention Hall, but
this report is never corroborated.
17. September 17 and 20, 1996 Tennessee
Two flags were burned at the flagpole of Collierville High School;
later, police found a partly-burned flag at Town Hall. Also, police
said four flags were stolen the previous week.
18. November 6, 1996 California
Marchers at San Diego State University burn flags at a
demonstration against Proposition 209; bystanders react angrily and a
scuffle breaks out.
19. January 11, 1997 Seattle
Four teenagers were arrested for burning a flag at a veterans'
memorial park; the charge was reckless activity.
20. Late January 1997 Maryland
Two young men broke into a middle school, disturbed property, and
burned several American flags on the roof.
21. February 1997 North Carolina
A 17-year-old high school student was arrested for a February
incident in which he used a knife to shred a flag used by the school
band.
22. May 24, 1997--Florida
A Vietnam veteran who had admonished neighborhood kids to put out a
flag for Memorial Day later found his flag in ashes on his lawn. He
believes the kids set the fire.
23. May 26, June 9-10, 1997--Wallingford, CT
Vandals set fire to flags four times over a 3-week period.
24. July 5, 1997 Massillon, OH
A 17-year-old girl set fire to a flag at midnight, after a July 4th
party.
25. September 1997, Lares, PR
Anti-statehood protestors burned an American flag during an annual
festival.
26. October 6, 1997 Sacramento, CA
Vandals burned, painted, and hung an American flag upside down
outside an apartment manager's office.
27. October 20, 1997 Neptune, NY
After burning the rope of a flagpole, someone stole the American
flag.
28. November 11, 1997 Bayamon, PR
A pro-independence separatist group burned 10 American flags at the
National Cemetery in the middle of the night before a Veterans Day
ceremony.
29. January 1, 1998 Fresno, CA
Members of a Hispanic political organization burned an American
flag outside City Hall to protect US arm sales to Mexico.
30. May 15, 1998--New York, NY
As part of a protest outside of NBC by about 75 Puerto Ricans who
were offended by a ``Seinfeld'' episode in which the character, Kramer,
accidentally burns a Puerto Rican flag, an American flag was burned.
31. May 23, 1998--Somers, CT
Town employees discovered that 14 flags and flagpoles that had been
put up for the Memorial Day celebration had been vandalized. The
flagpoles all had been bent and flags were stuffed in the toilet or
thrown on the roofs of portable restrooms. Other vandalism was done to
the park.
32. May 21, 1998 Tampa, FL
A 72-year old Hudson man reported that someone pulled down an
American flag from his property and burned it. He did not know who
burned the flag or why.
33. May 30, 1998 Florida
A man was flying an American flag with a motorcycle embossed on it
outside his home until police showed him an obscure 1919 state law that
forbids any image being placed on the flag.
34. July 6, 1998 Durham, NC
17 flags that were being collected by a former Navy Chaplain were
set ablaze by vandals. The Chaplain was collecting the flags in order
to properly retire them and sprinkle their ashes over the graves of
veterans.
35. August 7, 1998 Arlington, VA
2 American flags were burned on headstones in a cemetery.
36. Late August 1998 Dorado, PR
An American flag was burned during a pro-independence rally outside
the Southern Governors Association meeting.
37. September 1, 1998 Davenport, WA
A juvenile in Davenport was arrested for burning a stolen American
flag with a flare he had stolen from the patrol car of a Lincoln County
Deputy.
38. September 11, 1998--Boulder, CO
A late night arsonist climbed atop a park bench and lit the flag
afire that flies between the city hall and the public library.
39. September 17, 1998 Santa Fe, NM
3 drunken men were arrested outside of the Sweeney Convention
Center where a ``Fiesta Celebration'' was being held. The men claimed
to have found the flag. At the time of the arrest, one of the men told
police he had burned the flag to protest how the U.S. treats his
country. (His national origin was not reported.)
40. October 27, 1998 Sioux Falls, SD
When responding to a call about a loud noise, police in Sioux Falls
discovered that an 18 year old man, who appeared to be intoxicated, had
burned an American flag.
41. November 3, 1998 Hanover, PA
A 14 year-old boy was charged in York County Juvenile Court with
desecrating the flag after he and another boy, who was not charged,
were apprehended by police at the scene of a burning flag. The police
believe that the flag burning resulted from boredom and was not a
political statement.
42. November 13, 1998 High Point, NC
A flag was ripped from its flagpole and burned on the Dr. I.T. Mann
American Legion Post 87 in High Point. The flag had been flying at half
staff in recognition of a Legion member's death. Its tattered remains
were found on a picnic table near the Post's back door.
43. December 24, 1998 Sharon, MA
Two temples were damaged during services. Rocks were thrown through
the windows of both temples and a menorah was damaged at one. Police
found a flag burning on a tree near one of the temples shortly after
the vandalism occurred.
______
MEMORANDUM
April 28, 1999.
To: Senator Chafee
From: Bob Greenawalt
Re: Meeting with Senator Packwood
You are scheduled to meet with Senator Packwood today at 12:00. He
would like to discuss a change to the restrictions currently placed on
activities conducted by Real Estate Investment Trusts (REITS).
background
A real estate investment trust (``REIT'') is a corporation that
combines capital from many investors to acquire or provide financing
for all forms of real estate. A REIT is similar to a mutual fund in
that no corporate level tax is levied on the income earned by the REIT
as long as it is passed on to the investors.
REITs are restricted to investing in passive investments, primarily
real estate and securities. Specifically, a REIT must derive at least
95 percent of its income from real property rents or from securities.
Also, a REIT cannot own more than 10 percent of the voting stock of a
corporation and no more than 5 percent of the value of its assets be
stock of a single corporation.
problem
Some REITs are conducting active businesses through subsidiaries,
which would be impermissible if operated by the REIT directly. The
Administration is concerned that operating active businesses through
subsidiaries erodes the corporate income tax base. At the same time,
the Administration recognizes that many of these businesses are
legitimate outgrowths of a REIT's traditional operations. Thus, the
Administration has proposed (and Senator Packwood is supporting)
changes to the REIT rules to allow a small level of active business to
be conducted by REITs. Senator Packwood is meeting with you to ask for
your support of this legislation.
analysis
On balance, the Administration's proposal is a reasonable step. The
only question for you to decide is whether there is any reason for you
to lend your name to this effort. You have not been contacted by any
Rhode Islanders asking that you support this proposal.
Senator Chafee. Finally, Mr. Chairman, I don't believe we
can mandate respect and pride in the flag. In fact, in my view,
taking steps to require citizens to respect the flag sullies
its symbolism and significance; 99.9 percent of Americans
respect the flag, and I believe, Mr. Chairman, there is no need
for this amendment.
I want to thank you very much for the opportunity to
testify.
The Chairman. Thank you, John. We are glad to have you
here.
I might mention that when General Brady mentioned that when
he said hundreds, he said that a lot of them aren't reported,
and that was his additional explanation.
Let's now turn to Senator McCain. I gave you a better
introduction than I am giving you right now before you got
here. But let me just say this: There was a tremendous article
in the Investor's Business Daily a couple of days ago,
yesterday or the day before, about your service, and we are
just honored to have you here along with the others. So we will
turn the time to you.
STATEMENT OF HON. JOHN McCAIN, A U.S. SENATOR FROM THE STATE OF
ARIZONA
Senator McCain. I thank you very much, Mr. Chairman, and I
will be very brief. I am very honored to be on this panel with
some American heroes: John Chafee, who served in some of the
fiercest battles in World War II and who is a member of what is
now being called the ``greatest generation''; Chuck Hagel, who
served and was wounded in the Vietnam Conflict; and, of course,
my dear friend John Glenn. I often have described the fact that
the only difference between Senator Glenn and me is that he
used to, during the Korean War, shoot people down and I used to
get shot down. That is a minor distinction, of course. And
Senator Kerrey, who left part of himself and who served with
such honor on the battlefield of Vietnam. It is a great honor
for me to be in the company of some American heroes.
Mr. Chairman, I would ask that my prepared statement be
made a part of the record.
The Chairman. Without objection.
Senator McCain. And I would just like to illustrate my
feelings on this issue by telling a story that I have told
before, which is a very brief story. Mr. Chairman, it concerns
an incident that happened while I was in prison in Hanoi. For
years, the Vietnamese kept the American POW's in conditions of
solitary confinement or two or three to a cell. The purposes
were to break down organization, thereby reducing resistance
and enabling them better to achieve their goals.
After approximately 1971, the Vietnamese changed our
conditions from putting us in those conditions into large
groups of 25 or 30 prisoners in each cell. One of the prisoners
who moved into the cell with me was a young man by the name of
Mike Christian. He was from a small town near Selma, AL, came
from a very poor family. He did not wear a pair of shoes until
he was in his teens. He enlisted in the U.S. Navy when he was
17, later he went to officers' candidate school, and went to
pilot training and became a bombardier navigator on an A-6
airplane. Mike Christian had a keen appreciation for the
opportunities that the military provides us.
The uniform that we wore in prison was a blue shirt and
trousers, sandals made out of automobile tires. I strongly
recommend them. The same pair lasted me for 5\1/2\ years.
As part of the change in treatment, the Vietnamese allowed
us some articles and packages from home. In those packages were
small articles of clothing such as handkerchiefs and scarves.
Mike Christian fashioned himself a bamboo needle and over a
period of several months sewed on the inside of his blue shirt,
with a piece of white cloth and a piece of red cloth, the
American flag.
Every evening before we would have our bowl of soup in our
cell with about 25 people in it, we would put Mike Christian's
shirt on the wall of our cell and say the Pledge of Allegiance.
Mr. Chairman, I will freely admit that saying the Pledge of
Allegiance to the flag, as happens in many of the events we
attend, is not the most important part of those events. In
those conditions, being able to pledge allegiance to our flag
and our country was a very important part of our day.
One day the Vietnamese came into our cell, searched the
cell, and in the course of their search found Mike Christian's
shirt with the flag sewn inside of it. They removed it. That
evening they came back and opened the door of the cell and
called for him to come out, and then closed the door of the
cell and beat him rather severely for the next several hours,
at the completion of which they threw him back inside the cell.
The cell in which we lived had a concrete slab in the
center on which we slept and bare light bulbs in all four
corners of the room. We cleaned up Mike Christian as well as we
could, and as you can imagine, he wasn't in great shape. And I
went over to lie down on the concrete on which we slept, and I
happened to look over in the corner of the cell, and Mike
Christian was sitting under the light bulb with a piece of
white cloth and a piece of red cloth and another shirt, sewing
another American flag. He wasn't doing that because it made him
feel better. He was doing it because he realized how important
it was for us to be able to pledge our allegiance to our flag
and our Nation and how important it was to our morale.
All of us are products of our experiences in life, Mr.
Chairman, and that is my experience, and that is my view about
the sanctity of the American flag and the way that it should be
treated. I don't intend to engage in any constitutional
arguments. I just feel very strongly that American blood has
been shed all over the world with the flag as its symbol, and I
believe that it deserves the reverence and respect as a symbol
not only of freedom and democracy, but of a great deal of
sacrifice.
I thank you very much, Mr. Chairman, for allowing me to
appear.
The Chairman. Thank you, Senator McCain. We know you have
to get back to the floor. We really appreciate you taking the
time to be with us today.
Senator McCain. Thank you, Mr. Chairman.
The Chairman. Thank you for being here.
Senator Glenn, we will turn to you.
STATEMENT OF HON. JOHN GLENN, FORMER U.S. SENATOR FROM THE
STATE OF OHIO
Senator Glenn. Thank you very much, Mr. Chairman, and I
would ask that the longer statement be included in the record.
The Chairman. Without objection.
Senator Glenn. I will try and summarize here.
I am honored to be here today. This is my first return to
Capitol Hill since I left here in January at the end of my last
term, so I am honored particularly to be here with the
associates at the table this morning.
I don't know of any group of people you could put together
here that have demonstrated more their devotion to this country
and to the flag and everything that it stands for than this
group.
I was sitting here thinking, as John McCain was just
speaking, about being on a trip with him to Vietnam, and he had
asked to go back and see his old cell up there, and they would
never let him in. And one day we were in one of the meetings,
and they came in and said he could go back up. And he asked me
to go with him, and I did. And he and Pete Peterson, who is now
our Ambassador out there, went and they had a little trouble
finding the place, and he finally found the old cell. And it
was one of my very most memorable experiences on any trip I
made out of the Senate of all the time I was here in those 24
years.
Nothing is any more abhorrent to any of us than disrespect
for the flag. We all love the flag, and we are dedicated to it
and what it stands for. And we have had past experiences as
demonstrated by the people that have been here so far this
morning that indicate how we feel about that flag and about
dedication to this country.
But, to me, it would indeed be hollow victory to protect
the symbol by taking any chance at chipping away at the
freedoms themselves. Now, maybe that is why the first item in
the Bill of Rights, the first amendment to our Constitution,
has never been changed or altered, even a single time, in all
of American history. It wasn't changed during the Civil War. It
wasn't changed during any of our foreign wars, World War I or
World War II, or Korea or Vietnam, any other, and not during
recessions, depressions, scares or panics. And even during
times of great emotion and anger, like the Vietnam era, when
flags were burned or desecrated far more often than they are
today, our first amendment remained unchanged and unchallenged.
And yet now sometimes we are told that unless we alter the
first amendment, unless we place a constitutional limit on the
right of speech and expression--and they go together, speech
and expression--that somehow the fabric of our country will
somehow be weakened. And I just don't believe that.
There is only one way to weaken the fabric of our country,
and it is not through a few misguided souls burning our flag.
It is by retreating from the principles that the flag stands
for. And that will do more damage to the fabric of our Nation
than 1,000 torched flags could ever do.
The first amendment says simply and clearly that Congress
shall make no law abridging the freedom of speech, and that has
been interpreted to include expression repeatedly by the
courts.
For 200 years, in good times and bad, in times of harmony,
in times of strife, we have held those words to mean exactly
what they say, that Congress shall make no law abridging the
freedom of speech. And yet now ostensibly to prohibit something
that rarely happens anyway, we are asked to alter those first
amendment words to mean that Congress may make some laws
restricting freedom of expression. This time those laws would
be about flag burning. But what will the next form of political
expression be that we seek to prohibit? For once we begin to
slide down the slippery slope of restricting freedom of speech,
it is impossible to know where that slide will end.
Now, let me say just a few words about the practical
problems as I see it here. If this would pass, if the President
would sign it and it becomes law, one of the practical problems
about enforcing it--and that has been mentioned. John Chafee
mentioned a little bit about that a moment ago. If Congress and
the States are allowed to prohibit physical desecration of the
flag, how are we going to define that? How are we going to
administer that? Do we have a definition here of what a flag
is? Is it only manufactured flags of cloth or nylon, like we
fly over the Capitol here and send out to people? Do they have
to be a certain size or description? Does it refer to the small
paper flags we stick in cupcakes at political rallies that wind
up on the floor or in the garbage? Is that desecration?
How about homemade flags? How about crayon-made flags by a
child or something like that? Is that a legal flag to be
protected by other people? If I take a crayon flag from a kid
and I say I am going to burn this, is that desecration?
I don't know that we have considered all these things. What
size should those crayon flags be, incidentally? Or how do we
know what is prosecutable and what is not under this?
Let me take this even further, and I don't want to be
disrespectful in any way, shape, or form, but in Chicago, I was
in a shop that specializes in just flags and flag paraphernalia
when we were out there at the convention some years ago. And I
went in because I was curious about what they had, and I was
surprised at some of the things I found. What I found were flag
bikinis; I also found boxer shorts. I found not only boxer
shorts but other shorts. Are people to wear the flag as
underwear? If they soil it, is that desecration? Can the police
arrest you if you are wearing a flag in that way? I think we
ought to consider these things.
I saw a person working under a car with a flag T-shirt on,
lying on his back, grease all over, dirt, sweaty. Is that
desecration of the flag that he was wearing? I don't know. I
think we have to consider things like this, though, if we are
going to contemplate making this the law of the land.
Or if you see a person jogging down the street with a flag
T-shirt which becomes drenched with sweat. You can't imagine
what it smells like if you sidle up to that person. But I don't
like that one bit. I have never worn things that had flags like
that on them that were mainly a piece of clothing.
Or how about a bumper sticker covered with dust that is a
flag? Is that desecration? I think these are things that would
have to be thought through. Maybe this is taking it to too much
of an extreme. And there could be more examples made, of
course.
But about the person who has an old tattered flag and says
he is burning it for two reasons: first, I am going to dispose
of it, as we are supposed to dispose of it, by burning it; and,
second, I just want everybody to know I protest the tax policy
in this country, and I am burning it partly because of that.
Now, since burning flags is an officially approved and
sanctioned means of flag disposal, will that mean that just
half this person's action would be legal? How would a court or
jury assign penalty in such a case?
You can say, well, intent is the criteria. Well, is intent
that he was made when he burned it? Or was he friendly, was he
smiling when he burned it? Plus the lawyers up here can tell me
chapter and verse about how tough it is to prove intent in
court. I have heard in the past that is one of the most very
difficult things to take to court and prove, is intent.
I think we know the reason this is up again, and it is
because many organizations, most of which I am a member of and
a proud member of--and I think the veterans' organizations have
done a tremendous job. As Senator Kerrey said a few moments
ago, they have done a tremendous job for this country through
the years, going way back. And I am a member of most of those
organizations, and I have had the heads of the organizations
visit me in my office. And I have posed some questions to them,
but I believe the reason this is up again is pressure from some
organizations that decided what they wanted many years ago, and
they didn't really think through completely what this action
would do and are not willing to see that the right--the right
that we are talking about here--and not just the symbol, is the
main thing to be protected.
I have tried to discuss this in my office, and we just came
to disagreement on that particular item. But this amendment for
the very first time in American history would actually change
the right because of some action we don't like against the
symbol, dear as that symbol is--dear as that symbol is. And I
think history and future generations will judge us harshly, as
they should, if we permit those who would defile our flag to
hoodwink us into also defiling our Constitution.
As has been said this morning, there are laws that cover
this kind of thing, and I would hopefully have the toughest
kind of arrests and prosecutions of anybody under existing law.
But to change our Constitution and diminish the rights that it
protects is just not to me the way to go.
As Senator Chafee said a moment ago, how many have been
burned, anyway? Is this really a solution looking for a
problem? We don't really have any major problem. I don't know
that I have ever seen a person burn a flag. It is abhorrent to
me, as it is to everybody else. But I don't think we need to
let the passions of the moment stampede us into abandoning
principles in this issue.
It was once said on another occasion and in another context
that what we need now in the Senate and in the Congress is less
profile and more courage. If America is truly going to continue
to be the land of the free, I think all of us must prove it is
still the home of the brave, no matter how much the pressure is
and no matter what the threats.
Thank you.
The Chairman. Thank you, Senator Glenn.
[The prepared statement of Senator Glenn follows:]
Prepared Statement of Hon. John Glenn
a constitutional amendment on flag desecration
Thank you Mr. Chairman, Senator Leahy, and the distinguished
members of the Committee. It is an honor to be here in my first
appearance before the Senate since my retirement earlier this year. I
certainly miss the opportunity to discuss and debate the great issues
of the day with my friends and colleagues here but I am happy to leave
the hectic schedule and heavy workload to you.
It is also a great privilege to appear today in the company of
these most distinguished, much honored and highly decorated men. Our
country is fortunate to have had these men in times of war and peace. I
am proud to know them as friends.
As a former member of the Senate Armed Services Committee I worked
very hard to protect the security interests of the nation and to
protect the interests of those who serve in our armed forces. I want to
extend to the men and women serving in the Balkans my heartfelt support
and my prayer that peace will come soon.
The Committee has before it today for consideration the question of
a constitutional amendment to permit Congress to enact legislation
prohibiting the physical desecration of the American flag.
Like most Americans, I have very, very strong feelings about our
flag. Like most Americans I have a gut reaction in opposition to anyone
who would dare to demean, deface, or desecrate the flag of the United
States. But also like most Americans I am concerned about any effort to
amend the Constitution and the Bill of Rights.
I have watched as those who expressed qualms or doubts or
reservation about this amendment have run the risk of being smeared, of
being labeled as unpatriotic or a friend of flag burners. And I can
assure you that I am neither. We feel uncomfortable sometimes talking
about what involves such private and personal emotions. We do not wear
those feelings on our sleeves about how we feel about the flag and
about patriotism. We do not parade around those things that are near
sacred to us. And trying to put those feelings into words only proves
the inadequacies of language.
We all love the flag and no one more than I do. I fought hard for
this flag through two wars and representing the country in the space
program. I am both honored and proud that few people in this nation
have been able to take our flag where I took it. The first thing I
selected to take on my trips to space was a flag. I took along little
silk flags so I could give them to my children, and they remain among
my children's most cherished possessions to this day.
For those who served in the armed services, we risked our lives
because we believed it was our duty to defend our nation. I can tell
you that in combat you do not start out thinking about the philosophy
of our nation. When you start a run on a ground position from the air,
through antiaircraft, or lead a patrol where people are getting shot,
you do not think about those philosophical thoughts. It is the survival
of the moment that holds your attention. Only later do you think about
some of these great philosophical thoughts.
But every last tiny fiber in our flag stands for someone who has
given his or her life to defend what it stands for. Many of us here
have as many friends in Arlington Cemetery, bearing silent witness to
our flag, as we do bearing public witness to it in the world of the
living. Maybe that is why I have so little patience, and even less
sympathy, for those pathetic and insensitive few who would demean and
defile our nation's greatest symbol of sacrifice. They deserve harsh
censure.
But, in what I view as their demented ways, they also have my pity
because they cannot, apparently, feel the pride and the exhilaration
that comes from being called to a purpose larger than ones own self.
They cannot feel the pride in our nation and what it stands for, even
though not perfect as yet; the pride in a nation whose very strength
rests in a guarantee of freedom of expression for every single person,
whether that person agrees with the majority, or not. It is a guarantee
that some misguided souls exploit for their own egotistical, self-
centered purposes.
I believe that the members of this committee have a special
responsibility to recognize that it would be a hollow victory indeed if
we preserved the symbol of our freedoms by chipping away at those
fundamental freedoms themselves. Let the flag fully represent all the
freedoms spelled out in the Bill of Rights, not a partial, watered-down
version that has altered its protections.
The flag is the nation's most powerful and emotional symbol. It is
our most sacred symbol. And it is our most revered symbol. But it is a
symbol. It symbolizes the freedoms that we have in this country, but it
is not the freedoms themselves. That is why this debate is not between
those who love the flag on the one hand and those who do not on the
other. No matter how often some try to indicate otherwise, everyone on
both sides of this debate loves and respects the flag. The question is,
how best to honor it and at the same time not take a chance of defiling
what it represents.
Those who have made the ultimate sacrifice, who died following that
banner, did not give up their lives for a red, white and blue piece of
cloth. They died because they went into harm's way, representing this
country and because of their allegiance to the values, the rights and
principles represented by that flag and to the Republic for which it
stands.
Without a doubt, the most important of those values, rights and
principles is individual liberty: The liberty to worship, to think, to
express ourselves freely, openly and completely, no matter how out of
step those views may be with the opinions of the majority. In that
first amendment to the Constitution we talk about freedom of speech, of
religion, of the press and right to assemble.
The Bill of Rights was not included in the Constitution. The Bill
of Rights was added after the Constitution was passed. Some states
refused to ratify the Constitution because it did not have a Bill of
Rights defining basic human rights that they wanted this country to
stand for. James Madison worked to get a Bill of Rights put together
while the Constitution was already in existence.
The Congress passed the first 10 amendments known today as the Bill
of Rights. Freedom of speech, freedom of religion, freedom of the
press, and freedom of assembly are protected in the first amendment.
That commitment to freedom is encapsulated and encoded in our Bill
of Rights, perhaps the most envied and imitated document anywhere in
this world. The Bill of Rights is what makes our country unique. It is
what has made us a shining beacon of hope, liberty, of inspiration to
oppressed peoples around the world for over 200 years.
In short, it is what makes America, America. Those 10 amendments to
the Constitution we call the Bill of Rights have never been changed or
altered by one iota, by one word, not a single time in all of American
history. That is how our forefathers have looked at the Bill of Rights.
There was not a single word of change in that Bill of Rights during the
Civil War. There was not a single change during any of our foreign
wars, and not during recessions or depressions or panics. Not a single
change when we were going through great national times of trials and
tribulations and times of great emotion and anger like the Vietnam era,
when flag after flag was burned or desecrated, far more often than they
are today. Even during all that time, our first amendment remained
unchanged and unchallenged.
The amendment under consideration today goes directly to the issue
of freedom of speech. We are talking about freedom of expression. The
Supreme Court has held on two separate occasions that no matter how
great the majority, the minority, under our Bill of Rights, has the
right of expression. That expression is protected by freedom of speech.
Do we want to take a chance on reducing our freedom of speech? What
about freedom of the press? Do we want to open even a tiny chance to
restrict our ability to assemble peaceably? And do we want to take a
chance that we would not be able to petition our government for redress
of grievances? Those are the things that are covered in that first
amendment, known as the Bill of Rights.
I think there is only one way to weaken the fabric of our country,
our unique country, our country that stands as a beacon before other
nations around this would and that is to allow the few misguided souls
to lessen the freedom that we all share.
One of the most exhilarating things that can ever happen to a man
or woman is to be able to represent their country and be called to
something, to a purpose larger than themselves.
I feel sorry for people who have never had that experience. It is
something you cannot really explain.
Of course some may argue that the first amendment is not and has
never been absolute, that we already have restrictions on freedoms of
expression and that a prohibition on flag burning would simply be one
more? After all, it is said that freedom of speech does not extend to
slander, libel, revealing military secrets or yelling `fire' in a
crowded theater. That is true. To the extent that flag burning would
incite others to violence in response does not constitute a clear and
present danger, and that is what the Supreme Court. The difference here
is whether it is a clear and present danger that we have every right to
try to avert.
I believe that this argument misses a key distinction, and that
distinction is that all those restrictions on free speech I just
mentioned threaten real and specific harm to other people, harm that
would come about because of what the speaker said, not because of what
listeners did.
To say that we should restrict speech or expression that would
outrage a majority of listeners or move them to violence is to say that
we will tolerate only those kinds of expression that the majority
agrees with, or at least does not disagree with too much. That would do
nothing less than gut the first amendment.
What about the argument that flag desecration is an act and is not
a form of speech or expression that is protected by the first
amendment? Well, I think that argument is a bit specious. Anybody
burning a flag in protest is clearly saying something. They are making
a statement by their body language, and what they are doing makes a
statement that maybe speaks far, far louder than the words they may be
willing to utter on such an occasion.
They are saying something, just the same way as people who picket,
or march in protest, or use other forms of symbolic speech expressing
themselves. Indeed, if we did not view flag burners as something we
find offensive and repugnant, we surely would not be debating their
right to do so.
Let me say a word about something that has gotten short shrift in
this debate, something we should consider very carefully. I am talking
about the practical problems with this amendment. Let us say we pass
it, the States pass it, it becomes an amendment, and we change the
Constitution. Then what a nightmare we would have enforcing it.
If Congress and States are allowed to prohibit the physical
desecration of the flag, how precisely are we defining the flag? We do
not have an official flag, as such, with an exact size, type, kind of
ink, dyes, or fabric. There is no official flag, as such. So does this
amendment refer to only manufactured flags of cloth or nylon of a
certain size or description, such as the ones we fly over the Capitol?
Does it refer to the small paper flags on a stick we hand out to
children at political rallies or stick in a cupcake at a banquet? Those
flags are often tossed on the floor or in a garbage can at conclusion
of an event. How about during the 1976 bicentennial when vendors were
selling flag bikini swimsuits for women and boxer shorts for men.
Remember that the proper way to destroy a flag that is old or has
become soiled is to burn it. But what if you do it in protest? What was
the intent? Every lawyer will tell you that the toughest thing to prove
is intent.
I do not know what the courts would do in a case like that. We can
go on with all kinds of examples here of how this would be very
difficult to administer, and it would be subject to 50 different
interpretations. I might be able to do something in Ohio, and I drive
across the Ohio River to Kentucky, West Virginia, or Pennsylvania and
the same thing might be illegal.
This amendment should be defeated. The dangers from it far outweigh
the threat that we have to the flag. I simply do not believe that this
is a major problem for this county requiring an amendment to the
Constitution of the United States of America.
Our most revered symbol stands for freedom but is not freedom
itself. We must not let those who revile our way of life trick us into
diminishing our great gift or even take a chance of diminishing our
freedoms.
The Chairman. We will finish our senatorial panel with
Senator Cleland, the prime cosponsor of the amendment.
I gave you a better introduction before.
Senator Leahy. No, he didn't, Max. He said you weren't
coming. No, he didn't. He gave you a very good introduction.
STATEMENT OF HON. MAX CLELAND, A U.S. SENATOR FROM THE STATE OF
GEORGIA
Senator Cleland. Thank you very much, Mr. Chairman. Like
many Americans, I was troubled when the Supreme Court ruled in
two cases, Texas v. Johnson and United States v. Eichman, that
statutes protecting the U.S. flag were unconstitutional
violations of the first amendment right to free speech.
I respect the wisdom of the Justices of the Supreme Court.
Yet, I was saddened that we were no longer able to rely upon
statutory authority to protect the flag. I was especially
saddened by the views expressed by such distinguished past and
present Supreme Court Justices as Justices Harlan, Warren,
Fortas, Black, White, Rehnquist, Blackmun, Stevens and
O'Connor. These Justices have each supported the view that
nothing in the Constitution prohibits the States or the Federal
Government from protecting the flag. Nonetheless, the current
Supreme Court view stands. That is what brings us here today.
The flag is not merely a symbol; it is not just a symbol of
America. It is in many ways what we stand for; it is what we
believe in. It is sacred. I don't have to tell the Senate what
the flag means. Just ask the soldier who proudly marches behind
the flag what it means to salute the flag. Ask the newly-sworn
citizen what it means to claim the flag. Ask the grieving widow
or the mother of a slain soldier who is presented with the flag
that drapes the soldier's casket.
I like the Civil War, I like to study it, I like to read
about it. It is interesting that literally hundreds of
citations were given to men in battle during the Civil War for
acts of valor associated with the flag. Soldiers were routinely
awarded the Medal of Honor, America's highest military award,
for defending the flag and carrying it forward in battle. Many
of these were awarded posthumously.
Everywhere history has been made in this country, the flag
has been present. It was the U.S. flag that inspired our
National Anthem. It was an American flag that was raised when
Jesse Owens stunned Nazi Germany. It was a U.S. flag that was
hoisted in Iwo Jima.
Those who would desecrate the flag, I think, would
desecrate our country. Therefore, I favor a constitutional
amendment. The amendment is simple. It simply vests Congress
with the authority to protect the flag through statute. We need
not fear that the States will create a hodge-podge of flag
protection statutes. Instead, under our amendment, Congress can
create one uniform statute for the country.
I understand the concerns that have been expressed about
the amendment's potential impact on the first amendment. I
certainly understand that and respect those views. But I
believe that an amendment to physically protect the flag is an
acceptable limitation in order to protect the most sacred of
American symbols. I don't think it will do anything to prohibit
any individual from exercising their rights.
The flag is sacred. It is the one unifying symbol that the
vast diversity of this great country has, no matter one's age,
religion, culture, or gender. Those who would desecrate the
flag, I think, would desecrate America and our freedoms.
The Supreme Court decision in Texas v. Johnson, in effect,
invalidated the laws in 48 States and the District of Columbia
that prohibited flag desecration. Since the Supreme Court's
decision, 49 State legislatures have adopted resolutions asking
Congress to send the flag protection amendment to the States.
Supreme Court Justice Stevens said in his dissent from
Texas v. Johnson:
The freedom and ideals of liberty, equality and
tolerance that the flag symbolizes and embodies have
motivated our Nation's leaders, soldiers and activists
to pledge their lives, liberty and honor in defense of
their country. Because our history has demonstrated
that these values and ideals are worth fighting for,
the flag which uniquely symbolizes their power is
itself worthy of protection from physical desecration.
These are powerful, wise words, Mr. Chairman, words we should
all heed.
Thank you very much.
The Chairman. Thank you, Senator Cleland. We really
appreciate this panel and appreciate all of you taking time to
be with us today. Thanks, John, for coming back and we
appreciate having your point of view.
I will put into the record 74 incidents, some of which
burned numerous flags and multiple flags, since March 24, 1994,
incidents with which we are finding fault.
[The document referred to follows:]
Flag Desecration Acts
March 21, 1994--Cleveland, OH: an American Flag was burned during a
news conference in front of police headquarters. This incident was in
response to the news that the U.S. Supreme Court let stand an Ohio
Supreme Court ruling overturning the earlier conviction of a member of
the Revolutionary Communist Party who burned a flag in protest against
the Persian Gulf War.
September 7, 1994 Lincoln, NE: one death penalty opponent burned an
American Flag outside of the penitentiary where Harold Lamont ``Walkin'
Willie'' Otey was executed. A crowd of approximately 1,000 had gathered
to express either support or opposition to the death penalty.
November 2, 1994--San Marcos, CA: an American Flag was burned
during a demonstration against Proposition 187. When another flag was
doused with lighter fluid, a student snatched it away to prevent the
desecration. He was beaten by protesters as a result of his actions.
11/3/94 The San Diego Tribune, San Diego, CA.
January 10, 1995--Honolulu, HI: two American Flags were burned by
native Hawaiian protesters who maintained that the Kingdom of Hawaii is
still sovereign. The activists said the purpose of their actions was to
make a ``complete show of sovereignty.''
February 27, 1995--Twentynine Palms, CA: the charred remnants of an
American Flag was discovered. The flag had flown over the Civic Center
Professional Building near the city hall.
March 11, 1995--Pittsburgh, PA: two high school students burned an
American Flag to protest the fact that the government ``builds arms and
bombs and kills lots of people.'' Both students indicated they had
burned flags in the past as a form of protest.
April, 1995--Berwin, IL: a high school student burned an American
Flag at his home and brought the remnants to school where he displayed
them in his locker. The student purported to make a symbolic statement
against slavery, Japanese interment during World War II and other forms
of discrimination.
June 8, 1995--Bloomington, IN: twenty flags were taken from poles
and burned at the Valhalla Memory Gardens cemetery. The flags had been
donated by the families of veterans buried at the cemetery, and were
usually displayed between Memorial Day and Flag Day every year.
June 21, 1995--Hays, KS: the flag at city hall was taken down by an
unknown individual and burned on the city hall steps with a Graham
Greene novel.
July 9, 1995--Geneva, OH: the flag outside of an American Legion
post was taken down and burned in front of a church a few blocks away.
Several smaller flags were burned and torn at the site, as well.
July 24, 1995--Hampton, NH: more than a dozen flags were stolen
from public buildings in the three seacoast towns. One flag was left at
a police station with obscene messages about President Clinton and U.S.
House Speaker Newt Gingrich.
September 16, 1995-- Moore, OK: A Moore teen-ager was arrested for
raising his car hood at a convenience store, then retrieved a full-size
U.S. Flag from inside the vehicle, and then used the flag to wipe oil
from his car's dipstick. He will not be prosecuted. 9/23/98, The
Saturday Oklahoman, Oklahoma City, OK.
March 8, 1996--Denver, CO: the American Flag was trampled by
students in protest of racism towards Hispanics outside of Kennedy High
School in Denver.
March-June, 1996--Phoenix, AZ: ``Old Glory: The American Flag in
Contemporary Art,'' an exhibit at the Phoenix Art Museum, featured the
following art works: the American flag stuffed in a toilet by Kate
Millet: a headless crucifix with the American Flag in the background by
Hans Burkhardt; an American Flag made out of human hair and skin by
Andrew Krasnow; a man dressed in Ku Klux Klan garb holding a baby
painted onto an American Flag by Ronnie Cutrone; an American Flag laid
out on the floor in order for people to trample on it by Dread Scott;
and an American Flag with a lighter on top with a description that
reads, ``Now more fun than ever'' by Erika Rothenburg. The exhibit
sparked national controversy, including a demonstration by thousands
demanding the exhibit's removal. 6/14/96, The Phoenix Gazette, Phoenix,
AZ.
April 20, 1996--Evanston, IL: the American Flag outside the home of
96-year old Richard Guess was burned by an unknown individual. Mr.
Guess, a retired policeman, has flown a flag outside his home for the
past 70 years. 4/21/96, Lake Forester, Lake Forest, IL.
April 22, 1996--Dacono, CO: a twenty-foot by thirty-foot flag
belonging to the city of Dacono was stolen in broad daylight from the
town's 160-foot water tower. The flag is the largest municipal flag in
Colorado.
May 25, 1996--Fitchburg, MA: flags and white crosses placed by
AMVETS Post 29 in Monument Park were destroyed during the night. The
flags and crosses were among 116 that had been placed in the two days
before the Memorial Day weekend to honor fallen comrades.
May 26, 1996--Orange, MA: fourteen American Flags were burned under
cover of night at Central Cemetery.
May 27, 1996--Wahpeton, ND: about 20 U.S. Flags were torn down
poles along main street in the late evening/early morning hours. The 3-
by-6 foot flags are put up every year for Memorial Day by the city's
Fire Department.
May 27, 1996--Grand Forks, ND: flags decorating veterans' graves
were stolen from cemeteries in the city. Some were later found in a
dumpster at a local school.
May 28, 1996--Greenville, OH: a half-dozen American Flags were
either destroyed or stolen over Memorial Day weekend. The flags had
been put up along Broadway in downtown Greenville by local American
Legion and Veterans of Foreign Wars posts.
May-June, 1996--Morrefield, WV: more than a dozen flags were cut up
by vandals during Memorial Day weekend, and again on Flag Day, June 14.
June 1, 1996--Worcester, MA: an unidentified individual dragged the
American Flag on the ground from his bicycle as part of a gay pride
parade.
June 5, 1996--Indianapolis, IN: Mmoja Ajabu, a former Black Panther
militia leader, and two militia members set fire to an American Flag as
the Olympic torch relay wound through the city. The flag was burned in
protest of the Indiana Parole Board's vote earlier in the day
recommending that Gov. Bayh deny a reprieve to Tommie Smith, a death-
row inmate convicted in the 1980 shooting death of an Indianapolis
police officer.
June 6, 1996--Jessup, PA: the flag which formerly covered the
casket of a World War II hero was taken from a pole and burned at Holy
Ghost Cemetery. The flag had been a gift of the family of the late PFC
John Vervan to the Michael Steiner American Legion Post in Jessup. PFC
Vervan had received the Bronze Star for valor at Saipan, Marianas
Islands, June 15-July 9, 1944.
June 11, 1996--Santa Cruz, CA: in a protest over his benefits,
Raymond Peterson set fire to an American Flag at a Social Security
office. Peterson, who had been seeking to have his Social Security
checks mailed directly to him instead of a guardian, also chained shut
the door of the office.
June 16, 1996--Birmingham, AL: an American Flag was burned by an
audience member during a performance by the ``Kevorkian Skull Poets,''
at the City Stages Festival.
June 28, 1996--La Paz, IN: flags flown outside of the local
American Legion Post were cut down and shredded by an unknown party.
July 1, 1996--Chicago Heights, IL: a burning American Flag was
discovered by police along with a burning cross in the park Forest area
of Chicago Heights.
July 3, 1996--Coolbaugh Township, PA: several American Flags were
burned in a small cemetery in the Tobyhanna area during the night. The
area has also suffered from recent Bible burnings and vandalism of
religious objects.
July 4, 1996--Indianapolis, IN: protesters burned an American Flag
in front of a police station to protest the recent arrest of former
Black Panther militia leader Mmoja Ajabu and the treatment of blacks in
the United States. As police, the public and news reporters looked on,
the group's unidentified spokesman said the flag would be burned ``to
preserve the ideals that this country was founded on.''
July 4, 1996--Galesburg, IL: two men in their mid-twenties burned
an American Flag in the middle of a street in the early evening. The
men claimed they were burning the flag as their way of showing
patriotism on Independence Day.
July 7, 1996--Holland, MI: five flags were stolen from downtown
Holland during the course of the Independence Day holiday weekend. Two
of the flags were ripped away, leaving shreds of the flags still
hanging from the poles. The other three flags were stolen along with
their poles.
July 8, 1996--Troy, MI: a flag thief has struck several times in
suburban Detroit neighborhoods--his latest round included eight flags
stolen from four locations. Flags have also been stolen and desecrated
in Sterling Heights, Shelby Township and Auburn Hills, and police
believe it is the work of the same individual, who has identified
himself in writings left behind as the ``Motor City Magic Man.'' Some
of the flags have been recovered with a black ``X'' written across
them.
July 14, 1996--Fajardo, Puerto Rico: onlookers cheered as an
American Flag was burned at an Independence Day Rally for Puerto Rico.
The rally drew tens of thousands of demonstrators, according to
newspaper accounts. 7/15/96, Southern Illinoisan, Carbondale, IL.
July 19, 1996--Atlanta, GA: a group of young people burned an
American Flag on the steps of the Georgia Capitol, although press
reports were not clear as to what the group was protesting. A banner
with the group read: ``Food Not Bombs.''
August 3, 1996--Oak Lawn, IL: an American Flag was removed from the
front of a home on West Shore Drive and set on fire on top of a car
there, destroying the flag and damaging the car.
August 14, 1996--Bunker Hill, MA: Unknown persons tore down on the
American Flag, breaking the upper pulley at the Bunker Hill American
Legion Post, threw the flag down on the ground in the parking lot, and
then spun their wheels, throwing rocks over the flag.
August 27, 1996--Chicago, IL: a flag was burned as part of a large
protest a block away from the Democratic National Convention. The
protest of the ``Not on the Guest List Coalition'' drew about 1,000
participants and snarled traffic near the United Center, causing many
convention attendees to miss some of the evening's activities.
September 6-7, 1996--St. Maries, ID: unknown individuals burned
U.S. Flags flying outside of homes on successive nights. One home
nearly caught fire as a result of the incident, while the family inside
slept.
September 20, 1996--Appleton, WI: local youths have admitted
stealing, burning and defecating on American flags in a series of more
than 20 incidents in the Appleton area. One flag had been left with a
note: ``The Anarchist Platoon has invaded Appleton, and as long as you
put flags up, were (sic) going to burn them.'' Press accounts report
that the youths attribute their attitudes toward the flag to
``listening to punk music.''
September 23, 1996--Lares, Puerto Rico: demonstrators set a U.S.
Flag on fire during the Grito de Lares celebration to mark the
anniversary of a failed 1868 revolt against Spain and to affirm their
desire for independence from the United States.
October 7, 1996--Fort Smith, AR: a flag bearing a swastika and the
word ``abortion'' was displayed hanging upside down outside a house
here. The home's owner said he had displayed the upside-down flag as a
statement protesting the failure to overturn President Clinton's veto
of a bill that would have outlawed partial-birth abortions.
January, 1996--Lansing, MI: as evidenced by WILX-TV, Channel 10,
the NBC affiliate in Lansing, in the rotunda of the State Capitol, a
young Michigan man wiped his rear end with the American Flag at the
Governor's State of the State Address. The event was taped as the crowd
chanted, ``What do we want? Revolution. When do we want it? Now!''
Police stood by and watched--the courts say it's ``free speech.''
March 19, 1997--Greensboro, NC: a 17-year-old high school student
was charged with desecration of a flag, along with drug and drug
paraphernalia possession, injury to personal property and having a
weapon on school grounds. The weapon charge relates to the knife
officials said he used to shred the American Flag utilized by the
school band. The school official thought it was ``just vandalism.'' The
teen was released from the Guilford County Detention Center on a $300
bond that same day. 3/19/97, Greensboro New & Record, Greensboro, NC
March 28, 1997--Indianapolis, IN: During the college basketball
Final Four playoff opening ceremony at the Pan Am Plaza, Mmoja Ajabu,
the former Black Panther leader, began talking into a megaphone about
``the system'' being unfair. Reporters and news photographers witnessed
Ajabu cutting up an American Flag with a pair of scissors. An onlooker
who was having none of it approached Ajabu and wrestled the flag from
him. The police closed in and removed Ajabu from the plaza. The flag
disappeared along with its new owner. 3/29/97, The Indianapolis Star,
Indianapolis, IN.
April 1, 1997--Buffalo, NY: Hours after winning a LaCrosse playoff-
clinching game the previous Saturday night, the starting goalie and
another man climbed over a fence at the Buffalo and Erie County Naval &
Military Park, grabbed the U.S. flag, threw it to the ground and
snapped the flagpole in two. Both men were charged with criminal
trespassing and criminal mischief, which are misdemeanors. The goalie
is a Canadian citizen who plays for the Buffalo Bandits on a visa. It
is not known whether the arrest would jeopardize the visa. 4/1/97,
Buffalo News, Buffalo, NY.
April 21, 1997--Honolulu, HI: Vandals desecrated The National
Memorial Cemetery of the Pacific with dark red graffiti, spraying angry
messages over memorial walls, flower vases and part of a U.S. flag. One
wall bears the message, ``H.P.D. ignores hate crime. Ignore this'', an
apparent reference to the Honolulu Police Department. Next to the wall
was a furled American flag which was also marked with lines of red
paint. On the wall opposite was scrawled the sentence, ``Let all
visitors know--Hawaiians are racist.'' Honolulu police have classified
the vandalism as first-degree criminal property damage because of the
$20,000 of projected clean-up costs. The police and the FBI also are
treating the vandalism as a possible hate crime. The director of the
veterans' cemetery said of the vandals, ``The person or persons who did
this lack conscience and are morally bankrupt.'' 4/22/97, The
Washington Post.
May 17, 1997--Beverly, NJ: Vandals desecrated the grounds and
dozens of American flags at the National Cemetery, uprooting shrubbery,
yanking out deacon's benches and ripping down dozens of American Flags
that had draped the caskets of servicemen. The local American Legion
and VFW posts had just finished putting the finishing touches on
cemetery for Sunday's services and a larger parade for Memorial Day.
The damage, which was estimated at $10,000, was discovered by a passing
motorist who saw plants and a bench with an American Flay lying on the
roadway. The veterans groups are offering $1,000 reward for information
leading to the capture of the vandals. 5/18/97, Courier-Post, Cherry
Hill, NJ.
May 24, 1997--Hollywood, FL: Vietnam veteran Bob Gagnon helplessly
watched an American Flag burn on his lawn this Memorial Day weekend. He
said he knew who set the fire. ``Just before the fire, I was talking to
some neighborhood kids, asking them why they didn't have a flag at
their house. I talk to them all the time. I was just curious.'' The
kids jeered him so he went to a neighbor's house, a WW II veteran. Five
minutes after he started taking to the neighbor, someone yelled out
``Hey, the front of your house is on fire!'' They ran over to put it
out but it was too late. Police are investigating the incident. 5/26/
97, Sun-Sentinel, Fort Lauderdale, FL.
May 26-June 2, 1997--Klamath Falls, OR: Five of 100 American Flags
displayed at Klamath Memorial Park in honor of veterans stolen over the
past week. The flags, measuring 5 feet by 7 feet, cost $100 to replace,
said Joe Collings, commander of Veterans of Foreign Wars Post No. 1383.
6/2/97, Herald and News, Klamath Falls, OR.
May 26-June 9, 1997--Wallingford, CT: The burning of four flags
hanging outside downtown homes since Memorial Day weekend is beyond the
realm of mischievous behavior, said a police spokesman. ``When you have
a fire that endangers personal property you are looking at a felony
crime.'' One resident looked out to see his 6 by 9 foot flag that was
draped on the side of his house ablaze, scorching the side of his house
and burning a window shutter. The three remaining flag-burnings were
discovered in the morning, having been set on fire sometime the
previous night. There have been no suspects or leads in this case. 6/
12/97 New Haven Register, CT.
May 30, 1997--San Antonio, TX: Teenagers upset about a new dress
code walked out of classes at Holmes High School in northern San
Antonio and tore down and threatened to burn the U.S. Flag and the
Texas state flag to protest the changes that are to take effect this
fall. Students pulled down the flags as students shouted ``Burn `em
both! Burn `em both!'' One of the protest organizers rushed to the fray
to save the banners. ``What they did with the flags is wrong. It's
totally disrespectful to have it brought down in shame,'' said ninth
grader Eric Escue. 6/97 The Associated Press.
June 18, 1997--Aurora, IL: Three Aurora boys were arrested after
they were seen burning a flag at 12:14 a.m. at a parking lot off N.
Lake Street. The boys, 16, 14 and 12 told police they had burned the
American Flag and thrown it in a trash container. One of the boys said
that it was his right to protest. All were charged with curfew
violation and desecrating a flag and were released to the parents. The
flag was retrieved from the container and placed into evidence. 6/19/97
Beacon News, Aurora, IL.
July 4, 1997--Springfield, IL: Stealing an American Flag was how
one guy celebrated the Fourth of July in downtown Springfield. Passers-
by who saw a man cut the rope on the Federal Building flag pole and
haul down the flag about 9 p.m. called police. Officers caught up with
40-year-old William G. Howard, at Second and Monroe Streets, with the
wadded-up flag at his feet. Howard was jailed on charges of criminal
damage to government property, theft and flag desecration. 7/9/97 the
State Journal-Register, Springfield, IL.
July 5, 1997--Massillon, OH: Authorities are trying to determine
whether they can charge an Alliance teenager who burned an American
Flag after a Fourth of July Observance. Court officials forwarded all
paperwork involving the case of Kristina Koch, 17, to the county
prosecutor's office for research. Koch set the flag on fire at about
12:30 a.m. shortly after Massillon's daylong, July 4 ``Party in the
Park'' celebration had ended. Police Chief Mark D. Weldon said she was
setting fire to the flag and then twirling it above her head when an
off-duty policy officer drove nearby. The officer stopped his car and
showed her his badge, telling her,``I won't allow you to burn my
flag.'' The chief said a report of the incident said that Koch told the
officer she burned the flag ``because she could.'' The only law she
could be in violation of is the local curfew law, which she violated by
30 minutes. 6/9/97 Akron Beacon Journal, Akron, OH.
July 16, 1997--Wallingford, CT: Police charged 17-year-old Jeffrey
Bartlett with setting fire to two American Flags and said he may be
responsible for 10 flag burnings that have angered and frustrated
residents since April. He was charged with reckless burning and
criminal attempt to commit reckless burning for burning flags at Church
and Main Streets overnight. Bartlett made $5,000 bail and is due in
Meriden Superior Court on August 25. Two more teenagers are suspects
and may also be charged, police said. Bartlett is also suspected of
setting fire to another half-dozen flags in the downtown area in April
and May. Police said Bartlett had a motive for burning the flags, but
police won't say just yet what it is. They WILL say it is not a prank.
8/9/97 Record-Journal, Meriden, CT.
September 20, 1997--Humboldt, NE: On Nemaha Street, Mr. Andy Rue
received a disturbing call that his flag had been burned and there was
nothing left but ashes on the ground by the pole. A few minutes later,
a passerby told Mr. Rue that he saw two young men running near an alley
across the street from the Rue residence. The passerby did not
recognize the men, nor did he put two-and-two together until he thought
about the burning flag later. Deputy Goldsberry of the local police
said this will be ``booked as an Arson case.'' 9/25/97 The Humboldt
Standard, Humboldt, Nebraska.
November 26, 1997--Lawrence County, OH: An American Flag and staff
were set on fire about 10 p.m. at the Macedonia Baptist Church on
County Road 20 North in South Point. The fire damaged the floor of the
church. The Lawrence County Sheriff's Department has reported this as
arson, and also said the church does not conduct regular services. (The
last service was Sept. 28.) No arrests have been made. 11/30/97 The
Herald-Dispatch, Huntington, West Virginia.
January 1, 1998--Fresno, CA: a group of about 10 people wearing
masks burned a U.S. Flag in front of Fresno City Hall to protest the
nation's ``contribution'' of guns to a massacre in Mexico. Representing
a movement called the Nation of Aztlan, they said the flag burning was
dedicated to the people of Chiapas, Mexico, 45 of whom were killed in
the Dec. 22, 1997 massacre. Sighting the U.S. Flag is a symbol of
murder, drugs and rape, they stated this incident is ``about the
seventh flag we've burned publicly.'' 1/2/98 The Fresno Bee, Fresno,
California.
February 21, 1998--Washington, DC: Protesters burned an American
Flag in Lafayette Park across from the White House in Washington to
protest a possible military action against Iraq. It is unknown what
type of action, if any, was taken. 2/22/98 Standard-Examiner, Ogden,
Utah.
May 14, 1998--Manhattan, NYC, NY: Angry over last week's episode of
``Seinfeld'' set during the annual Puerto Rican parade, about 75
protesters demonstrated in front of NBC headquarters at Rockefeller
Center. In the episode that touched off protests, the Kramer character
accidentally set a Puerto Rican flag on fire. Midway through the
protest one man, who identified himself as Elio Monteverde Torres, set
fire to an American Flag, which quickly burned to ashes. Another man
attempted to set fire to an Israeli flag, but was stopped by police
officers and other protesters. Organizers of the demonstration said
they did not support the flag burnings. 5/15/98 Newsday, NY.
May 21, 1998--Somers, CT: Several flags were taken down, ripped,
tied in knots and stuffed in toilets at the town's park on Field Road.
Town officials believe in the shadow of darkness some local kids
destroyed the flags. 6/1/98 WTNH News Channel 8.
June 5, 1998--Coventry, CT: Half of about 150 flags disappeared
Friday night from veterans graves in the Nathan Hale Cemetery. The loss
of the flags was upsetting to members of American Legion Post 52, which
serves Coventry and Mansfield. Just before Memorial Day each year,
members place flags at veterans' graves in all the cemeteries in town.
6/12/98 The Hartford Courant, Hartford, CT.
*June 15, 1998--Prince George, VA: Retired Army Colonel Charles
Thornton and wife Amanda woke up to the sound of broken glass. Mr.
Thornton later found their American flag lying on the ground ripped and
burned along with broken flood lights. Police were called to
investigate the crime. Later that evening, American Legion Post 146
Commander Jim Morin, Hopewell, VA presented the Thorntons with a new
flag. 6/15/98 Prince George's Journal, Lanham, MD.
*June 23, 1998--Prince George, VA: An American Flag was burned a
second time in Retired Army Colonel Charles Thornton's front lawn. The
flag was found burning on the pole around 6 a.m. by Mr. Thornton. Holes
were still burning in the material when found. Arrests have not been
made in either incidents. A second replacement flag as donated to the
Thorntons by the members of American Legion Post 146 in Hopewell, VA.
6/23/98 Prince George's Journal, Lanham, MD.
July 12, 1998--Danbury, CT: A flag was desecrated at the home of
Peggy and Wesley Ferguson. The flag was given to them by their son, who
is a Marine. The couple notified the police Sunday after noticing
someone had also vandalized a sign and gazebo at their home. 7/14/98
The Danbury News-Times, Danbury, CT.
August 7, 1998--Minersville, PA: A Pottsville, PA man and four
juveniles were arrested in connection with a vandalism spree at the
Mount Peace and St. Stanislaus cemeteries. The vandalism included the
beheading of a stone statue of Jesus, the burning of about 100 American
flags on veteran's graves, the toppling of numerous headstones and an
attempt to burglarize a tool shed. Police said an anonymous tip, fueled
by public outrage and $1000 reward, led to the arrests. 8/20/98 The
Harrisburg Patriot, Harrisburg, PA.
August 26, 1998--Pocono Mountain, PA: A Monroe County man and a 17-
year-old were charged with desecrating flags at the Pocono Pines
Cemetery. The men broke a flag on a veteran's grave and then set fire
to it. 8/28/98 Allentown Morning Call, Allentown, PA.
September 10, 1998--Boulder, CO: City maintenance crews found the
charred remains of an American flag near city hall and the city's main
library. When city employees found it, half the charred stripes lay
smoldering on the ground, while the burned stars were still attached to
the pole. 9/11/98 Denver Post, Denver, CO.
October 24, 1998--Sioux Falls, SD: An 18-year-old Sioux Falls man
was arrested for burning a U.S. Flag, according to police. Steve Knorr
was arrested after police were called to a loud party. As the party
ended, Knorr picked up a flag and began to set it on fire with a
lighter. Knorr was arrested on charges of desecrating a flag,
disorderly conduct, resisting arrest and underage consumption. 10/27/98
Sioux Falls Argus Leader, Sioux Falls, SD.
October 31, 1998--York, PA: A 14-year-old boy has been charged in
York County Juvenile Court with desecration of a flag after police came
across the burning flag Saturday evening, according to Hanover Police
Lt. Randy Whitson. A spokesman for the American Civil Liberties Union
said, regardless of the motivation, flag burning is protected by the
U.S. Constitution. 11/4/98 The Harrisburg Patriot, Harrisburg, PA.
November 11, 1998--High Point, NC: Someone ripped and then burned
an American flag outside the Dr. I.T. Mann American Legion Post 87 on
Veterans Day or early the next morning. High Point police are
investigating the flag burning but have no suspects in the case. The 5-
by-8 flag had flown at half-staff since Tuesday because of the death of
a Post 87 member. 11/13/98 Greensboro News & Record, Greensboro, NC.
January 28, 1999-- Jacksonville, FL: John Edward Reeves, 41, was
arrested after he was spotted wearing a flag as a dress. A police
officer reported the man had cut a hold in the flag for his head and
tied it around his waist with a tie. 1/31/99 Orlando, Sentinel,
Orlando, FL.
The Chairman. I might also mention that this amendment
simply provides Congress the opportunity of passing legislation
to protect the flag, and I would suggest that legislation would
be very similar to the legislation that passed 91 to 9 back in
1989. And everyone who was here then who testified against the
flag amendment voted for that particular bill at that time,
except Senator Chafee, who, with me, voted against it because I
believed it to be unconstitutional. And, of course, the Court
held that it was unconstitutional.
So we will put that list of those who voted for that
particular flag amendment into the record at this particular
point.
[The information referred to follows:]
[GRAPHIC] [TIFF OMITTED]63464.001
The Chairman. But the point shouldn't be lost that we
actually did come up with a statute that would have solved this
problem in a very limited but measured and important way that
91 Senators voted for, including Senators Glenn and Kerrey. And
it was a valiant attempt to try and do by statute that which
the Supreme Court said could not be done, and that statute was
ruled unconstitutional. So, that is why we are here.
And General Brady made it clear that in spite of the--there
weren't just 44, there were 74, since March of 1994, incidents,
some of which had multiple burnings of flags or desecration of
flags--and General Brady made it clear that not all of the flag
desecrations were reported. That is why he said ``hundreds.''
So this isn't just the itty-bitty problem that some would have
you think.
We are happy at this time to have Mr. Randolph Moss, the
administration's witness from the Justice Department, with us,
and we are happy to give you this opportunity to express the
administration's viewpoint, Mr. Moss, and we welcome you to the
committee.
STATEMENT OF RANDOLPH D. MOSS, ACTING ASSISTANT ATTORNEY
GENERAL, OFFICE OF LEGAL COUNSEL, U.S. DEPARTMENT OF JUSTICE,
WASHINGTON, DC
Mr. Moss. Thank you, Mr. Chairman, and members of the
committee. It is difficult to imagine a more humbling
experience than to testify after the panel that has just
appeared. But I am very honored to appear before you today on
behalf of the administration to present testimony regarding the
proposed constitutional amendment on flag desecration.
As you know, in 1989, the Supreme Court held, in Texas v.
Johnson, that a State could not, consistent with the first
amendment, enforce a statute criminalizing flag desecration
against a demonstrator who burned an American flag.
In 1990, in United States v. Eichman, the Court held that
the first amendment prohibited the conviction of demonstrators
for flag burning under a Federal statute criminalizing
mutilating, defacing, or physically defiling an American flag.
For 9 years, then, the flag has been left without any
statutory protection against desecration. For 9 years, only one
thing has stood between the flag and its routine desecration--
the fact that the flag, as a potent symbol of all that is best
about our country, is justly cherished and revered by nearly
all Americans.
Chairman Hatch has eloquently described the flag's status
among the American people.
The American flag represents in a way nothing else
can, the common bond shared by a very diverse people.
Yet, whatever our differences of party, politics,
philosophy, race, religion, ethnic background, economic
status, social status, or geographic region, we are
united as Americans. That unity is symbolized by a
unique emblem, the American flag.
It is precisely because of the meaning the flag has for
virtually all Americans that the last 9 years have witnessed no
outbreak of flag burning, but only a few isolated instances. If
proof were needed, we now have it. With or without the threat
of criminal penalties, the flag is amply protected by its
unique stature as an embodiment of our national ideals and
unity.
It is against this background that one must assess the need
for a proposed constitutional amendment that would provide
Congress with the power to prohibit and presumably to punish
the physical desecration of the flag. Such an amendment would
run counter to our traditional resistance, dating back to the
time of the Founders, to resorting to the amendment process.
Moreover, the amendment, if passed, would for the first time in
our history limit the individual liberties protected by the
Bill of Rights, adopted over 2 centuries ago.
Whether other truly exigent circumstances might justify
altering the Bill of Rights is a question we can put to one
side here. For you are asked to assume the risk inherent in
creating a firsttime exception to the Bill of Rights in the
absence of any meaningful evidence that the flag is in danger
of losing its symbolic value. The proposed amendment before you
would create legislative power of uncertain dimension to
override the first amendment and other constitutional
guarantees. For these reasons, the proposed amendment--and any
other proposal to amend the Constitution in order to punish
isolated acts of flag burning--should be rejected by this
Congress.
Although it goes without saying, I would like to emphasize
that the administration's view on the wisdom of the proposed
amendment does not in any way reflect a lack of appreciation
for the proper place of the flag in our national community. The
President always has and always will condemn in the strongest
terms those who would denigrate the symbol of our country and
our highest ideals. The President's record and statements
reflect his longstanding commitment to protection of the
American flag and his profound abhorrence of flag burning and
other forms of flag desecration.
To conclude that flag desecration is abhorrent and that it
should be resoundingly and unequivocally condemned, however, is
not to conclude that we should for the first time in our
Nation's history cut back on the individual liberties protected
in the Bill of Rights. As James Madison observed at the
founding, amending the Constitution should be reserved for
``great and extraordinary occasions.'' This caution takes on
unique force when we think of restricting the Bill of Rights,
for its guarantees are premised on an unclouded sense of
permanence, a sense that they are inalienable, a sense that we
as a society are committed to the proposition that the
fundamental protections of the Bill of Rights should be left
alone.
As my written submission sets forth in greater detail, even
if it were appropriate to create an exception to the Bill of
Rights in some limited manner, the scope of the proposed
amendment is far from clear.
To give the first amendment meaning, we must infer at least
some restriction on the first amendment freedoms identified in
the Supreme Court's flag decisions. It is profoundly difficult,
however, to identify just how much the first amendment would be
affected. It is unclear whether the powers to be exercised
under the amendment would be free from all or only some first
amendment constraints.
Would the proposed amendment, for example, permit enactment
of a statute that bars flag desecration only when it conveys a
particular message, such as contempt for a particular policy?
In addition, when faced with genuine uncertainty as to the
extent to which the amendment will displace the other
protections enshrined in the Bill of Rights, it is unclear, for
example, whether the proposed amendment is intended or would be
interpreted to authorize enactments that would otherwise
violate the due process ``void for vagueness'' doctrine.
I have real doubts about whether these interpretative
concerns could be fully resolved even by the most artful of
drafting. But even assuming that all of the interpretive
difficulties of this amendment could be cured, it would remain
an ill-advised departure from our constitutional history marked
by a deep reluctance to amend our most fundamental law. The
Bill of Rights was ratified in 1791. Since that time, over 200
years ago, the Bill of Rights has never once been amended. And
this is no historical accident, nor a product only of the
difficulty of the amendment process itself. Rather, our
historic unwillingness to amend the Bill of Rights reflects a
reverence for the Constitution. Indeed, part of the unique
force, security, and stature of the Bill of Rights derives from
the widely shared belief that it is permanent and enduring.
The Framers themselves understood that resort to the
amendment process was to be sparing and reserved for ``great
and extraordinary occasions.'' In the Federalist Papers, James
Madison warned against using the amendment process as a device
for correcting every perceived constitutional defect,
particularly when public passions are inflamed. He stressed
that frequent resort to the amendment process,
would, in great measure, deprive the government of that
veneration which time bestows on everything, and
without which perhaps the wisest and freest governments
would not possess the requisite stability.
The proposed amendment cannot be reconciled with this
fundamental and historic understanding of the integrity of the
Constitution. I think perhaps Charles Fried, who served with
distinction as Solicitor General in the Reagan amendment, made
the point best when he testified against a similar proposed
amendment in 1990. He said:
The flag, as all in this debate agree, symbolizes our
nation, its history, its values. We love the flag
because it symbolizes the United States; but we must
love the community even more, because the Constitution
is not a symbol. It is the thing itself.
Thank you, Mr. Chairman.
The Chairman. Thank you. We appreciate having your
testimony.
In your written testimony, you state that any implementing
legislation for the Flag Protection Amendment has the potential
to be void under the vagueness doctrine. Now, in your view,
would the current flag desecration statute--that is 18 U.S.C.
700--which specifically sets out the particular acts that
constitute ``desecration,'' be unconstitutionally vague in its
definition of desecration?
Mr. Moss. Mr. Chairman, what I intended to convey in my
written statement was not a conclusion about whether the ``void
for vagueness'' doctrine would apply here or not but, rather,
that there would be a question that would arise----
The Chairman. That it may be a problem, is what you are
saying?
Mr. Moss. That there would be a question that would arise
as to whether it would apply and whether in adopting this
amendment the Congress and the State legislatures would intend
not only to override particular provisions of the Bill of
Rights, but also the due process ``void for vagueness''
doctrine. That actually turns out to be historically a
significant question because the Supreme Court, in a case
called Smith v. Goguen, one of the flag cases, struck down a
conviction of someone who had sewn a flag to the seat of his
jeans on the grounds that the statute was, at least as applied
to that individual, unduly vague under the fifth amendment of
the Constitution.
The Chairman. As you know, section 700(a)(1) punishes
anyone who ``mutilates, defaces, physically defiles, burns,
maintains on the floor or ground, or tramples upon any flag of
the United States,'' just to use that. But in 1917, the
National Conference of Commissioners on Uniform State Laws
passed the Uniform Flag Act. Now, many States used this model
Act for decades, and their courts reasonably interpreted the
term ``desecrate'' and ``flag of the United States.''
Now, is there some new reason why unresolvable ambiguities
in these definitions would arise if the Flag Protection
Amendment and 18 U.S.C. 700 simply restored the status quo
ante?
Mr. Moss. Mr. Chairman, I don't mean to suggest that a
statute could not be crafted that in the vast majority of its
applications would be consistent with the due process ``void
for vagueness'' doctrine. Instead, I am raising a question not
dealing with any particular application or any particular
statute but, rather, the question of how the courts will
interpret the amendment and whether the courts would interpret
the amendment to supersede the ``void for vagueness'' doctrine.
Under current law, there may be a great number of
prosecutions that could be brought consistent with the Due
Process Clause, putting aside the Johnson and Eichman cases.
But it might be that with this amendment there could be
additional prosecutions that could not have been brought, such
as the prosecution in Smith v. Goguen, and that is a question
that I think reflects part of the uncertainty that would result
from amending the Constitution in this fashion.
The Chairman. It is one thing to point out that there may
be uncertainties or vagueness, but it is another thing to say
there could never be a statute drafted that would resolve these
problems, because that is not what you are saying.
Mr. Moss. No.
The Chairman. OK; now, many have suggested that the
Congress should be very hesitant to send the Flag Protection
Amendment to the States for ratification because, as you have
heard here today, Senator Glenn, in particular, and Senator
Kerrey and Senator Chafee indicated that they assert the Bill
of Rights has never been amended. Yet, as you know, the Bill of
Rights has been amended in some form on several occasions.
For example, the 13th amendment amended the fifth amendment
as interpreted in Dred Scott v. Sanford to provide that former
slaves are not property subject to the Due Process Clause but
free men and women.
The 14th amendment was interpreted in Bolling v. Sharpe to
have effectively amended the Due Process Clause of the fifth
amendment to apply equal protection principles to the Federal
Government.
Moreover, in Engel v. Vitale, the Supreme Court
circumscribed the first amendment rights of American school
children by holding that the establishment clause, the
Establishment of Religion Clause, precluded prayer in the
public schools.
We have limitations on the first amendment with regard to
fighting words filed by the courts, with regard to obscenity
and pornography, and with regard to burning draft cards. That
is offensive conduct, is found to be such under the law, and is
a limitation on the first amendment. Yelling ``fire'' in a
crowded theater is a limitation. Libel and defamation is a
limitation.
There may have to be some limitations, and the courts may
very well find them, with regard to some of the literature and
some of the music lyrics that are being expressed today that
are distorting and hurting our children in this country. We are
going to have to find some way of resolving some of these
problems.
Now, each of these constitutional changes substantially
modified the rights and correlative duties of affected parties
other than those originally envisioned by the Framers of the
Bill of Rights given the longstanding tradition of accepting
regulation of physically destructive conduct toward the flag
that existed for 150 years or more. However, the proposed
amendment would effect a much smaller change by simply
restoring the right of the people to protect the physical
integrity of the flag.
So when faced with the choice of the formal amendment
process or a de facto amendment process by Court decision,
don't you think that the more appropriate means of amending the
Constitution is through the official amendment process as
provided in article V, where Congress and the people have the
leading roles rather than, say, an activist Court? Weren't the
Founding Fathers correct in leaving such major changes to the
Congress and to the people instead of to five members of the
Supreme Court of the United States?
Mr. Moss. Mr. Chairman, you have made a number of important
points that I would like to attempt to respond to.
With respect to your first point that the Bill of Rights
has, in fact, been amended in the past, I would respectfully
disagree. In the Dred Scott decision, the 13th amendment's
outline of slavery in this country, I don't view that as a
decision to amend the Takings Clause of the fifth amendment;
rather, what Congress did when it outlawed slavery was to
change the definition of property in this country and to say
that we could no longer hold people as property in the country.
With respect to the other decisions, Mr. Chairman, that you
cited, those were decisions, I believe, extending rather than
limiting the Bill of Rights, in which the Court held that,
pursuant to incorporation under the 14th amendment, limitations
that had been included previously in the Bill of Rights and
applied only to the Federal Government were extended and
applied to the States.
With respect to your observation that the Court has at
times found exceptions to the first amendment in the area of
obscenity--for example, fighting words as another example--I
think one important line to draw there is--and Justice Scalia
makes this point in his fairly recent decision in the R.A.V.
case. The Court in the obscenity context and in the fighting
words context is not saying that the first amendment simply
does not apply in that context or that there is an exception to
the first amendment but, rather, in interpreting and applying
the first amendment, which the Court must do as its charge, the
Court has concluded that the small value in pursuit of truth
that might derive from obscene speech or fighting words speech
is overwhelmed by the very substantial societal interests on
the other side in preventing that sort of speech and that as a
result the Court concluded that the first amendment protections
would not apply, but applied the first amendment and
interpreted the first amendment----
The Chairman. We think that societal values are so
important, embodied in the flag, that we should not allow it to
be physically desecrated in our country. In fact, I keep making
this point over and over. Last night I was on MacNeil-Lehrer,
and, of course, some people are trying to bring down Littleton,
CO, to gun control. Now, that may be something that has to
occur in this country if the people want that to occur. I am
not sure they do. But I was pointing out that, you know, before
you get to that, there are a lot of other underlying problems
that have led to the Littleton, CO, problem, one of which is a
lack of values, the lack of some of the basic rights that made
this country the greatest country in the world. And some of us
believe that it is time to start standing up for those values,
and the flag is one of those things that we can stand up for
and that we can create a tremendous debate around this country
about just what is involved here and being patriotic and being
willing to stand up for the symbol of our country that we
pledge allegiance to.
I might add that I would also point out that taking the
right to pray in school away from children did not expand their
first amendment rights. Indeed, every time there is a change in
a right, there is also a change in a correlative duty. The
proposed amendment, as I view it, merely strikes the balance of
rights and duties as the Framers of the Bill of Rights did
instead of how five members of the Supreme Court did in Texas
v. Johnson.
So these are tough issues, and I just want to point out
that there are two sides to them, and the people who just say,
well, this was the first time in history that the first
amendment has been limited, it just isn't true. That just isn't
true at all.
Now, if tomorrow the Supreme Court overruled, say, the
Johnson case, the Eichman case, the R.A.V. to the extent
necessary to hold that physical desecration of the American
flag could be prohibited under O'Brien, would that be a
legitimate change in constitutional law? That could happen, you
know.
Mr. Moss. I agree it could, Mr. Chairman. In fact, when you
were talking about the form of balancing that takes place in
the area of obscenity and fighting words, the courts do balance
in that area, and in some sense that is what the Congress is
considering here.
I served as a law clerk to Justice Stevens in 1989 when he
wrote his dissenting opinion in Texas v. Johnson, and I
understand that that, in fact, is what he was saying in that
case, and that is the approach he would have taken. The
Government argued for that approach in Eichman and said to the
Court in Eichman that you should adopt the same approach to
flag burning and you should conclude here that, as Justice
Rehnquist said in his dissent in the Texas v. Johnson case,
this is not a particularly articulate form of speech if it is
speech at all, it is more in the nature of a grunt, and that
the profound importance of the flag should outweigh any
interest in that particular mode of speech.
The Court rejected that argument in Johnson, rejecting it
in Eichman. I don't mean to suggest at all that I don't believe
that it is a reasonable argument to make.
What I do mean to suggest, though, is that I think that it
is a very different thing for the Court to decide to overrule
Johnson and Eichman, at some point in history for the Court to
have reached a different decision in those cases, than it is
for the Congress and the people of the United States to amend
the Constitution and to change the Bill of Rights. And the
reason that I think it is different is because one of the
guarantees that the Founders intended in the Bill of Rights was
a sense of security, a sense of inalienability, and a sense
that it would be interpreted and applied by an independent
judiciary. And in that regard, James Madison, when he
introduced the Bill of Rights to the House of Representatives,
said, ``If they are incorporated''--that is, the Bill of
Rights--``into the Constitution, independent tribunals of
justice will consider themselves in a peculiar manner the
guardians of those rights. They will be an impenetrable bulwark
against every assumption of power in the legislative or
executive.''
And, of course, as you have indicated every day, the courts
in this country must interpret and apply the first amendment,
but it is a dramatically different step to take that process of
interpretation out of the hands of the independent judiciary
and submit it to the political process through the article V
amendment process.
The Chairman. Of course, that is precisely what the
Constitution provides. In other words, that is every bit as
valid a process as having five unelected judges make a
determination for everybody as to what the Constitution means,
especially over ruling 200 years of consistent support for the
proposition that burning the flag and desecrating the flag is
an act, an offensive action, rather than actually speech. So,
all of a sudden, five Justices make it a speech problem.
The point is, in your remarks, you indicated very few flag
desecrations. Since 1954, we have got right here 74 of them,
and those are the ones that are reported. We know that there
are many, many more that are not reported that are ignored, but
the fact of the matter is that even 74 seems to me a pretty
large number for people who want to preserve the values that
our country believes in.
Let me say one other thing, and then I will turn it to
Senator Leahy, of course. Senator Chafee suggested that the old
slippery slope argument should prevent us from sending this
amendment to the States. That argument states that if we pass
the amendment to protect the flag, there will be a limitless
number of amendments protecting the Bible, the Constitution,
the cross, the menorah, and other symbols. Of course, the flag,
unlike these other objects, has been carried into battle by our
troops of all parties and faiths. It has been laid on the
caskets of all of our fallen heroes and receives the Pledge of
Allegiance from all of our school children, or at least most
all of our school children.
Unlike the other symbols, which Senator Chafee mentioned,
large super-majorities have supported physical protection for
the flag. In fact, 49 States have asked for this amendment. I
have to believe that is not just all emotional.
So article V, and I contend, of the Constitution itself,
and specifically its multiple and super-majority requirements,
are a sufficient guard against a slippery slope of future
amendments as it has been for other members for the last 200
years.
Let me also state in regard to the statute that we passed
back then, the argument was that we can do this by statute, and
there are still those who are making that argument today,
although twice now we have been shot down on a statutory basis.
The fact of the matter is 91 Senators voted for that, and I
would suggest that that probably would be the form of any flag
desecration statute after this amendment is hopefully passed by
both Houses of Congress and ratified by 38 States, or three-
quarters of the States, but be that as it may, I have been the
first to say that there are two points of view here, and I
respect both. It is just that I happen to agree with the three
people who testified for the amendment and respect the others
and you who have differing points of view.
Let me turn to Senator Leahy, and we will finish this up.
Senator Leahy. Thank you, Mr. Chairman.
I heard the mention of how many cases of flag-burning there
have been. I feel any cases of flag-burning, even one, is too
many. Somebody asked me earlier today, well, what if somebody
came and burned--I have always talked about flying the flag
outside of my home, something I do very proudly. In fact, most
Vermonters, when they go by, they know I am home because the
flag is flying. I tend to have a lot of people drop by.
Sometimes they only drive by, but it is nice to live in a State
like ours where you can do that.
Somebody said, ``What about this? You do not have a law.
You do not have a Constitution. Suppose somebody came and took
your flag and burned it.'' I said, ``Now wait a minute. We have
got all kinds of laws. We can get the person for trespassing.
We can get them for destruction of property,'' my property in
this case.
If my young son, the Marine, was home, we would have to
serve the subpoena on the person at the hospital, I would
suspect, afterward, but these are the things that happen.
I would also mention my pride in going to countries,
totalitarian countries, where I could say proudly to the
people, where they have to have every single kind of a law to
show respect to their government officials, to the symbols of
the state and everything else--they have to have these laws and
have to enforce them all the time--to say in our country, we do
that without the laws because we have respect for our
Government and we have respect for our symbols, something these
totalitarian countries have to instill by fear, not by example.
I also have to think, as reprehensible as it is, to have
the burning of flags, we have had far more incidence of young
people shooting other young people, not just the Colorado
incident, but throughout this country. Frankly, it would be
good if maybe this committee would spend as much time worrying
about how to get guns out of the hands of young people.
Frankly, it would be important on the number of hate crimes
that we have if we could find time to have hearings and a
markup on the hate crime bill, now before the committee. These
are things I would like to see happen because these are
impacting people all the time.
The people of Colorado, I am sure all respect their flag,
as we do. Right now, they are far more concerned about the
safety of the children who are still alive in Colorado as they
mourn those who are not. That is far more preeminent in their
mind, and I suspect if they were to speak to the Congress, they
would say that is what they would like us to be focussing our
time on.
Mr. Moss, I do appreciate you being here. I am sorry that
we were not given the opportunity--and I understand it is a
mistake in communication somewhere--for you to testify, as
expected, earlier.
I have a few questions, and I know the chairman has a busy
schedule, and others do. I will submit my questions for the
record.
Mr. Moss. Thank you, Senator Leahy.
The Chairman. We will keep the record open.
Senator Leahy. And I thank you for being here.
Mr. Moss. Thank you.
The Chairman. Thank you.
We will keep the record open for others to submit their
matters for the record as well.
With regard to Senator Leahy's comments about totalitarian
governments, most of those governments do not permit free
speech. There is nothing in this amendment or anything
pertaining to it that would prohibit any type of free speech,
the right to criticize the flag, the right to condemn it, the
right to say whatever you want to. It is just that we believe
that we ought to prevent physical desecration of the flag, and
the only way we can do that now is through a constitutional
amendment, in our opinion.
So, again, I just say that there are sincere people on both
sides of this issue. We will just have to battle it out on the
floor and hopefully get it through both houses, and then, from
my point of view, battle it out in the 50 State legislatures
and see what happens, but I feel very deeply about it, and
those who have spoken on the other side feel very deeply about
their position as well. And I respect both sides, but we are
going to push this with everything we can.
We would have preferred to have the administration with us
on this, of course, but in any event, we respect you and
appreciate you being here. I am sorry we had that little flap
before. I personally did not mean that or want that to happen.
With regard to hate crimes, we are going to have a hearing
within the next few weeks on hate crimes. I filed a bill that,
hopefully, will help to solve some of these problems, but we
will talk about it and see where we go from there.
With regard to gun control, it is a constant issue. It is
going to be a constant issue. I suspect that the juvenile
justice bill will be up within the next month, and I suspect,
at that point, there will be all kinds of efforts to impose gun
control statutes on the American people, rightly or wrongly.
And we will just have to face those and, as far as I am
concerned, let the majority win and govern, and we will just
face those at that time.
There is one thing that I am super sure of, and that is
that our country is in a moral malaise right now, that our
values are being tested on all fronts, and that our children
are being tested in so many vile and terrible ways.
I just got a list of hundreds of Internet sites where you
can learn to build bombs and other weapons of destruction. You
wonder how these kids get a hold of all these things. Sooner or
later, we may have to come to a conclusion, as we have in some
instances, for the protection of children and juveniles, that
we have to limit some of these so-called rights in order to
protect them and protect society as a whole. The question is:
How can we do that? What form should they be? Should it be done
at all? This committee is going to have to face these issues,
and as long as I am chairman, I will sure try to face them with
my colleagues. Of course, I want to give equal consideration to
my colleagues on the other side as well, many of whom differ
with me on some of these issues. So that is what makes this
country great is that we can have these differences and we can
debate them, and we can do so in a reasoned and sometimes
passionate and sometimes dispassionate manner.
So, with regard to your being here, we appreciate you being
here and appreciate your statement, and we will keep the record
open for anybody who has any questions in writing until the end
of the day and we will go from there.
Thank you so much. Good to be with you.
[The prepared statement of Mr. Moss follows:]
Prepared Statement of Randolph D. Moss
Mr. Chairman, and Members of the Committee.* As you know, in 1989
the Supreme Court held in Texas v. Johnson\1\ that a State could not,
consistent with the First Amendment, enforce a statute criminalizing
flag desecration against a demonstrator who burned an American flag. In
1990, in United States v. Eichman,\2\ the Court held that the First
Amendment prohibited the conviction of demonstrators for flag burning
under a federal statute that criminalized mutilating, defacing, or
physically defiling an American flag.
---------------------------------------------------------------------------
* In 1995, Walter Dellinger, Assistant Attorney General, Office of
Legal Counsel, provided substantially similar testimony to the
Subcommittee on the Constitution, Federalism, and Property Rights of
the United States Senate Judiciary Committee regarding S.J. Res. 31, A
Bill Proposing an Amendment to the Constitution of the United States to
Grant Congress and the States the Power to Prohibit the Physical
Desecration of the Flag of the United States.
\1\ 491 U.S. 397 (1989).
\2\ 496 U.S. 310 (1990).
---------------------------------------------------------------------------
For nine years, then, the flag has been left without any statutory
protection against desecration. For nine years, one thing, and only one
thing, has stood between the flag and its routine desecration: the fact
that the flag, as a potent symbol of all that is best about our
Country, is justly cherished and revered by nearly all Americans.
Chairman Hatch has eloquently described the flag's status among the
American people:
The American flag represents in a way nothing else can, the
common bond shared by a very diverse people. Yet whatever our
differences of party, politics, philosophy, race, religion,
ethnic background, economic status, social status, or
geographic region, we are united as Americans. That unity is
symbolized by a unique emblem, the American flag.\3\
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\3\ 141 Cong. Rec. S4275 (daily ed. Mar. 21, 1995).
It is precisely because of the meaning the flag has for virtually
all Americans that the last nine years have witnessed no outbreak of
flag burning, but only a few isolated instances. If proof were needed,
we have it now: with or without the threat of criminal penalties, the
flag is amply protected by its unique stature as an embodiment of
national unity and ideals.
It is against this background that one must assess the need for a
constitutional amendment (S.J. Res. 14) that would provide Congress
with the ``power to prohibit,'' and presumably impose criminal
punishment for, the ``physical desecration'' of the American flag. Such
an amendment would run counter to our traditional resistance, dating
back to the time of the Founders, to resorting to the amendment
process. Moreover, the amendment, if passed, would for the first time
in our history limit the individual liberties protected by the Bill of
Rights, adopted over two centuries ago. Whether other truly exigent
circumstances justify altering the Bill of Rights is a question we can
put to one side here. For you are asked to assume the risk inherent in
crafting a first-time exception to the Bill of Rights in the absence of
any meaningful evidence that the flag is in danger of losing its
symbolic value. Moreover, the proposed amendment before you would
create legislative power of uncertain dimension to override the First
Amendment and other constitutional guarantees. For these reasons, the
proposed amendment--and any other proposal to amend the Constitution in
order to punish isolated acts of flag burning--should be rejected by
this Congress.
i.
At the outset, and out of an abundance of caution, I would like to
emphasize that the Administration's view on the wisdom of the proposed
amendment does not in any way reflect a lack of appreciation for the
proper place of the flag in our national community. The President
always has and always will condemn in the strongest of terms those who
would denigrate the symbol of our Country's highest ideals. The
President's record and statements reflect his long-standing commitment
to protection of the American flag, and his profound abhorrence of flag
burning and other forms of flag desecration.
To conclude that flag desecration is abhorrent and that it should
be resoundingly and unequivocally condemned, however, is not to
conclude that we should for the first time in our Nation's history cut
back on the individual liberties protected in the Bill of Rights. As
James Madison observed at the founding, amending the Constitution
should be reserved for ``great and extraordinary occasions.'' \4\ This
caution takes on unique force, moreover, when we think of restricting
the Bill of Rights, for its guarantees are premised on an unclouded
sense of permanence, a sense that they are inalienable, a sense that we
as a society are committed to the proposition that the fundamental
protections of the Bill of Rights should be left alone. It is against
this background that the Administration has concluded that the isolated
incidents of flag desecration that have occurred since 1989 do not
justify amending the Constitution in this significant respect.
---------------------------------------------------------------------------
\4\ The Federalist No. 49, at 314 (James Madison) (Clinton Rossiter
ed., 1961).
---------------------------------------------------------------------------
ii.
The text of the proposed amendment is short enough to quote in
full: ``The Congress shall have power to prohibit the physical
desecration of the flag of the United States.'' \5\ The scope of the
amendment, however, is anything but clear, and it fails to state
explicitly the degree to which it overrides other constitutional
guarantees. Accordingly, even if it were appropriate to create an
exception to the Bill of Rights in some limited manner, it is entirely
unclear how much of the Bill of Rights the proposed amendment would
trump.
---------------------------------------------------------------------------
\5\ S.J. Res. 14. See also H.J. Res. 33 (same).
---------------------------------------------------------------------------
By its terms, the proposed amendment does no more than confer
affirmative power upon Congress to legislate with respect to the flag.
Its wording is similar to the power-conferring clauses found in Article
I, Section 8 of the Constitution: ``Congress shall have power to lay
and collect taxes,'' for instance, or ``Congress shall have power * * *
to regulate commerce * * * among the several states.'' Like those
powers, and all powers granted government by the Constitution, the
authority given by the proposed amendment would seem to be limited by
the Bill of Rights and the Fourteenth Amendment.
The text of the proposed amendment does not purport to exempt the
exercise of the power conferred from the constraints of the First
Amendment or any other constitutional guarantee of individual rights.
Read literally, the amendment would not alter the result of the
decisions in Johnson or Eichman, holding that exercise of state and
congressional power to protect the symbol of the flag is subject to
First and Fourteenth Amendment limits. Instead, by its literal text, it
would simply and unnecessarily make explicit the governmental power to
legislate in this area that always has been assumed to exist.
To give the proposed amendment meaning, then, we must read into it,
consistent with its sponsors' intent, at least some restriction on the
First Amendment freedoms identified in the Supreme Court's flag
decisions. It is profoundly difficult, however, to identify just how
much of the First Amendment and the rest of the Bill of Rights is
superseded by the amendment. Once we have departed, by necessity, from
the proposed amendment's text, we are in uncharted territory, and faced
with genuine uncertainty as to the extent to which the amendment will
displace the protections enshrined in the Bill of Rights.
We do not know, for instance, whether the proposed amendment is
intended, or would be interpreted, to authorize enactments that
otherwise would violate the due process ``void for vagueness''
doctrine. In Smith v. Goguen,\6\ the Court reversed the conviction of a
defendant who had sewn a small flag on the seat of his jeans, holding
that a state statute making it a crime to ``treat contemptuously'' the
flag was unconstitutionally vague. We cannot be certain that the
vagueness doctrine applied in Smith would limit as well prosecutions
brought under laws enacted pursuant to the proposed amendment.
---------------------------------------------------------------------------
\6\ 415 U.S. 566 (1974).
---------------------------------------------------------------------------
Nor is this a matter of purely hypothetical interest, unlikely to
have much practical import. The proposed amendment, after all,
authorizes laws that prohibit ``physical desecration'' of the flag, and
``desecration'' is not a term that readily admits of objective
definition. On the contrary, ``desecrate'' is defined to include such
inherently subjective meanings as ``profane'' and even ``treat
contemptuously'' itself. Thus, a statute tracking the language of the
amendment and making it a crime to ``physically desecrate'' an American
flag would suffer from the same defect as the statute at issue in
Smith: it would ``fail [ ] to draw reasonably clear lines between the
kinds of nonceremonial treatment that are criminal and those that are
not.'' \7\
---------------------------------------------------------------------------
\7\ 415 U.S. at 574.
---------------------------------------------------------------------------
The term ``flag of the United States'' is similarly ``unbounded,''
\8\ and by itself provides no guidance as to whether it reaches
unofficial as well as official flags, or pictures or representations of
flags created by artists as well as flags sold or distributed for
traditional display. Indeed, testifying in favor of a similar amendment
in 1989, then-Assistant Attorney General William Barr acknowledged that
the word ``flag'' is so elastic that it can be stretched to cover
everything from cloth banners with the characteristics of the official
flag, as defined by statute,\9\ to ``any picture or representation'' of
a flag, including ``posters, murals, pictures, [and] buttons.''
10 And while a statute enacted pursuant to the amendment
could attempt a limiting definition, it need not do so; the amendment
would authorize as well a statute that simply prohibited desecration of
``any flag of the United States.'' Again, such a statute would
implicate the vagueness doctrine applied in Smith, and raise in any
enforcement action the question whether the empowering amendment
overrides due process guarantees.
---------------------------------------------------------------------------
\8\ Id. at 575.
\9\ See 4 U.S.C. 1.
\10\ Measures to Protect the Physical Integrity of the American
Flag: Hearings on S. 1338, H.R. 2978, and S.J. Res. 180 Before the
Senate Comm. on the Judiciary, 101st Cong., 1st Sess. 82-85 (1989)
[``1989 Hearings''].
---------------------------------------------------------------------------
Even if we are prepared to assume, or the language of the amendment
is modified to make clear, that the proposed amendment would operate on
the First Amendment alone, important questions about the amendment's
scope remain. Specifically, we still face the question whether the
powers to be exercised under the amendment would be freed from all, or
only some, First Amendment constraints, and, if the latter, how we will
know which constraints remain applicable.
An example may help to illuminate the significance of this issue.
In R.A.V. v. City of St. Paul,11 decided in 1992, the
Supreme Court held that even when the First Amendment permits
regulation of an entire category of speech or expressive conduct, it
does not necessarily permit the government to regulate a subcategory of
the otherwise proscribable speech on the basis of its particular
message. A government acting pursuant to the proposed amendment would
be able to prohibit all flag desecration,12 but, if R.A.V.
retains its force in this context, a government could not prohibit only
those instances of flag desecration that communicated a particularly
disfavored view. Statutes making it a crime--or an enhanced penalty
offense--to ``physically desecrate a flag of the United States in
opposition to United States military actions,'' for instance, would
presumably remain impermissible.
---------------------------------------------------------------------------
\11\ 505 U.S. 377 (1992).
\12\ Even a statute that prohibited all flag desecration would be
in tension with the principle of R.A.V. Although a few acts done with a
flag could be considered a ``desecration'' in all contexts, that would
not be the case with burning, for example. Only some burnings could be
prohibited by statutes adopted under the proposed amendment. Respectful
burning of the flag will remain legal after the amendment's adoption as
before. See 36 U.S.C. Sec. 176(k) (``The flag, when it is in such
condition that it is no longer a fitting emblem for display, should be
destroyed in a dignified way, preferably by burning.''). What may be
prohibited is only that destruction of a flag that communicates a
particular message, one of disrespect or contempt. The conclusion that
a particular act of burning is a ``desecration'' may require in most
instances consideration of the particular message being conveyed.
---------------------------------------------------------------------------
This result obtains, of course, if and only if the proposed
amendment is understood to confer powers that are limited by the R.A.V.
principle. If, on the other hand, the proposed amendment overrides the
whole of the First Amendment, or overrides some select though
unidentified class of principles within which R.A.V. falls, then there
remains no constitutional objection to the hypothetical statute posited
above. This is a distinction that makes a difference, as I hope this
example shows, and it should be immensely troubling to anyone
considering the amendment that its text leaves us with no way of
knowing whether the rule of R.A.V.--or any other First Amendment
principle--would limit governmental action if the amendment became part
of the Constitution.13
---------------------------------------------------------------------------
\13\ Another proposed amendment, contained in H.J. Res. 5,
provides: ``The Congress and the States shall have power to prohibit
the act of desecration of the flag of the United States and to set
criminal penalties for that act.'' Not only does the phrase ``act of
desecration'' appear to be broader, and more vague, than the term
``physical desecration'' in S.J. Res. 14 and H.J. Res. 33, but H.J.
Res. 5 also grants the power of prohibition to the fifty States and an
uncertain number of local governments. That raises, of course, the
interpretive question whether state legislatures acting under the
amendment would remain bound by state constitutional free speech
guarantees, or whether the proposed amendment would supersede state as
well as federal constitutional provisions.
---------------------------------------------------------------------------
iii.
I have real doubts about whether these interpretive concerns could
be resolved fully by even the most artful of drafting. Any effort to
constitutionalize an exception to the Bill of Rights necessarily will
produce significant interpretive difficulties and uncertainty, as the
courts attempt to reconcile a specific exception with the general
principles that remain. But even assuming, for the moment, that all of
the interpretive difficulties of this amendment could be cured, it
would remain an ill-advised departure from a constitutional history
marked by a deep reluctance to amend our most fundamental law. The Bill
of Rights was ratified in 1791. Since that time, over two hundred years
ago, we have not once amended the Bill of Rights. And this is no
historical accident, nor a product only of the difficulty of the
amendment process itself. Rather, our historic unwillingness to tamper
with the Bill of Rights reflects a reverence for the Constitution that
is both entirely appropriate and fundamentally at odds with turning
that document into a forum for divisive political battles. Indeed, part
of the unique force, security, and stature of our Bill of Rights
derives from the widely-shared belief that it is permanent and
enduring.
The Framers themselves understood that resort to the amendment
process was to be sparing and reserved for ``great and extraordinary
occasions.'' \14\ In The Federalist Papers, James Madison warned
against using the amendment process as a device for correcting every
perceived constitutional defect, particularly when public passions are
inflamed. He stressed that ``frequent appeals would, in great measure,
deprive the government of that veneration which time bestows on
everything, and without which perhaps the wisest and freest governments
would not possess the requisite stability.'' \15\
---------------------------------------------------------------------------
\14\ The Federalist No. 49, at 314 (James Madison).
\15\ See id. at 314-17. See also 1989 Hearings at 720-23 (statement
of Professor Henry Paul Monaghan, Columbia University School of Law).
---------------------------------------------------------------------------
The proposed amendment cannot be reconciled with this fundamental
and historic understanding of the integrity of the Constitution. I
think perhaps Charles Fried, who served with distinction as Solicitor
General under President Reagan, made the point best when he testified
against a similar proposed amendment in 1990:
The flag, as all in this debate agree, symbolizes our nation,
its history, its values. We love the flag because it symbolizes
the United States; but we must love the Constitution even more,
because the Constitution is not a symbol. It is the thing
itself.\16\
---------------------------------------------------------------------------
\16\ Proposing an Amendment to the Constitution Authorizing the
Congress and the States to Prohibit the Physical Desecration of the
American Flag: Hearing Before the Senate Comm. on the Judiciary, 101st
Cong., 2d Sess. 110 (1990).
---------------------------------------------------------------------------
iv.
Americans are free today to display the flag respectfully, to
ignore it entirely, or to use it as an expression of protest or
reproach. By overwhelming numbers, Americans have chosen the first
option, and display the flag proudly. And what gives this gesture its
unique symbolic meaning is the fact that the choice is freely made,
uncoerced by the government. Were it otherwise--were, for instance,
respectful treatment of the flag the only choice constitutionally
available--then the respect paid the flag by millions of Americans
would mean something different and perhaps something less.
The Chairman. We will recess until further notice.
Mr. Moss. Thank you, Mr. Chairman.
[Whereupon, at 10:59 a.m., the committee was adjourned.]
[GRAPHIC] [TIFF OMITTED]63464.002
[GRAPHIC] [TIFF OMITTED]63464.003
Questions and Answers
----------
April 20, 1999
----------
Responses of Maj. Gen. Patrick Brady to Questions From the Senate
Committee on the Judiciary
Question 1. In your view, is it appropriate for the government to
protect the burning of a cross, but not the burning of an American
flag? If so, why?
Answer. Whether or not the government protects the burning of a
cross I think, would depend on the circumstances. I don't see how one
can compare a particular religious symbol to a symbol which represents
religious freedom. In any event burning a cross or a flag must be a
hate crime if there is to be such a thing.
Question 2. Some have suggested that prohibiting physical
desecration of the American flag is similar to the suppression of
dissent in countries like Nazi Germany, China, and Cuba. Do you believe
this is a fair comparison?
Answer. No. This is the most distressing of all the arguments of
those who would deny the people the right to protect their flag. To
hear a protected American flag, protected according to the will of the
majority of a free people, compared with a flag protected according to
the will of despots, hurts. George Washington helped design and adopt
our flag, does that align him with Communists? James Madison, who wrote
the First Amendment, and Thomas Jefferson, believed our flag should be
protected. Does that align them with Hitler, or Mao Tse Tung or Castro?
It is the remarkable differences between our flag and the flags of
tyrants that warrants its protection.
Question 3. In your opinion, what are the most pressing issues
facing our veterans?
Answer. Many veterans I speak to are concerned about broken
promises, especially health care.
Question 4. Are you aware of the INS's current practice of
detaining and deporting American veterans for minor drug-related
offenses, without providing them with any meaningful opportunity to be
heard regarding their service or other personal circumstances? Are you
aware of any veterans organizations that are trying to help veterans
who are caught up in immigration proceedings?
Answer. Deporting American Veterans? Where? No, I have not heard of
this.
Question 5. How much has the Citizens' Flag Alliance and its member
organizations expended on its efforts in support of the proposed
constitutional amendment? I would like to know both the total amount
spent, and a breakdown of your expenditures since the organization was
founded in 1994.
Answer. The CFA does not raise money. The American Legion has
appropriated by resolution with the consent of its members $13.277
million for the flag campaign over a period of five years. This money
has been spent on the services of legal counsel, lobbyists and
grassroots education, travel and related expenses.
Question 6. You asserted at today's hearing that there are
``hundreds'' of flag burnings in this country each year. By contrast,
your organization's Web site lists only 73 incidents of flag
``desecration'' over the last five years, and many of those incidents
involved simple theft or acts other than actual flag burnings. The
Congressional Research Service has uncovered only about three dozen
flag incidents during the same period, or about seven incidents a year,
and Professor Robert Justin Goldstein, the leading historical scholar
on this issue, testified last year that there have been only about 200
flag burning incidents in the entire history of the country. Given this
discrepancy in the data, could you provide this Committee with all
documentary support for your assertion?
Answer. I was responding to a comment that there had only been 36
(?) since the Court's decision, not each year. It is safe to say there
have been hundreds but no one knows the exact number since it is legal
and many don't get reported. In Connecticut alone there were reported
over a hundred. The following is from the 6-12-98 issue of the Hartford
Courant. ``The small American flags marking the graves of veterans in
the Nathan Hale Cemetery have disappeared. The flags, which were placed
at the grave sites by members of the local American Legion before
Memorial Day, were ripped from their posts, police and the cemetery
caretaker said. Half of the about 150 flags disappeared Friday night;
the remainder were discovered missing Wednesday. ``There's not a single
one left,'' said Nelson Bearce, the sexton of the century, which is on
Lake Street. In WA they have flag sitters on patriotic days to protect
the flags. In any event what has the number to do with what is right or
wrong?
Question 7. Your organization has argued that the Supreme Court's
decision in Johnson overturned 200 years of precedent, and that the
Founding Fathers thought that flag desecration should be punished. Why
was there no federal flag desecration law until 1968?
Answer. Laws were written in the States and on the books from the
1880's. It wasn't until the 1960's with the overwhelming number of flag
desecration incidents that Congress passed a law to prohibit flag
desecration in the District of Columbia. It came as a result of the
effect that such desecrations had on the morale of the men on the front
lines in Vietnam. It was, I believe, the flag protection act of 1967
and it had very heavy support from Congress * * * as did the flag
protection act of 1989.
Question 8. Major General Brady, the President of the American Bar
Association wrote a letter last year opposing this amendment, writing
that ``America is not so weak that it must serve patriotism by
mandating it through a constitutional amendment.'' Do you think that
passing this amendment would show American weakness or, to the
contrary, would it show American strength and resolve in protecting our
values?
Answer. Answer was not legible.
Question 9. When did you first become involved with Citizens Flag
Alliance? What positions have you held with the organization and when
did you serve in those positions?
Answer. I was elected to the Board of Directors in 1994 and became
the Chairman of the Board in 1996.
Question 10. Your testimony states that the Citizens Flag Alliance
is a coalition of 140 organizations representing some 20 million
people. Please provide a list of your member organizations and their
approximate number of members.
Answer. List provided by separate cover (fax).
Question 11. You stated at the hearing that there have been
``hundreds'' of flag desecration incidents in this country in recent
years. The Congressional Research Service has been able to identify
only 36 reported incidents since January 1995. Please provide whatever
documentation you or your organization have compiled of flag
desecration incidents since that date.
Answer. See above answer.
Question 12. Your testimony states that flag burning and the
Supreme Court's decision that laws prohibiting it are unconstitutional
``teach [ ] that the outrageous acts of the minority are more important
than the will of the majority.'' Don't you agree that the Bill of
Rights of our Constitution is intended to protect the rights of
individuals against the will of the majority?
Answer. That is certainly part of it but the outrageous acts of a
minority should never be more important than the will of the majority
in a country such as ours. I believe that the amendment clause in the
Constitution is designed to protect the majority from mistakes by a
minority, in this case, the Supreme Court. So much of what we hear on
this and much else is opinion. It is the will of the majority that
should determine the facts.
__________
citizens flag alliance, inc. member organizations--as of april 9, 1999
AMVETS (American Veterans of WWII, Korea and Vietnam), African-
American Women's Clergy Association, Air Force Association, Air Force
Sergeants Association, Alliance of Women Veterans, American Diamond
Veterans, National Association, American GI Forum of the U.S., American
GI Forum of the U.S. Founding Chapter, The American Legion, American
Legion Auxiliary, American Merchant Marine Veterans, American War
Mothers, Ancient Order of Hibernians, Association of the U.S. Army,
Baltic Women's Council, Benevolent & Protective Order of the Elks,
Bunker Hill Monument Association, Inc., Catholic Family Life Insurance,
Catholic War Veterans, The Center for Civilian Internee Rights, Inc.,
and The Chosin Few.
Combat Veterans Association, Croatian American Association,
Croatian Catholic Union, Czech Catholic Union, Czechoslovak Christian
Democracy in the U.S.A., Daughters of the American Colonists, Drum
Corps Associates, Dust Off Association, Eight & Forty (des Huit
Chapeaux et Quarante Femmes), Enlisted Association National Guard U.S.
(EANGUS), Family Research Council, Fleet Reserve Association, Forty &
Eight (La Societe des Quarante Hommes et Huit Chevaux), Fox Associates,
Inc., The General Society, Sons of the Revolution, Gold Star Wives of
America, Inc., Grand Aerie, Fraternal Order of Eagles, Grand Lodge
Fraternal Order of Police, Grand Lodge of Masons of Oklahoma, Great
Council of Texas, Order of Red Men, Hungarian Association, and
Hungarian Reformed Federation of America.
Just Marketing, Inc., Knights of Columbus, Korean American
Association of Greater Washington, Ladies Auxiliary of Veterans of
World War I, MBNA America, Marine Corps League, Marine Corps Mustang
Association, Inc., Marine Corps Reserve Officers Association, Medal of
Honor Recipients for the Flag, Military Order of the Purple Heart of
the U.S.A., The Military Order of the Foreign Wars, The Military Order
of the World Wars, Moose International, National Alliance of Families
for the Return of America's Missing Servicemen, National Association
for Uniformed Services, National Association of State Directors of
Veterans Affairs, Inc. (NASDVA), National Center for Public Policy
Research, National 4th Infantry (IVY) Division Association, National
FFA (Future Farmers of America) Organization, National Federation of
American Hungarians, Inc., National Federation of State High School
Associations, National Grange, National Guard Associations of the U.S.,
and National League of Families of Am. Prisoners and Missing in SE
Asia.
National Officers Association (NOA), National Organization of World
War Nurses, National Service Star Legion, National Slovak Society of
the United States, National Sojourners, Inc., National Society
Daughters of the American Revolution, National Society of the Sons of
the American Revolution, National Twenty & Four, National Vietnam
Veterans Coalition, Native Daughters of the Golden West, Native Sons of
the Golden West, Navajo Codetalkers Association, Naval Enlisted Reserve
Association (NERA), Navy League of the U.S., Navy Seabee Veterans of
America, Non-Commissioned Officers Association, The Orchard Lakes
School, PAC Pennsylvania Eastern Division, Past National Commander's
Organization (PANCO), Patrol Craft Sailors Association, Polish American
Congress, Polish Army Veterans Association (S.W.A.P.), Polish Falcons
of America, and Polish Falcons of America--District II.
Polish Home Army, Polish Legion of American Veterans, U.S.A.,
Polish Legion of American Veterans, U.S.A. Ladies Auxiliary, Polish
National Alliance, Polish National Union, Polish Roman Catholic Union
of North America, Polish Scouting Organization, Polish Western
Association, Polish Women's Alliance, The Reserve Officers Association
of the United States, The Retired Enlisted Association (TREA), The
Retired Officers Association of Indianapolis, Inc., Robinson
International, Ruritan National, Sampson WWI Navy Vets, Inc., San Diego
Veterans Services**, Scottish Rite of Freemasonry--Northern Masonic
Jurisdiction, Scottish Rite of Freemasonry--Southern Jurisdiction, The
Seniors Coalition, Sons of Confederate Veterans, Sons of The American
Legion, Sons of the Revolution in the State of Wisconsin, Sportsmen's
Athletic Club--Pennsylvania, and Standing Rock Sioux Tribe.
Texas Society Sons of the American Revolution, The Travelers
Protective Association, TREA Senior Citizens League, The Ukrainian Gold
Cross, The Uniformed Services Association (TUSA), United Armed Forces
Association, U.S. Coast Guard Enlisted Association, U.S. Coast Guard
Chief Petty Officer Association, U.S. Marine Corps Combat
Correspondents Association, U.S. Pan Asian American Chamber of
Commerce, U.S.A. Letters, Inc., U.S.S. Intrepid Association, Inc.,
Veterans of the Battle of the Bulge, Veterans of the Vietnam War, Inc.,
Vietnam Veterans Institute (VVI), Vietnam Veterans of America, Chapter
415, Vietnam Veterans of America, Chapter 566, VietNow, Virginia War
Memorial Foundation, WAVES National, Women's Army Corps Veterans
Association, Women's Overseas Service League, Woodmen of the World,
63rd Infantry Division Association, USAR, and 66th Engineering TOPO
Vets**--140 Total.
---------------------------------------------------------------------------
** Indicates added organization.
---------------------------------------------------------------------------
__________
Harvard Law School,
Cambridge, Massachusetts, April 27, 1999.
Sen. Orrin Hatch,
U.S. Senate,
Washington, DC.
Dear Senator Hatch. Thank you for your letter enclosing questions
submitted by members of the Judiciary Committee regarding my testimony
about the flag amendment on April 20. My responses are as follows.
Responses of Richard D. Parker to Questions From Senator Hatch
Question 1. The question is about the ``Guidelines for
Constitutional Amendments'' promulgated by a group that calls itself
``Citizens for the Constitution.'' As I said on April 20, I am familiar
with this group. I participated in two of its meetings--one public, one
private--held at Harvard Law School. I have general views about its
``Guidelines'' project as well as particular views about application of
the ``Guidelines'' to the flag amendment.
the ``guidelines'' in general
Answer 1. Three general features of the ``Guidelines'' project are
striking. (1) The ultimate and authoritative guidelines for amendment
of the Constitution are set forth in the document itself. On one hand,
Article V prescribes the requisite supermajority votes required of
specified representative institutions. And, on the other, the Preamble
makes clear that the ``sovereign'' to which representative institutions
in the federal government are responsible is ``We, the People.'' It
follows that, in the end, the crucial guideline for congressional
referral of a proposed constitutional amendment to the state
legislatures is the will of the people--a will that is sustained, over
some time, by more than a bare majority among them. Of course, anyone
is free to try to persuade the people (and their representatives) to
support or oppose a particular amendment. What's more, anyone is free
to advocate general ``guidelines'' for amendment going beyond the
democratic ones set forth in the Constitution--just as anyone is free
to advocate general ``guidelines'' that ought to be met by social
welfare legislation or health care legislation. But the job of
Congress, I would assume, is to vote up or down on each proposal and to
do so as representatives of the people, not as devotees of anyone's
extra-constitutional ``theory.''
(2) The eight ``guidelines'' advocated by the Citizens for the
Constitution are platitudes. Although (as I have indicated) they should
not be viewed as requirements, who could disagree, in the abstract,
that they are, at least, relevant considerations? Indeed, they are so
commonplace and vaporous as to make one wonder why anyone would imagine
Congress needs to be informed of their relevance. The question is: What
are the drafters of the ``guidelines'' afraid of?
(3) The overall emphasis in the Introduction to the ``guidelines''
and in the ``guidelines'' themselves is on ``self-restraint'' and on
fear that ``self-restraint may be breaking down'' among elected
representatives--rather than on responsiveness to the people. The bias,
indeed, is in favor of ``amendment'' of the Constitution by unelected
people wearing black robes--rather than by elected representatives as
was plainly intended by Article V. The Citizens for the Constitution
may talk of the value of ``stability.'' But they seem unconcerned about
instability produced by constant changes in constitutional meaning
accomplished by a majority--often a mere 5-4 majority--of the Supreme
Court. What they are afraid of--and what their scare rhetoric seeks to
stir up fear of--is ``We the People.''
The ``guidelines'' thus seek to entrench the status quo, the
judicially determined status quo. There was a similar effort--also led
by prestigious members of the bar--early in this century. Then,
prominent lawyers and law professors sought to entrench a judicially
determined status quo--the common law--against social welfare and
regulatory reform by legislatures. Then, too, they mobilized abstract
platitudes in service of ``stability.'' But, then, it was progressives
who exposed and opposed their effort to stymie democratic government.
Where are the self-styled ``progressives'' today? It seems (as an
active Democrat I'm sorry to say this) that a number of them have taken
up the old across-the-board stance against change and democracy.
the ``guidelines'' as applied to the flag amendment
As abstract platitudes, the ``guidelines'' are susceptible to use
as wise-sounding wrapping around conclusory assertions--what I describe
to my students as ``reasoning by harrumphing.'' Thus a standpatter can
cite one of them and simply say, ``I'm concerned [or worried] about
that.'' I am confident the Senate will not settle for such a parody of
debate. And, once citation of the ``guidelines'' is made a subject of
clear-headed point-by-point debate, I am confident that the Senate will
see that, as applied to the flag amendment, the ``guidelines'' are in
fact fully satisfied.
Let me go though the eight ``guidelines'' in order.
(1) ``Abiding Importance'' In my testimony, I took pains to
emphasize that what is at stake here is not a matter of ``immediate
gratification'' or of opposition to a particular series of flag-
burnings. Rather, I said, it is about restoring the power of Congress
to preserve a vital national resource, a resource that is invisible but
no less real for that--respect for the ideal of national community,
uniquely symbolized by the flag. This resource was long taken for
granted, but is being eroded not by the ``malcontents'' who trash the
flag, but by the 5-4 Court decision that ``amended'' the First
Amendment to legitimate the trashing and by the failure of the rest of
us to correct that mistake decision. Our children, or our children's
children, eventually may not even remember what this eroded resource
was, much less have access to it. If that happens, they will be the
poorer, since any great military or domestic project depends on it and
since, as I said, liberty that lacks a foundation in community rests on
a foundation of sand. What is at stake, then, is the kind of America we
leave to future generations, obviously a matter of ``abiding
importance.''
(2) Making ``Our System More Politically Responsive or Protect[ing]
Individual Rights'' The flag amendment restores to Congress power to be
responsive to a sustained value-commitment of most of the American
people. It was the 5-4 Court decision that ``amended'' the
Constitution, after two centuries, to block such responsiveness. The
majority of the Court did not ``protect'' an individual ``right.'' It
concocted a new one. By the same token, the Court did not ``protect'' a
``powerless minority.'' For the right of a minority to express its
views in any number of ways (by words and by acts) has long been
guaranteed and is not affected by the proposed amendment. If however,
long-recognized free speech rights are to be maintained in the future--
if free speech is not to turn into a contest to see who can yell
loudest--respect for American community-despite-diversity must be
maintained. That is the aim of this amendment. Hence, this amendment
protects individual rights.
(3) Exhaustion of ``Other Means'' In 1989, Congress went the extra
mile and, against good advice, tried a statutory alternative to an
amendment. It was slapped down immediately by the 5-4 Court majority.
It is now perfectly clear--as I demonstrated in my letter to you of
March 10--that there is absolutely no alternative. All ``other means''
have been thoroughly exhausted.
(4) Consistency With ``Related Constitutional Doctrine That The
Amendment Leaves Intact'' The flag amendment is more narrowly and
sharply focused than any under consideration in the last two decades.
It is designed specifically to correct one and only one mistaken
``interpretation'' of the First Amendment by five Justices in 1989 and
1990. It would restore to the First Amendment the meaning it was
understood to have for the two centuries before 1989. Plainly, then, it
is perfectly consistent with all other free speech doctrine, that which
existed along with it before 1989 and that which has been elaborated
since then. Thus, contrary to bizarre speculation in the statement by
the Acting Assistant Attorney General, the void-for-vagueness doctrine
and the doctrine of the R.A.V. decision would not be affected in any
way. A statute enacted under the amendment would have to pass muster
under both--that is, it could not be excessively vague (and the Flag
Protection Act of 1989, drafted with much expert advice, was not) and
it could not discriminate among particular points of view of those who
physically desecrate the flag in a fashion specified by the statute
(and the Flag Protection Act of 1989 does not). What is most peculiar
is that opponents of a restorative (as opposed to a transformative)
amendment try to depict it as ``inconsistent'' with surrounding
doctrine--or as an ``amendment of the Bill of Rights''! Obviously, this
is utterly false.
(5) ``Enforceable Standards'' Being so narrowly and sharply
focused--and being intended to restore authority that the Congress
exercised for most of this century and, in particular, to validate the
Flag Protection Act of 1989--there can be no legitimate issue on this
count. Terms in provisions of the Constitution are interpreted in
context. And, in this case, there is a long-standing context and
practice by which to read the terms ``physical desecration'' and
``flag.''
(6) ``Think[ing] Through and Articulat[ing] Consequences'' For the
last ten years--and particularly for the last five--we have considered
consequences of adopting the flag amendment. There is no issue on this
count. What is odd, again, is that anyone would raise it with respect
to a proposed amendment that restores--rather than transforms--the
long-understood meaning of the Constitution.
(7) ``Full and Fair Debate'' Everyone recognizes that the debate
over this amendment has been as ``full'' and as ``fair'' as a debate
could possibly be.
(8) ``Ensur[ing] a Contemporaneous Consensus'' It is, of course, up
to Congress whether to set a deadline for ratification of an amendment
and, if so, what deadline. In this case, however, there is little
problem of ensuring a ``contemporaneous consensus.'' Already, the
legislatures of 49 states have memorialized Congress urging it to send
the flag amendment to them, pursuant to Article V. It is as likely as
can be that they will act on it promptly once it is sent to them.
At the hearing on April 20, we were criticized for having
``chosen'' the ``mechanism'' of constitutional amendment. It was,
however, the framers who ``chose'' it. And for good reason. Article V
is the keystone of the authority of the Constitution. It guarantees
that--despite short-sighted efforts by some to entrench a judicially
determined status quo--the Constitution will remain the property of
``We the People.''
______
Responses of Richard D. Parker to Questions From Senator Leahy
Answer 1. The amendment would authorize only Congress to enact
legislation prohibiting physical desecration of the flag.
Answer 2. The question is premised on the idea that the flag
amendment is meant to serve ``purely symbolic purposes.'' This premise
is mistaken. Like other amendments, this one is meant to vindicate a
very important principle. Like other amendments, it is meant to correct
a mistaken decision by the Supreme Court and, so, to restore the long-
standing state of constitutional law under the First Amendment. And,
like other amendments, it is meant to authorize Congress to enact a law
that would affect actual behavior as well as providing a basis for
punishment. There is nothing ``purely symbolic'' about it.
Answer 3. My ``empirical basis'' for suggesting that the
amendment--by taking a clear stand on a matter of principle and by
undoing the mistaken legitimation of flag desecration in a 5-4 Court
decision--would ``help instill public patriotism and community values''
is a combination of common sense and long study of American legal,
political and social history.
__________
Responses of Richard D. Parker to Questions From Senator Thurmond
Answer 1. It is generally agreed by people on both sides of this
issue that, in the 1790's, the framers of the Bill of Rights did not
think they were protecting desecration of the flag as part of the First
Amendment. It took almost two centuries for the First Amendment to be
so ``amended''--by five members of the Supreme Court. The purpose of
the amendment under consideration now is to restore to the First
Amendment the meaning that its framers took for granted.
Answer 2. The Supreme Court has never--repeat: never--understood
the guarantee of free speech to be ``absolute.'' Significantly, the one
Justice who did often seem to endorse ``absolutism''--Justice Hugo
Black--specifically and adamantly opposed extending such protection to
expressive conduct in general and to flag desecration in particular.
Answer 3. Congress not only could, but already has passed a statute
protecting the flag without interfering with ``commercial items such as
clothing and caps.'' Indeed, the Senate passed it by a vote of 91-9. It
is the Flag Protection Act of 1989.
__________
Responses of Richard D. Parker to Questions From Senator Feingold
Answer 1. The question--like the statement by Acting Attorney
General Moss, submitted to the Committee on April 20--suggests a
concern that settled doctrines of constitutional law such as the ``void
for vagueness'' doctrine and the rule of the R.A.V. case, might not
apply to a statute enacted under the proposed amendment. With respect,
I must say that I cannot imagine what could have given rise to this
concern. For it is absolutely baseless.
The ``Void for Vagueness'' Doctrine. I assume the idea here is that
words in the amendment--``physical desecration'' and perhaps ``flag''--
are themselves ``vague.'' But many, even most, words in significant
provisions of the Constitution are ``vague'' by that standard. (Think
of the words ``commerce among the several states'' or ``general
welfare.'') The point, however, is that the ``void for vagueness''
doctrine has nothing to do with language in the Constitution. Rather,
it has to do with language in statutes. The flag amendment is intended
to validate a specific statute--the Flag Protection Act of 1989--
carefully drafted, with much expert advice, and enacted by a 91-9 vote
in the Senate. When the Constitution employs general terms to grant
Congress power, it is up to Congress to legislate in ways that satisfy
the ``void for vagueness'' doctrine, whether under the First Amendment
or the Due Process Clause. Plainly, the 1989 Act showed that this can
be done with respect to prohibition of ``physical desecration of a flag
of the United States.'' The ``void for vagueness'' doctrine thus would
not be affected in the slightest by the flag amendment; it would apply
to any statute enacted under the amendment; and Congress has
demonstrated that such a statute can be drafted so as to pass review
under the doctrine.
The Rule of the R.A.V. Case. This rule bars government from
proscribing sub-categories of generally ``proscribable'' expressive
activity--such as ``obscenity'' or ``fighting words''--if the sub-
categories are defined by their particular message or point of view.
What the flag amendment would do would be to establish ``physical
desecration of a flag of the United States'' as an activity generally
``proscribable'' by Congress. The R.A.V. rule would not be affected in
the slightest by ratification of the amendment. Rather, it would forbid
Congress to punish only those instances of the generally
``proscribable'' activity--i.e., ``physical desecration'' of a flag--by
Democrats or by anti-war demonstrators or by people protesting actions
by the President. Again, the Flag Protection Act of 1989 passes review
under this rule. The exception it makes for ``disposal of a flag when
it has become worn or soiled'' does not discriminate within generally
``proscribable'' activity in terms of viewpoint. Rather, it plainly is
designed to track, and give effect to, the definition of that
activity--``physical desecration'' of a flag.
Answer 2. The hypotheticals involving flag ``decoration on
clothing'' and symbols on flags--ranging from ``Elvis Presley'' to a
``dollar sign'' to a ``swastika''--tend, at one and the same time, to
exaggerate and to trivialize the reach of a statute protecting the
American flag from physical desecration. This is, of course, a familiar
mode of opposition to all proposals that are expressed in words. With
respect, let me suggest that in our system of government there is good
reason--in assessing the words of any constitutional provision--to
trust Congress (enacting laws) and the Judiciary (enforcing them) to
weed out both excessive and trivial cases. As I have said, Congress
demonstrated that it deserves that trust in the Flag Protection Act of
1989. It defined ``flag'' as ``in a form that is commonly displayed.''
And it provided for punishment only of one who ``knowingly mutilates,
defaces, physically defiles, burns, maintains on the floor or ground or
tramples upon'' a flag. The courts have shown time and again that they,
similarly, can be trusted in sorting out any remaining ambiguities in
such statutory language.
I must add that the last two sentences of the question are
misguided. The fear invoked in the first should be laid to rest by the
R.A.V. rule. And the suggestion in the second that the flag amendment
would ``modify'' the First Amendment is simply mistaken. To the
contrary, it would restore to the First Amendment its long-standing
meaning--a meaning ``amended'' away by a 5-4 vote of the Court.
Answer 3. I would urge Congress, in enacting a statute under the
proposed amendment, to stick with traditional forms of punishment. That
is what it did in the Flag Protection Act of 1989.
I hope these responses are of use to the Committee. Again, I thank
you and the Committee for giving me the opportunity to participate in
this stage of the process provided for by Article V of the
Constitution.
Sincerely,
Richard D. Parker,
Williams Professor of Law.
__________
Response of Gary E. May to a Question From Senator Hatch
Question 1. You eloquently stated that the veterans of World War I,
World War II, and the Vietnam War fought for freedom of speech,
including freedom for dissenters to physically desecrate the American
flag. However, the Supreme Court of the United States did not interpret
the First Amendment to protect the physical desecration of the flag
until 1989 after the conclusion of all these wars. Texas v. Johnson,
(1989). Would you respond to this?
Answer. Thank you for giving me the opportunity to respond to your
observation and query.
My testimony included the assertion that the freedoms fought for by
military veterans of all wars, more than tangible symbols of these
freedoms, were powerful motivating forces which fueled their service
and sacrifice. It does not follow that because the Supreme Court had
not made a ruling on flag desecration as a protected form of speech
until after the wars I cited in my testimony that this was implicitly
not included among the freedoms for which service was rendered during
those wars. In my opinion, to suggest that wars are fought and service
is rendered to preserve the freedoms and cultural milieu up to and
including a specific moment in time--the time of the war, for example--
and not beyond that moment is incorrect. I don't believe most World War
II veterans would say they do not support integration even though the
landmark Brown v. Board of Education decision was well after the end of
the war in which they fought. Similarly, Korean veterans probably don't
oppose the Civil Rights Act, even though it followed their war.
Certainly, as a person with a disability, I support civil rights
protections, such as the Americans with Disabilities Act, for people
with disabilities--which wasn't passed by Congress and signed by
President Bush until 1990.
In my experience, veterans fought to protect, preserve and extend
freedoms. We fought for our form of government, for our institutions,
and for the opportunities for others to experience such freedoms and
government. We also fought with the understanding that we would receive
meaningful benefits upon discharge. I do not believe that most veterans
fought to protect our flag--but for everything that it represents,
including freedom of speech.
__________
Response of Gary E. May to a Question From Senator Leahy
Question. In your opinion, what are the most pressing issues facing
our veterans?
Answer. Thank you for giving me the opportunity to respond to your
query.
In my opinion, one of the most pressing and overlooked issues
facing America's veterans is the long term impact of military service
on veterans and their families. The programs funded by the Agent Orange
Class Assistance Program (AOCAP) found a high incidence of disabilities
and health problems among children of Vietnam veterans, for example.
These community-based programs also found many lingering consequences
of service among veterans, including PTSD, substance abuse problems,
marital discord, poverty, and estrangement from potential sources of
help such as the Department of Veterans Affairs, Department of Health
and Human Service, and others. The programs found an aggressive case
management approach to be very effective in working with these
families. Such an approach helped families navigate the patchwork of
programs and services. An important focus of the AOCAP-funded programs
was also to debunk the myths among non veteran oriented service
providers that the Veterans Administration ``takes care of veterans and
their families''.
While the services funded by the Agent Orange settlement were
targeted to Vietnam veterans and their families it was clear that
veterans of other periods of service had similar needs. My own early
clinical experience as a Social Worker in Veterans Administration
medical center and outpatient clinic settings, where most of my clients
were World War II veterans, were very similar to the experience of the
AOCAP-funded programs.
More detailed descriptions of the experiences of AOCAP programs can
be found in The legacy of Vietnam veterans and their families--
Survivors of war: Catalysts for Change, (1995). Rhoades, D.K., Leaveck,
M.R. & Hudson, J.C., eds. This book is available from the Government
Printing Office.
Thankfully, most Americans will never experience the consequences
of war, but for those who do and for their families, I think we have an
enormous obligation. Our response must be substantive, targeted,
meaningful, and available. Historically, the Department of Veterans
Affairs has been seen as the sole institution to fulfill this
obligation. The experience of AOCAP programs and the performance of
many community-based veteran service organizations which emerged during
and following the Vietnam War underscored the need for services to be
actively outreach oriented and community-based v. passively
institutionally-based.
Currently, the programs previously funded through AOCAP are
represented by Veterans Families of America (VFA). I was the founding
president of this organization, which began as the National Alliance of
Veteran Family Service Organizations, and still serve on its board of
directors. VFA is working with the Department of Veterans Affairs,
Health and Human Services, and other federal agencies to secure funding
to revitalize the former AOCAP programs and expand their reach to
veterans and families from all eras and conflicts.
Veterans and their families need services and opportunities, not
symbolism. Recruitment for military service is predicated in part on a
quid pro quo--if honorable service is rendered, then meaningful post
service benefits will follow. Our record of making good on this
contract is not good. The favorable expressed sentiment for veterans by
supporters of the flag desecration amendment would be better placed in
support of extending and stabilizing services responsive to the day-to-
day needs of ordinary veterans and their families.
__________
Response of Maribeth Seely to a Question From Senator Hatch
April 27, 1999.
Dear Senator Hatch: The following is my answer to the question
posed to me in a fax from your office:
Answer. In my view, the cognitive ability of ten and eleven year
old children is not developed to the point where he or she would
accurately interpret the action of the police protecting the rights of
a flag burner. Children understand that burning the flag is wrong.
After all, they salute that same flag everyday. They would be confused
to see a policeman who in their minds is a community helper protect
flag burning.
I did poll my fifth graders, and without exception and with the
abilities commensurate with their age, they said that they would not
want to see someone burning the American flag. I think, at this point,
they would see this as yet another example of violence.
Maribeth Seely.
__________
Response of Lt. Gen. Edward D. Baca to a Question From Senator Leahy
Question 1. In your opinion, what are the most pressing issues
facing our veterans?
Answer. In my interaction with veterans, I have found there are a
number of issues of importance they would like to see Congress address.
They include a constitutional amendment that would return to the
American people the right to protect their flag, health care, funding
of VA Hospitals and improved benefits. Access and funding are the keys
when it comes to health care. Values are at the essence of the flag
debate.
Asking a veteran to choose which issue is ``most'' important is
like asking a father to choose a favorite among his children. All are
equally important and equally valuable.
The American Legion has made a flag-protection amendment their
number one priority for the last ten years. At the same time, they
continue to play an active role in working to improve veterans health
care and veterans benefits. There is no reason why Congress cannot
address all of these issues.
When I told Jose Quintera I would be testifying before the Senate
in favor of a flag-protection amendment he told me, ``Tell them how
much my flag means to me and to other veterans.'' Jose is only one man,
but he is echoing the sentiments of millions of others veterans--
veterans, who like Jose, will one day be buried under the Stars and
Stripes.
Additional Submissions for the Record
----------
April 20, 1999
----------
America Bar Association,
Governmental Affairs Office,
Washington, DC, April 20, 1999.
Dear Senator: On behalf of the American Bar Association, I write to
urge you to oppose S.J. Res. 14, the proposed Constitutional Amendment
to prohibit the physical desecration of the flag of the United States.
The Association deplores any desecration of the flag, but we must
not forget that the flag is a symbol of both national unity and
sovereignty and the individual freedoms we so uniquely enjoy in this
country--the freedom to think one's own thoughts, to express one's
beliefs, and to associate freely with those of like mind. Nowhere are
these principles tested more than when the beliefs of a few individuals
offend the sensibilities of the majority. But I would call your
attention to the words of Justice Jackson in West Virginia State Board
of Education vs. Barnette:
[F]reedom to differ is not limited to things that do not
matter much. That would be a mere shadow of freedom. The test
of its substance is the right to differ as to things that touch
the heart of the existing order.
Our institutions cannot be destroyed by the exercise of First
Amendment freedoms, only strengthened. Even in the scarce instances in
our history in which the flag has been physically abused in political
protest, the ideas and ideals that the flag symbolizes have never been
damaged by such abuse. For the ideals of freedom and liberty that the
flag represents are held secure in the hearts and minds of the American
people and can easily withstand these infrequent episodes of political
dissent.
The flag does not stand unprotected today. For those who physically
abuse the flag for the purpose of inciting others or inflaming
conflicts, rather than for peaceful political protest, the punishment
is sure and certain. There is a myriad of laws already in place that
would punish the vast majority of incidents of flag desecration cited
by proponents of the amendment. A review of those cases shows that the
persons charged with flag desecration were also charged and prosecuted
under local criminal statutes, such as theft, vandalism, destruction of
property, disorderly conduct, or public disturbance.
The proposed flag amendment therefore targets the very speech that
the Constitution now protects--peaceful political dissent. The American
people do not want or need Congress to go to the extreme of tampering
with the First Amendment to deal with the very rare actions of a few
individuals who physically abuse the flag in political protest.
As a symbol, the flag is important, but not more important than the
Bill of Rights. The ideals to be protected reside not in the flag, but
in the principles the flag represents; and those ideals remain long
after any particular flag has fallen to the ravages of time or the
destructive hands of an enemy at war or a political dissenter at home.
We urge you to express your support for the principle of freedom of
speech which our flag represents by opposing S.J. Res. 14.
Sincerely,
Robert D. Evans.
__________
Prepared Statement of Walter Cronkite
With the myriad of serious issues now facing Congress and the
Nation, I am at a loss to understand the congressional rush to take up
the flag desecration amendment. Congress has pursued this unwise
amendment for almost a decade, trying to punish the acts of a handful
of immature, flag-burning hooligans who have successfully aroused our
anger but who pose no threat to our flag.
This tiny band of malcontents has inspired a threat by otherwise
thoughtful, serious citizens to amend the very foundation of our
liberties, which has stood solid and unshaken through political and
economic crises, through insurrection and civil war, through assaults
by foreign ideologies. The Senate has steadfastly rejected such an
amendment twice before. It should do so again for the third and final
time.
The response the demonstrators have inspired would be laughable
were the consequences not so dangerous. Are we really ready to let an
emotional reaction to a picayunish provocation restrict the precious
freedoms guaranteed by our Bill of Rights?
More than any other nation, we Americans have invested in our flag
special properties. We revere it, we pledge allegiance to it, we have a
special code for the proper treatment of it. To us it represents the
embodiment of those mystical qualities that make up the American
spirit.
We are infuriated by those who desecrate it to call attention to
whatever it is that feeds their discontent at the moment. But beyond
raising the calculated ire among the rest of us, no real harm has been
done. Our society is not endangered. Our country has not quaked on its
foundation and there are no cracks in its walls. Our strength as a
nation is not one whit reduced.
In truth, the opposite has happened. These random acts establish
once again that our democratic system is as strong as we always have
hoped it would be, strong enough to tolerate any peaceful dissent no
matter how objectionable to the vast majority.
Even if the flag desecrators were of far greater numbers and
represented a cause of some significance, they still would cause no
threat to the integrity of our national emblem. But those who would
amend the Constitution do threaten the integrity of that far more
precious of our possessions--our freedom of thought and speech.
__________
Prepared Statement of Keith A. Kreul
I provide this statement in opposition to S.J. Res. 14, the flag
desecration resolution under Senate consideration in this 106th
Congress. This amendment will neither protect the flag nor promote true
patriotism. It is a radical approach to a near nonexistent dilemma akin
to atom bombing a sleeping city because a felon may be in the vicinity.
I am a U.S. Army veteran who proudly served my country, and was
privileged to subsequently serve as National Commander of The American
Legion. The preamble of The American Legion states that ``right is the
master of might.'' With that motto in my heart, I urge the Senate to
reject the amendment, to say ``no'' to the misguided organized campaign
that would put the flag above the Constitution. The flag is a beautiful
and inspiring banner representing freedom and justice for all
Americans. It represents those beliefs, credos and tenets that are
outlined by the Constitution of the United States of America.
Freely displayed, our flag can be protected only by us, the people.
Each citizen can gaze upon it, and it can mean what our heartfelt
patriotic beliefs tell us individually. Government ``protection'' of a
nation's banner only invites scorn upon it. A patriot cannot be created
by legislation. Patriotism must be nurtured in the family and
educational process. It must come from the heartfelt emotion of true
beliefs, credos and tenets.
The proposed amendment is described by advocates as being narrowly
written. In reality, the amendment language is broad based and vague.
It clearly would provide future Congresses with a carte blanche
authority to enact statutes whenever it was perceived there was a
majority demand for increased ``protection''. In our history we have
witnessed the enactment of Sedition Acts that subsequently were
repealed. Recently Supreme Court Justice Scalia stated ``A Bill of
Rights that means only what the majority wants it to mean is no Bill of
Rights at all''. The idea that the flag can be protected or will be
safer if flag desecration legislation is enacted is an idle myth. Those
very few citizens that resort to the extremism of defiling the Nation's
banner will not be deterred by a law. In fact, the law likely will give
their cause added undeserved publicity.
Long standing local statutes and ordinances concerning theft,
vandalism, destruction of stolen property, are realistic punishment for
offenders. These laws ensure swift justice under the jurisdiction of
the local community. Vague Federal statutes will only assure publicity
and unending litigation resulting in diminished reverence to the now
beautiful flag that means so very much to patriotic Americans. Chief
Supreme Court Justice Rehnquist, former Attorney General Meese and the
American Bar Association have all recently made pleas to Congress to
desist enacting Federal law that burdens the Court with trivial cases.
Yes, the Constitution can be amended. But will an amendment that is
in obvious conflict with the First Amendment accomplish a purpose, or
will it bring further confusion and discontent diminishing the beauty
the flag has today as it hangs free, revered by us, the people, not
ordered by Government edict? Our nation was not founded on devotion to
symbolic idols, but principles, beliefs and ideals expressed in the
Constitution and its Bill of Rights.
American veterans who have protected our banner in battle have not
done so to protect a ``golden calf.'' Instead, they carried the banner
forward with reverence for what it represents--our beliefs and freedom
for all. Therein lies the beauty of our flag.
The proposed amendment would stain the image of our banner, as it
would no longer wave free, unprotected by Government and freely held
high by the proud citizens of the United States of America. Legislators
advocating ``drawing a line'' are indeed fostering the birth of
tyranny. Are we now, after 210 successful and glorious years, going to
knuckle under to the pressure of modern lobbying techniques to pursue
pseudo patriotism? Organizations exploiting high tech lobbying,
spending millions pressuring lawmakers and pandering to a false
patriotism, should rethink their priorities and not succumb to the
temptation of the ``golden calf.''
We must not delegate to government our responsibility of
citizenship lest we endanger our most precious freedoms. Teaching in
the home and in our schools the principles evident in our Constitution
and Bill of Rights requires responsibility and sacrifice. That energy
enhances pride in our heritage. Respect for our beautiful flag can only
come from the hearts of the people. Attempts to bestow honor by
government decree upon the flag are idle myths and must not prevail.
Thank you for this opportunity to express my views.
______
A Brief Biography of Keith A. Kreul
Keith was born to Harry and Elsie Kreul on a farm near Mt. Ida,
Wisconsin on April 21, 1928. At one year of age the family moved to a
farm southwest of Fennimore, Wisconsin. He attended the rural one room
school and graduated from Fennimore High School in 1946. In 1947 he
enrolled at the University of Wisconsin, graduating in 1951 with a B.S.
in Mechanical Engineering.
He enlisted in the U.S. Army in October 1951 and received a
commission of Second Lieutenant in the Ordnance Corps at Aberdeen
Proving Grounds in September 1952. He was assigned to Lima Ordnance
Depot, Lima, Ohio until separated in October 1953. He served in the
U.S. Army Reserve until 1962.
Following a stint with Fairbanks-Morse at Beloit, Wisconsin in
their Plant Engineering Dept., Kreul returned to Fennimore. He joined
his father and brother in a family farming operation that grew from 320
acres and 50 registered Angus cows to 950 acres and 300 Angus cows. In
1964 the family formed one of the first family farm corporations in the
area. He still resides on the family farm.
In 1969 he was appointed Chairman, Agricultural Stabilization and
Conservation Service State Committee. In 1971 Kreul was appointed State
Executive Director of that USDA agency, a capacity he served until
August 1977. In 1981 Kreul was appointed State Director of the Farmers
Home Administration located at Stevens Point, Wisconsin, a position he
left to serve as National Commander, The American Legion, in August
1983. Following his year at the helm of The American Legion, he was
employed as a District Director for the Farm Service Agency of the USDA
until his retirement after twenty-four years of Federal Service.
In the American Legion, Kreul has served in all leadership
positions on the Post, County, District, Department and National
echelons. This career of volunteer service was climaxed with the
election as National Commander in Seattle, Washington in 1983.
Keith and his wife Dolores are the parents of three sons, one
daughter and eight grandchildren.
__________
Prepared Statement of the People for the American Way
The Bill of Rights, the bulwark of American liberty, has never been
restricted by constitutional amendment in its 206 year history. The
proposed amendment would be the first in our nation's history to cut
back on the First Amendment's guarantee of freedom of expression that
is central to vigorous debate in our democracy. It would set an
exceedingly dangerous precedent for further erosion of our fundamental
freedoms.
According to a 1995 Peter Hart poll, a majority of Americans
opposed such an amendment by 52 percent to 38 percent when they knew
that it would be the first in our nation's history to restrict our
First Amendment freedoms of speech and expression. This finding was
confirmed by a 1997 Freedom Forum poll where a majority also opposed
the proposed amendment after learning that it would be the first to
restrict First Amendment freedoms.
As the Supreme Court has repeatedly explained since 1931 when the
Court first applied the First Amendment to a flag statute, the non-
verbal, peaceful use of the flag to make a political statement, whether
it be by flying, saluting, or burning, is fully protected under the
First Amendment's guarantee of free expression. Thus, since 1931, the
Supreme Court has consistently struck down flag statutes requiring
students to salute the flag, prohibiting flying a ``red flag,'' and
prohibiting burning the U.S. flag. In doing so, the Court has held that
it is a ``bedrock principle underlying the First Amendment * * * that
the Government may not prohibit the expression of an idea simply
because society finds the idea itself offensive and disagreeable.'' The
First Amendment is designed precisely to protect unpopular forms of
peaceful expression and political dissent such as flag or cross
burning, although these acts are highly offensive to almost all
Americans.
Banning flag desecration would put America in the unwelcome league
of totalitarian states such as Communist China, the former Soviet
Union, Cuba and Iran which fear political dissent and imprison
dissenters for desecrating their national flags. We do not need to
coerce patriotism in America and we should not let a handful of
offensive individuals cause us to voluntarily surrender the very
freedoms that make us a beacon of liberty for the rest of the world.
It is entirely unnecessary to amend the Constitution to punish most
incidents of flag desecration. Most of these acts, including burning or
soiling a flag, are typically punishable under public burning, public
health, theft or destruction of public property statutes. In addition,
any offensive expression, including flag desecration, performed for the
purpose of inciting violence or a breach of the peace and that it is
likely to produce an immediate danger is already punishable consistent
with the First Amendment.
The amendment addresses a non-issue. Flag burning is an exceedingly
rare occurrence in our country and the voluntary love of flag and
country are nowhere in jeopardy. The Congressional Research Service
found, on average, less than eight flag desecration incidents per year
from 1990 to 1994. According to one prominent historian of the flag
issue, there have been fewer than 200 flag burning incidents in all of
American history. Public repudiation of persons desecrating the flag
has been widespread and clear.
Instead of increasing respect for the flag, the amendment would
actually make flag burning--which is exceedingly rare--a more
noteworthy and common occurrence. Indeed, there have been almost three
times as many flag burnings since 1989 when this became a front-page
issue than in the preceding over 200 years of American history since
the flag was adopted in 1777.
The amendment is phrased in broad and vague terms that will have
unintended consequences including censorship of images of the flag in
works of art, commerce or advertising that contains physical
representations of flag. Display of the flag in a Jasper Johns
painting, above a car dealership, or on a billboard could
constitutionally be criminalized under the amendment. Amendment
supporter and House Constitution Subcommittee Chair Charles Canady (R-
FL) has conceded that the amendment would permit punishment for
producing boxer shorts with the design of the flag on them. In this
regard, it should be noted that the existing Flag Code expressly
prohibits the use of the flag as ``wearing apparel'' or ``as a costume
or athletic uniform,'' and expressly prohibits use of the flag ``for
advertising purposes in any manner whatsoever.'' 36 U.S.C. 176.
Ironically, the proposed amendment would permit prosecutions not only
of protesters, but of individuals who do not intend disrespect for the
flag.
Congress has already debated and rejected a constitutional
amendment on the flag twice, in 1990 and 1995. The issue has had no
impact on subsequent Congressional elections. The public as
demonstrated by the 1996 elections, wants Congress to focus on real
issues that affect their daily lives and well being.
People For the American Way is a nonprofit, nonpartisan
organization representing more than 300,000 members and activists
dedicated to fighting for fundamental American values including
opportunity, equal justice under the law, and individual liberty.
Duke University,
School of Law,
Durham, NC, March 31, 1999.
Senator Orrin G. Hatch,
Chairman, Senate Judiciary Committee,
Washington, DC.
Dear Senator Hatch: I have reviewed S. 1335 styled ``The Flag
Protection and Free Speech Act of 1995.'' I have also reviewed the
November 8, 1995 Memorandum of the Congressional Research Service, and
the recent letters you received from Professors Stephen Presser and
Paul Cassell offering comments and observations on the proposed act. My
observations, such as they are, are these--
i
If the principal provisions of this proposed bill are narrowly
construed--as I believe they might well be 1--then I am
inclined to agree more nearly with the analysis provided by the
Memorandum of the Congressional Research Service than with that
provided by my able colleagues at Northwestern (Steve Presser) and Utah
(Paul Cassell). In brief, as narrowly construed and rigorously applied,
the principal section of the act (Sec. 3(a)) may not be inconsistent
with the First Amendment and may withstand judicial scrutiny when
reviewed in the courts. I say this because as thus narrowly construed
and applied, Sec. 3(a) may apply only in circumstances in which it
would meet the requirements the Supreme Court itself has laid down in
the principal case applicable to more general laws of this same
sort.2 Herein is how that analysis is likely to proceed:
---------------------------------------------------------------------------
\1\ It is the firm practice of the Supreme Court to construe acts
of Congress very stringently (i.e., narrowly) when any broader
construction would at once draw it into serious first amendment
question. (For useful and pertinent examples, see National Endowment
for the Arts v. Karen Finley et al., 118 S. Ct. 2168 (1998); Watts v.
United States, 394 U.S. 705 (1969); Yates v. United States, 354 U.S.
198 (1957).)
\2\ That controlling case is almost certain to be Brandenburg v.
Ohio, 395 U.S. 444 (1969) (discussed infra, in footnote 9).
---------------------------------------------------------------------------
A. Specifically, Sec. 3(a) proposes to amend Sec. 700 of title 18
(the Criminal Code of the United States). It does so, however, by
subjecting to criminal prosecution only such person who--
destroys or damages a flag of the United States with the
primary purpose and intent to incite or produce imminent
violence or a breach of the peace, and in circumstances where
the person knows it is reasonably likely to produce imminent
violence or a breach of the peace.
Fairly (albeit strictly) read, the statute thus may require both of
the following matters to be proved in any case brought pursuant to this
section--and both of these matters must, as in any other criminal case,
be proved beyond reasonable doubt:
1. That ``the primary purpose'' (i.e., the principal objective
3) sought by the defendant was to incite ``violence or a
breach of the peace'' and, indeed, that it was his specific intent to
do just that;
---------------------------------------------------------------------------
\3\ Not a secondary or even related, co-equal, objective * * *
---------------------------------------------------------------------------
2. That when he acted primarily to bring about the result (and only
secondarily, if at all, to achieve some other aim), moreover, the
circumstances were such that it was at least ``reasonably likely'' in
fact his actions would have precisely that consequence (as he fully
intended) even as he himself fully understood.
3. Likewise, however, according to the plain implication of its own
terms as thus understood, nothing in this section 4 is meant
otherwise to subject one to prosecution merely for destroying or
damaging a flag of the United States--no matter how offensive or
objectionable others may find any such act to be. And, specifically, to
make this latter matter quite clear in a relevant fashion, Sec. 2(a)(4)
(which immediately precedes Sec. 3(a))--expressly distinguishes any and
all cases where one destroys or damages a flag when one does so to
``make a political statement,'' rather then merely ``to incite a
violent response.'' 5
---------------------------------------------------------------------------
\4\ To be sure, other sections do reach some other acts (e.g.,
``damaging a flag belonging to the United States'' (Sec. 700(b)) or
stealing or knowingly converting and destroying a third person's flag
(Sec. 700(c)), but these provisions are doubtless secondary in
significance and so I defer consideration for such slight discussion of
these provisions as they are worth. (Briefly, however, there is no
likely problem with the provision re ``a flag belonging to the United
States.'' (See e.g., Spence v. Washington, 418 U.S. 405, 409 (1974)
(dictum) (``We have no doubt that the State or National Governments
constitutionally may forbid anyone from mishandling in any manner a
flag that is public property.'') As to a flag merely owned by a third
party, that one ``steal[s], knowingly convert[s], and destroy[s],''
there may be--as the other commentators have noted--a federalism
problem (the act in this regard would not appear to meet any of the
requirements under United States v. Lopez, 514 U.S. 549 (1996), nor
does the act appear to be connected to any other enumerated power
provided in Article I Sec. 8 of the Constitution (e.g., the spending
power, tax power, etc.). It remains arguable, however, that the same
(merely implied) power providing Congress with legislative authority to
establish incidental insignia of nationhood (e.g., a flag, motto, seal,
etc.) could conceivably permit it to draw on the ``necessary and proper
clause'' to protect personal flag ownership from interference
(including interference by theft or conversion), so the ultimate answer
to this question is a bit unclear. I agree with the other commentators,
however, that without doubt state criminal (and tort) laws already
reach all instances that would come within this provision--so it is at
best redundant and may (inadvertently?) represent still one more
instance of gratuitously piling federal criminal sanctions on top of
pre-existing state sanctions (a practice the American Bar Association,
as well as the Chief Justice of the United States, has recently asked
Congress to use more sparingly if at all). In brief, neither need for,
nor any special utility of, these provisions has been shown).
\5\ Subsection (a)(4) of Sec. 2, (``Findings and Purposes'')
declares (with emphasis and bracketed material added) that
``destruction of the flag * * * can [but need not] be intended to
incite a violent response rather than make a political statement and
such conduct [presumably meaning by `such conduct' only such conduct as
is indeed intended to incite a violent response and not intended to
make a political statement] is outside the protections afforded by the
first amendment * * *'' As thus understood (i.e., understood as aided
by the words I have placed in brackets), the subsection is not
necessarily inaccurate as a strict first amendment matter.
---------------------------------------------------------------------------
4. Subsection (a)(3) of Sec. 2, separately declares that ``abuse of
the flag * * * may amount to fighting words,'' which doubtless is true
(i.e., it may, just as the provision thus also equally acknowledges,
however, that it may not.) To avoid constitutional difficulties--
difficulties that would arise from any broader understanding of this
provision--it would be appropriate to interpret this provision merely
to declare that abuse of the flag may be a means chosen deliberately to
provoke a violent reaction and if undertaken just for that purpose
then--as in the instance of ``fighting words'' (e.g., when ``fighting
words'' are themselves used not as a form of political statement but,
rather, in order to provoke a violent reaction)--it is the author's
understanding that such conduct when intended to incite a violent
response rather than to make a political statement is outside the
protections afforded by the first amendment. Again, taken this way, the
observation may be substantially correct--but in being correct, it also
covers very little ground.6
---------------------------------------------------------------------------
\6\ (See discussion infra in text at II.)
---------------------------------------------------------------------------
B. Necessarily, all of this should mean 7 that even if
the circumstances were such that violence (or a breach of peace) could
reasonably be expected to result as a consequence of the defendant's
actions, so long as it was not his primary purpose or intent to induce
or incite it--when he burned or destroyed a flag 8--he is
not to be subject to any penalty under this law. Specifically, if this
is correct, all merely ``reactive'' violence--violence not sought as
the immediate object by the defendant (who burns a flag as a political
statement or as a public, politically demonstrative act of protest) but
violence by those who, say, are but observers or passersby made angry
or indignant by what they regard as outrageous behavior by him, for
example, is thus not to be utilized as sufficient reason to seek his
imprisonment rather than theirs.--Or so, at least, I believe the
statute can be interpreted to provide. And if (and probably only if) it
is so interpreted as I believe it thus can be understood, I think it
will survive in the courts.9
---------------------------------------------------------------------------
\7\ And to avoid first amendment objections, must probably be
construed to mean * * *
\8\ Whether as ``a political statement'' or for any other purpose *
* *
\9\ As thus construed and applied, it may meet the test provided in
Brandenburg v. Ohio, 395 U.S. 444, 447 (1969) (``[Our decisions] have
fashioned the principle that the guarantees of free speech * * * do not
permit a State to forbid or proscribe advocacy of the use of force or
of law violation except where such advocacy is directed to inciting or
producing imminent lawless action and is likely to incite or produce
such action.''). If such ``advocacy'' (i.e., such ``speech act'' as one
engages in) is directed to ``inciting or producing'' imminent lawless
action (and is ``likely to incite or produce such action''), on the
other hand, the Court plainly implies that ``the guarantees of free
speech'' do not immunize one from arrest or from prosecution under a
suitably framed, properly applied law.
---------------------------------------------------------------------------
ii
The vast majority of all instances when the American flag has been
used in some fashion others find offensive (and some may be inclined to
react to in ways involving violence or a breach of the peace) have been
so overwhelmingly merely an inseparable part of some kind of obvious
political statement, however, that a criminal statute reaching such a
use of the flag (including defacing or burning a flag) only when
``primarily * * * intended to incite a violent response rather than
[to] make a political statement,'' will cover very little. For example,
so far as I can determine, it will cover no instance of public flag
``desecration'' of any of the many (allegedly) offensive kinds of
``flag abuse'' that have been a fairly commonplace feature of our
political landscape during the past fifty years in point of fact. And
unless these past practices suddenly take a different turn, therefore,
whatever the pretensions of the sponsors of the bill might be, there
will be little or no real work for this proposed act to do.\10\
---------------------------------------------------------------------------
\10\ Moreover, to the extent there is any such useful work, such as
it might be thought to be, it would be largely merely redundant of what
is already subject to a multitude of state and local criminal laws--
laws that already reach incitement to riot, violence, or breach of the
peace, whether or not it involves torching a flag. Nor is there any
reason at all to believe that any of the states--all of which already
have such laws--are either unable or unwilling to bring the full force
of any such merely standard criminal statutes to bear when any actual
case would arise of a kind any of these criminal statutes can validly
reach. In brief, this is simply not a subject where state or local law
enforcement authorities lack encouragement or means to apply the
regular force of applicable state criminal law, nor do I think the
sponsors of the bill could readily provide examples of such local or
state prosecutorial laxity. Far from this being the case, quite the
opposite tends to be the rule-prosecutorial zeal in this area is surely
the more usual response. The ``need'' for some overlapping, largely
duplicative, criminal statue by Congress in this area, in short is thus
far from clear.
---------------------------------------------------------------------------
But permit me to get quite specific about this last observation,
since it may seem counterintuitive. Still, there is frankly no question
that this observation is fully applicable, by way of example, both to
the events involved in Texas v. Johnson \11\ and to those also involved
in United States v. Eichman,\12\ which events and cases previous bills
(and now this bill) were evidently meant to respond to in some fashion,
but that this bill could by its own terms not affect at all.\13\ And I
press this observation, because precisely to the extent the bill has
been drafted--and can be construed--to avoid the constitutional
infirmities of prior, failed ``flag protection'' acts--by being very
narrowly drawn as the sponsors have striven to do, it merely indicates
limitations in no way reflecting on its drafters, but merely what the
First Amendment itself protects--and will continue to protect unless
itself altered, amended, or abridged.
---------------------------------------------------------------------------
\11\ 491 U.S. 397 (1989).
\12\ 486 U.S. 310 (1990).
\13\ Indeed, however, the observation is fully applicable as well
to virtually every other case the Supreme Court and indeed the lower
courts have had occasion to consider during the past fifty years,
involving politically controversial uses of the flag. Some of these are
discussed infra in the text.
---------------------------------------------------------------------------
A. So, for example in Texas v. Johnson, Justice Brenan begins the
Opinion for the Court by expressly noting that Johnson was convicted
for publicly burning an American flag,\14\ but strictly as an
expressive part and feature of a public and political demonstration,
neither more nor less, as Justice Brennan expressly observed in the
opening sentence of the Court's Opinion in the case.\15\ Indeed, it was
this fact--that the particular acts of the defendant were so entwined--
that brought the first amendment to bear, and it also this fact that
served as the basis of the Court's decision reversing his conviction--
nor would the proposed bill apparently affect the case in any way at
all.\16\ As Justice Brennan also noted in the case,\17\ while ``several
witnesses testified they were seriously offended by the flag-burning,''
it was also clear that ``[n]o one was physically injured or threatened
with injury'' by anything Johnson said or did, including (among the
things he did) burning a flag.
---------------------------------------------------------------------------
\14\ (--For which he was promptly prosecuted under the relevant
Texas statute punishing acts of physical desecration of venerated
objects including the American flag as one such object, ultimately and
successfully appealing that conviction to the Supreme Court.)
\15\ 491 U.S. 397, 399 (1989).
\16\ Johnson was not arrested or prosecuted for ``inciting, or
attempting to incite, a riot or violence,'' nor is there any reason to
think he would not have been charged with that offense had the
arresting officers believed there were suitable grounds (rather there
was simply no evidence that this was his intent--to incite or to
provoke a riot--in burning the flag in a public plaza--as an incident
of expressing bitter feelings for ongoing proceedings in the Republican
Convention then in progress, in Dallas).
\17\ 491 U.S. at 399.
---------------------------------------------------------------------------
B. Next, when this Congress nevertheless reacted to the furor
created by the Supreme Court's decision in Texas v. Johnson, by
enacting the Flag Protection Act of 1989 (as I and others urged it at
the time not to do and testified would not withstand constitutional
scrutiny consistent with the Court's decision in Johnson), that act in
turn was at once tested by individuals who protested that act's
enactment by very publicly burning flags in demonstrative opposition to
the act itself.\18\ In reviewing the several convictions obtained in
the lower courts (under the new act of Congress) in both these cases,
the Supreme Court at once did all of the following: (a) It expressly
affirmed its decision in Johnson; (b) applied it to these cases (which
had been brought to it for prompt review of those convicted under the
new act of Congress); (c) reversed both convictions; and (d) held the
act unconstitutional as applied.\19\
---------------------------------------------------------------------------
\18\ In one instance the defiance of Congress's handiwork was
demonstrated very publicly indeed, specifically, as noted in the
Court's subsequent Opinion, by several persons who ``knowingly set fire
to several United States flags on the steps of the United States
Capitol while protesting various aspects of the Government's domestic
and foreign policy'' and virtually simultaneously by others, ``by
knowingly setting fire to a United States flag in Seattle while
protesting the Act's passage.'' (See United States v. Eichman, 496 U.S.
310 at 312 (1990).
\19\ United States v. Eichman, 496 U.S. 310 (1990).
---------------------------------------------------------------------------
Nor--and here's the immediate point to which these observations are
meant to be pertinent--do I read or understand the provisions of the
proposed bill, S. 1335, as presuming to try to dictate a different
result in any case involving similar facts and acts as were all present
in these cases--for, indeed, if it did, presumably, the outcome would
once again be the same--the acts as thus applied (were it thought to
apply) would be unconstitutional as applied unless the Court itself is
prepared simply to overrule itself as there is no reason to think it
would should.
C. And again, in still a different case, in Spence v.
Washington,\20\ the alleged criminalized misuse of a flag consisted of
defendant's effrontery in having presumed to tape a peace symbol onto
the face of a flag--thus ``defacing'' it--which flag he then displayed
(as a political demonstration of his views) outward from the windows of
his apartment for public view. Here, again, the Supreme Court reversed
the conviction (a conviction obtained under a state law forbidding such
defacing and public display of a flag). It reversed that conviction
``on the ground that as applied to appellant's activity the Washington
statute impermissibly infringed protected expression.'' \21\
---------------------------------------------------------------------------
\20\ 418 U.S. 405 (1974).
\21\ Id. at 406.
---------------------------------------------------------------------------
In brief, here, too, the facts involved a politically expressive
use of a physical flag, not burned, but nevertheless altered in a
manner the state forbade, and then publicly displayed, as Spence saw
fit to do. Moreover, that Spence's uses of his flag in this way may
have offended others (as indeed it did), or may have motivated some
even to want to act against him in some way, was neither here nor
there. As the Court itself observed in Spence.\22\ ``We are unable to
affirm the judgment below on the ground that the State may have desired
to protect the sensibilities of passersby. `It is firmly settled that
under our Constitution the public expression of ideas may not be
prohibited merely because the ideas are themselves offensive to some of
their hearers.' ''\23\
---------------------------------------------------------------------------
\22\ Id. at 412.
\23\ And in Spence, note, too, that the Court had also declared:
``Nor may appellant be punished for failing to show proper respect for
our national emblem [citing still previous decisions of the Court].''
There was no novelty in any of this. The Court has for decades made it
perfectly plain that the first amendment protected uses of flag (e.g.,
incidental to political demonstrations) were not to made subject to any
offended person's veto; nor may the state use the disturbance of the
peace, much less the threat of riot, by persons affronted or made angry
over one's provocative use of first amendment rights (including flag
uses) as a justification to arrest the person exercising those rights.
See, e.g., R.A.V. v. City of St. Paul, 112 S.Ct. 2538 (1992); American
Booksellers v. Hudnut, 771 F.2d 323 (7th cir. 1985), summarily aff'd,
475 U.S. 1001 (1986); Houston v. Hill, 482 U.S. 451 (1987); People v.
Cohen, 403 U.S. 15 (1971) (``[T]he issue is whether California can
excise as `offensive conduct,' one particular scurrilous epithet from
public discourse, either upon the theory * * * that its use is
inherently likely to causes violent reaction or upon a more general
assertion that the State, acting as guardian of public morality, my
properly remove this offensive word from the public vocabulary. * * *
The argument amounts to little more than the self-defeating proposition
that to avoid physical censorship of one who has not sought to provoke
such a response by a hypothetical coterie of the violent and lawless,
the State may more appropriately effectuate that censorship
[itself].''); Rosenfield v. New Jersey, 408 U.S. 901 (1972); Lewis v.
New Orleans, 408 U.S. 913 (1972); Brown v. Oklahoma, 408 U.S. 914
(1972); Gooding v. Wilson, 405 U.S. 518 (1972); Terminiello v. Chicago,
337 U.S. 1, 4 (1949) (``[A] function of free speech under our system of
government is to invite dispute. It may indeed best serve its high
purpose when it induces a condition of unrest, creates dissatisfaction
with conditions as they are, or even stirs people to anger.'') Cantwell
v. Connecticut, 320 U.S. 296 (1940). See also Skokie v. National
Socialist Party, 373 N.E.2d 21 (III. 1978).
---------------------------------------------------------------------------
D. The just-quoted portion of Spence, moreover, was itself taken
from a still earlier ``flag-abuse'' case, itself once again, however,
also involving a political demonstrative destruction (burning) of a
flag on the public street, with the defendant's conviction once again
reversed on First Amendment grounds. In Street v. New York,\24\ as in
each of these other real cases, it was plain on the facts that the
incident was one involving the public expression of political feelings
(nor was there any evidence that Street presumed to burn a flag when
and as he did to incite lawless action either against himself or anyone
else). Indeed, however, I have found no case at all where it was plain
that the ``destruction of the flag of the United States'' was in fact
``intended to incite a violent response rather than make a political
statement,'' \25\ so lift it out from First Amendment protection, much
less any that appear to meet the full requirement of the act.
---------------------------------------------------------------------------
\24\ 394 U.S. 576 (1969).
\25\ Whether or not by means one could expect to stir some to
resentment or anger (that it may do so does not in any degree make it
less of a means of making a political statement on that account).
---------------------------------------------------------------------------
iv
Briefly Then To Sum Up: Unless the critical provision of the act
is applied more broadly than a tightly constrained construction would
approve \26\--
---------------------------------------------------------------------------
\26\ In which event, if it is given any significantly broader sweep
it is likely to be held unconstitutional (even as Professors Presser
and Cassell suggested).
---------------------------------------------------------------------------
(a) If thus construed (as it can be construed) to apply only in
circumstances consistent with the requirements of Brandenburg v. Ohio,
within that restricted field of application, it may well be sustained
in the Supreme Court;
(b) However, as thus very tightly constrained, it will not reach
many--possibly not any--of the various kinds of ``flag burning'' cases,
or other ``flag desecration'' or ``flag abuse'' cases involving
varieties of political expression political demonstrations previously
held by Supreme Court to be protected by the First Amendment.
(c) Moreover, the cases it--the act--may clearly reach without
substantial risk of being held unconstitutional as applied, are cases
involving acts already so subject to such criminal penalties (e.g., for
incitement to violence or riot) as state and federal criminal law
already cover, as to raise as a fair question respecting the need for
or propriety of this legislation at all. And in brief, if this is so,
one must finally ask, just what is there, if anything, of a
constitutionally proper concern, that is honestly sought to be served
by the act?
v
I am frankly unable to answer this last question I have just posed,
and may be forgiven a reluctance to speculate. Yet, whatever it is, it
will be most unseemly, I cannot help but believe, that Congress may
exhibit no equal interest in bringing to bear the full impact of harsh
national criminal sanctions against anyone mistreating the flags of
other nations in demonstrations of protest as may occur in this
country, as Congress appears so willing to provide for our own. But
evidently this is what some in Congress appear eager and willing to do.
Again, however, I cannot imagine why.
Yet, if so, is this, then, finally to be the example of ``liberty''
and of ``freedom'' we now mean to broadcast to the world?--That
Americans are free to burn the English Union Jack, or despoil the
French Tricolor, or trample the flag of Canada, South Africa, Iraq,
Pakistan, India, or Mexico, as they like, in messages and
demonstrations of discontent or protest as they may freely occur in
this country, but assuredly not (or not so far as this Congress will be
given license by the Supreme Court to prevent it) so to make any
equivalent use of our own? And indeed that this is how we now want to
present ourselves to the world?
But I would hope, Senator Hatch, that you and your colleagues would
think otherwise, and that you will conclude that to ``wrap the flag''
in the plaster casts of criminal statutes in this way--as this and
virtually every similar bill \27\ seeks to do--would be a signal
mistake. Its occasional burning, utterly unattended by arrest, by
prosecution, by sanctions of jail and imprisonment, is surely a far
better tribute to freedom than that it is never burned--but where the
explanation is not that no one is ever so moved to do (we know some
are) but are stayed from doing to by fear of being imprisoned, as some
would seek to have done. That kind of inhibiting fear is merely the
example even now, half-way around the world. It is furnished in a place
called Tianamen Square. It is a quiet, well-ordered place.\28\ But
Tianamen Square is not what ought to appeal to us--it is but a quietude
of repression, it has a desuetude of fear, it is a place occupied by
the harsh regime of criminal law. It furnishes no example whatever of a
sort we should desire to emulate or pursue.\29\
---------------------------------------------------------------------------
\27\ And even some proposed amendments to the Constitution itself
\28\ No one would dare burn the national flag of the The Peoples'
Republic, not now, not in Tianamen Square.
\29\ The better contrasting example we should desire to furnish,
surely, is to be found in the compelling remarks by Thomas Jefferson in
his own first Inaugural Address. It was Jefferson's straightforward
view that--
``If there be any among us who would wish to dissolve this union
or change its republican form, let them stand undisturbed as monuments
of the safety with which error of opinion may be tolerated where reason
is left free to combat it.''
---------------------------------------------------------------------------
So, I hope in the end that you and your colleagues may come to
believe the flag of the United States is not honored by putting those
who ``abuse'' it, whether in some egregious or in some petty incendiary
fashion, in prison or in jail. Rather, let us regard them even as
Jefferson spoke more generally to such matters in his first Inaugural
Address,\30\ leaving them ``undisturbed as monuments of the safety with
which error of opinion may be tolerated where reason is left free to
combat it,'' as surely is true.
---------------------------------------------------------------------------
\30\ (See quotation supra, n. 29.)
---------------------------------------------------------------------------
Sincerely,
William Van Alstyne.
__________
Harvard Law School,
Cambridge, MA, April 21, 1999.
Senator Orrin Hatch,
U.S. Senate,
Washington, DC.
Dear Senator Hatch: I want to thank you again for inviting me to
appear at yesterday's hearing on the constitutional amendment restoring
congressional authority to protect the American flag. I am especially
grateful for your graciousness to the witnesses on both sides of the
issue.
I would like to take this opportunity, if I may, to expand on my
answer to one question you asked me--the one about the ``Guidelines for
Constitutional Amendments'' promulgated by a group that calls itself
``Citizens for the Constitution.''
As said yesterday, I am familiar with this group. I participated in
two of its meetings--one public, one private--held at Harvard Law
School. I have general views about its ``Guidelines'' project as well
as particular views about application of the ``Guidelines'' to the flag
amendment.
the ``guidelines'' in general
Three general features of the ``Guidelines'' project are striking.
(1) The ultimate and authoritative guidelines for amendment of the
Constitution are set forth in the document itself. On one hand, Article
V prescribes the requisite supermajority votes required of specified
representative institutions. And, on the other, the Preamble makes
clear that the ``sovereign'' to which representative institutions in
the federal government are responsible is ``We, the People.'' It
follows that, in the end, the crucial guideline for congressional
referral of a proposed constitutional amendment to the state
legislatures is the will of the people--a will that is sustained, over
some time, by more than a bare majority among them. Of course, anyone
is free to try to persuade the people (and their representatives) to
support or oppose a particular amendment. What's more, anyone is free
to advocate general ``guidelines'' for amendment going beyond the
democratic ones set forth in the Constitution--just as anyone is free
to advocate general ``guidelines'' that ought to be met by social
welfare legislation or health care legislation. But the job of
Congress, I would assume, is to vote up or down on each proposal and to
do so as representatives of the people, not as devotees of anyone's
extra-constitutional ``theory.''
(2) The eight ``guidelines'' advocated by the Citizens for the
Constitution are platitudes. Although (as I have indicated) they should
not be viewed as requirements, who could disagree, in the abstract,
that they are, at least, relevant considerations? Indeed, they are so
commonplace and vaporous as to make one wonder why anyone would imagine
Congress needs to be informed of their relevance. The question is: What
are the drafters of the ``guidelines'' afraid of?
(3) The overall emphasis in the Introduction to the ``guidelines''
and in the ``guidelines'' themselves is on ``self-restraint'' and on
fear that ``self-restraint may be breaking down'' among elected
representatives--rather than on responsiveness to the people. The bias,
indeed, is in favor of ``amendment'' of the Constitution by unelected
people wearing black robes--rather than by elected representatives as
was plainly intended by Article V. The Citizens for the Constitution
may talk of the value of ``stability.'' But they seem unconcerned about
instability produced by constant changes in constitutional meaning
accomplished by a majority--often a mere 5-4 majority--of the Supreme
Court. What they are afraid of--and what their scare rhetoric seeks to
stir up fear of--is ``We the People.''
The ``guidelines'' thus seek to entrench the status quo, the
judicially determined status quo. There was a similar effort--also led
by prestigious members of the bar--early in this century. Then,
prominent lawyers and law professors sought to entrench a judicially
determined status quo--the common law--against social welfare and
regulatory reform by legislatures. Then, too, they mobilized abstract
platitudes in service of ``stability.'' But, then, it was progressives
who exposed and opposed their effort to stymie democratic government.
Where are the self-styled ``progressives'' today? It seems (as an
active Democrat I'm sorry to say this) that a number of them have taken
up the old across-the-board stance against change and democracy.
the ``guidelines'' as applied to the flag amendment
As abstract platitudes, the ``guidelines'' are susceptible to use
as wise-sounding wrapping around conclusory assertions--what I describe
to my students as ``reasoning by harrumphing.'' Thus a standpatter can
cite one of them and simply say, ``I'm concerned [or worried] about
that.'' I am confident the Senate will not settle for such a parody of
debate. And, once citation of the ``guidelines'' is made a subject of
clear-headed point-by-point debate, I am confident that the Senate will
see that, as applied to the flag amendment, the ``guidelines'' are in
fact fully satisfied.
Let me go through the eight ``guidelines'' in order.
(1) ``Abiding Importance'' In my testimony, I took pains to
emphasize that what is at stake here is not a matter of ``immediate
gratification'' or of opposition to a particular series of flag-
burnings. Rather, I said, it is about restoring the power of Congress
to preserve a vital national resource, a resource that is invisible but
no less real for that--respect for the ideal of national community,
uniquely symbolized by the flag. This resource was long taken for
granted, but is being eroded not by the ``malcontents'' who trash the
flag, but by the 5-4 Court decision that ``amended'' the First
Amendment to legitimate the trashing and by the failure of the rest of
us to correct that mistake decision. Our children, or our children's
children, eventually may not even remember what this eroded resource
was, much less have access to it. If that happens, they will be the
poorer, since any great military or domestic project depends on it and
since, as I said, liberty that lacks a foundation in community rests on
a foundation of sand. What is at stake, then, is the kind of America we
leave to future generations, obviously a matter of ``abiding
importance.''
(2) Making ``Our System More Politically Responsive or Protect[ing]
Individual Rights'' The flag amendment restores to Congress power to be
responsive to a sustained value-commitment of most of the American
people. It was the 5-4 Court decision that ``amended'' the
Constitution, after two centuries, to block such responsiveness. The
majority of the Court did not ``protect'' an individual ``right.'' It
concocted a new one. By the same token, the Court did not ``protect'' a
``powerless minority.'' For the right of a minority to express its
views in any number of ways (by words and by acts) has long been
guaranteed and is not affected by the proposed amendment. If, however,
long-recognized free speech rights are to be maintained in the future--
if free speech is not to turn into a contest to see who can yell
loudest--respect for American community-despite-diversity must be
maintained. That is the aim of this amendment. Hence, this amendment
protects individual rights.
(3) Exhaustion of ``Other Means'' In 1989, Congress went the extra
mile and against good advice, tried a statutory alternative to an
amendment. It was slapped down immediately by the 5-4 Court majority.
It is now perfectly clear--as I demonstrated in my letter to you of
March 10--that there is absolutely no alternative. All ``other means''
have been thoroughly exhausted.
(4) Consistency With ``Related Constitutional Doctrine That the
Amendment Leaves Intact'' The flag amendment is more narrowly and
sharply focused then any under consideration in the last two decades.
It is designed specifically to correct one and only one mistaken
``interpretation'' of the First Amendment by five Justices in 1989 and
1990. It would restore to the First Amendment the meaning it was
understood to have for the two centuries before 1989. Plainly, then, it
is perfectly consistent with all other free speech doctrine, that which
existed along with it before 1989 and that which has been elaborated
since then. Thus, contrary to bizarre speculation in the statement by
the Acting Assistant Attorney General, the void-for-vagueness doctrine
and the doctrine of the R.A.V. decision would not be affected in any
way. A statute enacted under the amendment would have to pass muster
under both--that is, it could not be excessively vague (and the Flag
Protection Act of 1989, drafted with much expert advice, was not) and
it could not discriminate among particular points of view of those who
physically desecrate the flag in a fashion specified by the statute
(and the Flag Protection Act of 1989 does not). What is most peculiar
is that opponents of a restorative (as opposed to a transformative)
amendment try to depict it as ``inconsistent'' with surrounding
doctrine--or as an ``amendment of the Bill of Rights''! Obviously, this
is utterly false.
(5) ``Enforceable Standards'' Being so narrowly and sharply
focused--and being intended to restore authority that the Congress
exercised for most of this century and, in particular, to validate the
Flag Protection Act of 1989--there can be no legitimate issue on this
count. Terms in provisions of the Constitution are interpreted in
context. And, in this case, there is a long-standing context and
practice by which to read the terms ``physical desecration'' and
``flag.''
(6) ``Think[ing] Through and Articulat[ing] Consequences'' For the
last ten years--and particularly for the last five--we have considered
consequences of adopting the flag amendment. There is no issue on this
count. What is odd, again, is that anyone would raise it with respect
to a proposed amendment that restores--rather than transforms--the
long-understood meaning of the Constitution.
(7) ``Full and Fair Debate'' Everyone recognizes that the debate
over this amendment has been as ``full'' and ``fair'' as a debate could
possibly be.
(8) ``Ensur[ing] a Contemporaneous Consensus'' It is, of course, up
to Congress whether to set a deadline for ratification of an amendment
and, if so, what deadline. In this case, however, there is little
problem of ensuring a ``contemporaneous consensus.'' Already, the
legislatures of 49 states have memorialized Congress urging it to send
the flag amendment of them, pursuant to Article V. It is as likely as
can be that they will act on it promptly once it is sent to them.
At the hearing yesterday, we were criticized for having ``chosen''
the ``mechanism'' of constitutional amendment. It was, however, the
framers who ``chose'' it. And for good reason. Article V is the
keystone of the authority of the Constitution. It guarantees that--
despite short-sighted efforts by some to entrench a judicially
determined status quo--the Constitution will remain the property of
``We the People.''
Sincerely,
Richard D. Parker,
Williams Professor of Law.
__________
The University of Utah,
Salt Lake City, UT, March 11, 1999.
Re: proposed criminal statute on flag protection.
Senator, Orrin G. Hatch,
Chairman, Senate Judiciary Committee,
Washington, DC.
Dear Senator Hatch: Thank you for your recent inquiry about the
constitutionality and practicality of the Flag Protection and Free
Speech Act, a proposed federal criminal statute prohibiting flag
burning in certain narrowly-specified circumstances. I understand your
inquiry to request information primarily about section (a) of the
statute, which would provide federal criminal penalties for any person
``who destroys or damages a flag of the United States with the primary
purpose and intent to incite or produce imminent violence or a breach
of the peace, and in circumstances where the person knows it is
reasonably likely to produce imminent violence or a breach of the
peace.'' Sections (b) and (c), prohibiting theft of flags belonging to
the federal government or on federal property, do nothing other than
duplicate existing laws.
Under current Supreme Court doctrine, section (a) has grave
constitutional difficulties and would, in all likelihood, be
invalidated by the Court were a case to present the issue. Two serious
challenges can be raised. First, as you are well aware, the Supreme
Court in several recent cases has emphasized that Congress must not
tread on the powers reserved for the states. Thus, in United States v.
Lopez, 514 U.S. 549 (1995), the Court declared unconstitutional the
federal Gun-Free School Zones Act, which made it a federal crime to
possess a firearm in or near a school. The Court explained, ``[t]he
possession of a gun in a local school zone is in no sense an economic
activity that might through repetition elsewhere, substantially affect
any sort of interstate commerce.'' Id. at 567. The same kind of
challenge can be raised to proposed anti-flag burning provision. It
essentially criminalizes breach of the peace throughout the states
whenever that breach relates to a flag. It is unclear what power
Congress could use to justify this extension of the federal criminal
law.
The statute is also, of course, open to serious challenge under the
Supreme Court's opinions striking down two previous criminal statutes
prohibiting flag burning. As is well known, in Texas v. Johnson, 496
U.S. 310 (1990), and again in United States v. Eichman, 496 U.S. 310
(1990), the Supreme Court by the narrowest of margins declared
unconstitutional statues that singled out the flag for special
protection. The five-member majority in Eichman explained that, in
seeking to protect the flag, ``the Government's asserted interest is
related to the suppression of free expression.'' 496 U.S. at 315
(internal quotations omitted). This principle demonstrates that the
third time will not be the charm in surviving Supreme Court review. The
proposed statute's express goal--the protection of the flag--is that
which the Court has found to be constitutionally impermissible. It
makes no difference that the proposed statute is narrowly drawn so as
to cover only destruction of the flag with the intent to produce
violence or a breach of the peace. The fact remains that the statute's
animating concern is for the ``flag's symbolic value,'' 496 U.S. at
317, something that the current Court will not permit. Indeed, the
narrowness of the provision's reach only renders it more susceptible to
attack. In a separate line of cases, the Court has explained that
``selective limitations upon speech'' are subject to First Amendment
attack. See, e.g., R.A.V. v. City of St. Paul, Minn., 505 U.S. 377, 392
(19912). Nothing could be more ``selective'' than a statute that
singles out for criminal sanction, among all forms of breach of the
peace, those involving flag desecration.
All of this strongly suggests that the proposed statute would not
survive constitutional challenge in the Supreme Court. It is open to
question, however, whether a conviction under the statute could ever be
obtained without the virtual consent of a defendant. The statute covers
those who act with the ``primary purpose and intent'' of producing
``imminent violence or a breach of the peace.'' As a former federal
prosecutor, I find it hard to imagine a case of flag burning that would
fall within these terms--much less one that could be proven beyond a
reasonable doubt to do so. Perhaps if the statute were adopted, a
person hoping to be the Supreme Court test case would obligingly
announce that his purpose is to provoke such a breach of the peace. It
is debatable whether such a prosecution would truly involve a ``case or
controversy'' under the Constitution eligible for Court review. Other
than such contrived situations, virtually no case of flag desecration
would be prohibited by the provision.
As I understand the intent of the drafters of the provision, it was
to demonstrate ``zero tolerance for those who deface our flag'' by
providing ``swift and certain punishment'' for flag desecration. 41
Cong. Rec. S15338 (Oct. 19, 1995) (statement of Sen. McConnell). The
statute plainly will not achieve these goals. The only way to truly
protect our nation's national symbol is to pass a constitutional
amendment, as the overwhelming majority of the nation's citizens
desire. Such a step would be no innovation, nor would it pose a threat
to recognized freedoms. Until the recent decisions of the Supreme
Court, it was generally accepted that statutes criminalizing the
desecration of the flag were consistent with our constitutional history
and traditions. I hope that the Congress will move swiftly to restore
this conventional understanding.
Sincerely,
Paul G. Cassell,
Professor of Law.
__________
Congressional Medal of Honor Society, United States
of America,
Olympia, WA.
``what the flag means to me''
As a young man I was exposed to some history of our flag by our
Scout Master, Mr. Robert Timkala. This was a very short dissertation
concluded with honor your flag. As an adult I have cherished his words
and followed his direction and I fly the American Flag at my home and
place of business every day. This represents to me the strength of our
country as it protects all of the citizens and much of the free world.
The raising of the flag on Iwo Jima represented the successful
conclusion of the massive task in World War II, the honor and pride I
have in this symbol of our great nation and should not be reduced in
any manner.
Sincerely,
Robert E. Bush, C.M.H.,
Past President, Medal of Honor Society.
__________
Remarks of Ray Davis on Behalf of Maj. Gen. Patrick Brady
Consider all those legions of young Americans who stood tall when
our flag was near and then gave their lives to defend it.
Recall Fort McHenry in September, 1814, where our gallant defenders
withstood 25 hours of bombardment from enemy ships, then repelled a
landing force as they refused to lower our flag. That flag inspired our
national anthem.
Permitting the desecration of our flag will invite conflict. Teams
of fighters will be formed to extinguish any burning flag, fight any
desecration and encourage respect for our flag--all under the stretched
definition of ``speech''.
__________
April 29, 1997.
No one loves liberty more than those who lose it and lose it for a
long time. I was shot down on August 26, 1967 * * * captured, escaped,
and was recaptured some two weeks later. I spent 38 months of my 67
months in solitary * * * where I had the time to sort out what is
important, and what is not. I started my daily regimen by first saying
the pledge of allegiance to the flag, then reciting the lord's prayer,
and then praying for my family.
The reason for doing it in that order was that I knew above all
other things that my country would never desert me * * * and it was of
utmost importance that I not desert my flag! She was my link to
civilization.
When we were moved into joint living with about 40 other people, I
was the commander. I ordered my troops to face to the East every
afternoon to say the pledge of allegiance. This motivated one of my
junior officers (Mike Christian) to craft a home-made flag from scraps.
He sewed it inside of his shirt, and at pledge time, he would turn the
shirt wrongside out, hang it on a line * * * and we would say the
pledge and render a hand salute. It was the best time of every day.
At one of the shakedown inspections, the commies found the flag.
They brutally dragged Mike out and we could hear them beating him for
hours. He came back that nite with broken ribs, and his face battered.
They broke his ribs * * * but not his spirit. A few days passed and
Mike approached me. He said: ``Major, they got the flag * * * but they
didn't get the needle I made it with. If you agree * * * I'm making
another flag!''
My answer was * * * ``Do it!''
It was several weeks before we had another homemade flag * * * but
he finished it.
There was never a day from that day forward that the stars and
stripes did not fly in my room, with 40 American pilots proudly
saluting! What we guaranteed to 40 American prisoners should be the
minimum guarantee for the entire United States.
God bless U, and God bless your efforts.
Col. Bud Day, MOH-AFC,
POW 1967-1973.
__________
April 24, 1997.
Per your request, here are some of my thoughts on what the flag
means to me.
A few days ago I went to a friend's wake service. There in his
casket, in front of the church for all to see was a neatly folded
United States flag, given to the family from a grateful nation. Ray was
a veteran and had served his country honorably.
I couldn't help but think, would the flag mean as much to the
family of a deceased veteran or to any American if we allow people to
burn, spit and whatever else they do in the name of ``Freedom of
Speech''. As a veteran myself, I am sick of it, and feel the flag
should be protected for future generations.
Sincerely,
Michael J. Fitzmaurice, CMH.
__________
Fraternal Order of Police, National Legislative Program,
Washington, DC, April 13, 1999.
Hon. Orrin Hatch,
Chairman, Senate Committee on the Judiciary,
U.S. Senate, Washington, DC.
Dear Mr. Chairman: I am writing this letter on behalf of the more
than 277,000 members of the Grand Lodge, Fraternal Order of Police to
advise you of the strong support of S.J. Res. 14, which would amend the
Constitution to give Congress the power to prohibit the physical
desecration of our nation's flag.
Attempts by the Congress to protect the flag statutorily have
failed to withstand judicial review. The Supreme Court has, in two
narrow 5-4 decisions, overturned statutes prohibiting physical
desecration of the flag. Amending the Constitution is the only way to
return to the American people the right to protect their flag.
Flag burning is not free speech; it is an act of vandalism--a hate
crime, pure and simple. What is the difference in the political
statement made by a vandal torching the American flag and a terrorist
who makes his political statement by blowing up government buildings?
Quite simply, there is no difference. The American people recognize
that, and Congress ought to recognize it by passing this amendment.
When we bury a hero, a brother or sister from the ranks of our
military or our police departments, a flag is draped over the coffin.
It is folded solemnly and presented to the surviving members of the
family in remembrance of the one who gave his or her life. Whether a
soldier fighting a foreign enemy on a foreign shore, or a police
officer killed in the line of duty--the sacrifice of each is symbolized
by the flag. To desecrate this symbol is to dishonor that sacrifice. To
use freedom or liberty as a shield to commit a crime is no more than
base cynicism and a very real miscomprehension of the American concept
of liberty.
I salute you, Mr. Chairman, for your sponsorship of Senate Joint
Resolution 14, and join you in urging all members of the United States
Senate to protect our flag from those who would dishonor our nation and
its heroes.
If we can be of any further assistance to you in moving this bill
forward, please do not hesitate to contact me or Executive Director Jim
Pasco at my Washington office.
Sincerely,
Gilbert Gallegos,
National President.
__________
B/G Pat Brooks, Chairman of the Board
What the Flag Means to Me.
The American Flag means I can go anywhere I want to go. I fought
for the American Flag and the United States of America.
We won the victory when we was fighting in Korea. It was for the
Red, White and Blue Flag, and the United States of America.
God Bless you all.
Rodolpho ``Rudy'' P. Hernandez.
__________
The American Legion,
Washington, DC, April 14, 1999.
Hon. Orrin Hatch,
U.S. Senate,
Washington, DC.
Dear Senator Hatch: On behalf of the 4 million members of the
American Legion family, I want to personally thank you for sponsoring
SJR 14, the Flag Protection Constitutional Amendment. We truly realize
how important passage of this amendment is to the future of our
children. It is imperative that we return to the American people the
right to protect the U.S. Flag. I can assure you that Legionnaires and
their families will do everything possible throughout our great nation
to assist you in getting SJR 14 passed this year.
The majority of Americans support this amendment. Polling during
the past 10 years has consistently shown nearly 80 percent of voters
believe protecting the U.S. Flag through a constitutional amendment is
the right thing to do. They do not believe such protection is a threat
to freedom to speech.
I am certain you were as touched as I in reading the reports of our
stealth pilot rescued from Yugoslavia. He carried an American flag,
folded under his flight suit. The flag was given to him by an airman
before he took off from Aviano Air Base in Italy. Following his rescue
the pilot told reporters, ``For me, it (the flag) was representative of
all the people who I knew were praying. It was a piece of everyone and
very comforting. It helped me not let go of hope. Hope gives you
strength * * * it gives you endurance.''
My heart also swelled with pride when I saw an Associated Press
photo of a flyer from the 31st Air Expeditionary Wing at Aviano waving
an American flag to boost morale as U.S. war planes prepared to launch
another series of strikes in support of NATO's Operation Allied Force.
The U.S. Flag is a powerful symbol. A living symbol of our great
nation. Providing a special place in the U.S. Constitution that
protects our flag is what Americans want and deserve.
I stand ready to assist you in any way that will help assure
passage of this amendment. I know that your encouragement of your
fellow Senators will make the crucial difference.
Thank you again for your sponsorship of SJR 14.
Sincerely,
Harold L. ``Butch'' Miller,
National Commander.
__________
The American Legion,
Indianapolis, IN, April 23, 1999.
Hon. Orrin Hatch,
U.S. Senate,
Washington, DC.
Dear Senator Hatch: On September 5, 1989, American Legion delegates
at the National Convention in Baltimore, Maryland, unanimously adopted
a resolution seeking adoption and ratification of a flag-protection
amendment. In every year since, the issue has been debated at every
national convention and at every meeting of the National Executive
Committee, and a new resolution authorizing continuation of the
campaign has been adopted. Each resolution supporting a flag-protection
amendment passed unanimously with all Past National Commanders having a
right to be heard. Past National Commander Keith Kreul, who, as a PNC
and delegate to the National Conventions, has both a voice and a vote
in the making of Legion policy, has never publicly uttered a word in
opposition.
As National Commander, it is my duty, and privilege, to serve a
one-year term as the executive head of the The American Legion with
full power to enforce the provisions of the National Constitution and
by-laws as well as resolutions of the National Convention. And this
national commander fervently supports the flag-protection amendment, as
do all living Past National Commanders of The American Legion, save
one.
In honor of their service, I would like to enter into the record
the 28 Past National Commanders of The American Legion who have given
of themselves for God and Country and who stand with me in their
support of an amendment which would return to the American people the
right to protect their flag. They are listed below in order of service.
E. Roy Stone, Jr., South Carolina.
Erle Cocke, Jr., Georgia.
J. Addington Wagner, Michigan.
Preston J. Moore, Oklahoma.
William R. Burke, California.
Hon. Daniel F. Foley, Minnesota.
Donald E. Johnson, Iowa.
William E. Galbraith, Nebraska.
John H. Geiger, Illinois.
Joe L. Matthews, Texas.
James M. Wagonseller, Ohio.
William J. Rogers, Maine.
John M. Carey, Michigan.
Frank I. Hamilton, Indiana.
Michael J. Kogutek, New York.
Clarence M. Bacon, Maryland.
Hon. James P. Dean, Mississippi.
John P. Comer, Massachusetts.
Hon. H.F. Gierke, North Dakota.
Miles S. Epling, West Virginia.
Robert S. Turner, Georgia.
Dominic D. DiFrancesco, Pennsylvania.
Roger A. Munson, Ohio.
Bruce Thiesen, California.
William M. Detweiler, Louisiana.
Daniel A. Ludwig, Minnesota.
Joseph J. Frank, Missouri.
Anthony G. Jordan, Maine.
Their service spans nearly five decades. Many served in their
position in an era when our flag was protected under law. Only ten of
us have served since the erroneous 1989 Texas v. Johnson Supreme Court
decision which invalidated flag protection laws in 48 states and the
District of Columbia.
I am proud to be among this elite group of distinguished gentlemen
who stand united in a common goal--passage of a flag-protection
amendment.
Sincerely,
Harold L. ``Butch'' Miller,
National Commander,
The American Legion.
__________
To me and to many of my fellow Americans, we feel strongly, that to
show disrespect or to desecrate our flag, the ``Stars and Stripes'' is
an act that should not and cannot be allowed.
I was prepared to die by defending our flag as did so many of my
fellow Americans during time of War.
The ``Stars and Stripes'' is a symbol of what our great country
represents and stands for and we need to preserve the dignity and honor
of our flag, the ``Stars and Stripes''.
Thank you.
Hiroshi Miyamura.
__________
Salon National La Boutique,
Washington, UT, March 13, 1999.
To: the U.S. Senate Judiciary Committee,
Washington, DC.
Gentlemen: I an writing as the National Chapeau of the Eight and
Forty a subsidiary organization of the American Legion Auxiliary,
consisting of 17,144 Partners (members). We are asking that when the
measure to pass a constitutional amendment to protect our flag, comes
before you that you unanimously approve the bill.
I have just recently had the opportunity to help judge girls who
are in their Junior year of High School to attend the American Legion
Auxiliary Girls State. One of the questions we asked each applicant was
how they felt regarding a bill to protect our flag and each and every
girl said she felt that there should be a law protecting our flag from
desecration.
So for both the young people of our country and the older people
who have fought to protect our country, we of the Eight and Forty ask
you to support this bill.
Yours in Service to our Country,
Wanda S. North,
Le Chapeau National.
__________
Harvard Law School,
Cambridge, MA, April 23, 1999.
Senator Orrin Hatch,
U.S. Senate,
Washington, DC.
Dear Senator Hatch: At the Judiciary Committee hearing on April 20,
I regretted the last minute refusal by Randolph Moss to appear on a
panel with other witnesses. For it meant that the rest of us had no
opportunity to hear and respond to views of the Justice Department that
the Acting Assistant Attorney General was going to present about the
flag amendment. I have now read the statement he submitted to the
Committee. I would like to take this opportunity, if I may, to respond
to it.
The statement is an exercise in scare rhetoric. It repeatedly cites
supposed uncertainties, risks and dangers. It calls for ``caution'' and
``stability.'' It is, however, itself built of shoddy reasoning and
even misstatements of law. Let me go through some of the flaws one by
one.
(1) Mr. Moss says (page 2) that there is no need to protect the
flag since ``the last nine years have witnessed no outbreak of flag
burning, but only a few isolated instances.'' I don't know how he uses
the words ``a few'' or ``isolated.'' More significantly, I don't see
the relevance of this claim. As all who have been following this debate
know, the need for flag protection has not been based on the number of
recent incidents of flag desecration. (i) Rather, it has been based on
the mistaken decision by five Justices of the Court to legitimate, such
desecration. Putting the imprimatur of the Constitution on this
behavior, the Justices in effect ``authorized'' and even ``encouraged''
it (as the Court itself has written in another context). Children
growing up in the 1990's--unlike adults--tend to take flag burning for
granted. If the Court's decision is not corrected, it follows that,
over the next several decades, young adults and then old adults will
simply forget that the flag was ever (i.e., for two centuries) regarded
as special, as something is be respected by all, whatever our other
disagreements. (ii) The flag, therefore, needs to be protected as a
matter of principle.
The statement by Mr. Moss that there is no need for flag protection
is odd for another reason: It is at odds with the position of President
Clinton. For, while the President has opposed an amendment, he has
supported flag protection by statute.
(2) Mr. Moss speaks (page 2) of ``our traditional resistance,
dating back to the time of the Founders, to resorting to the amendment
process.'' This is peculiar since it was the generation of the Founders
that crafted and ratified Article V and that added more amendments to
the Constitution than any other generation!
(3) Mr. Moss (page 2) claims that the flag amendment ``would for
the first time in our history limit the individual liberties protected
by the Bill of Rights.'' This claim is as odd as it is familiar. For
the point of the amendment is to restore the meaning that the Bill of
Rights had for two centuries, until 1989. It was the 5-4 Court decision
that changed its long-standing meaning.
His claim is odd for another reason: Some time ago, the President
endorsed a victim rights amendment to the Constitution. Though, at the
time of his original endorsement, there was (as I recall) no agreed
upon text to endorse, he clearly was proposing to ``amend the Bill of
Rights.'' We must conclude, then, that the President is not panicked by
this particular slogan.
(4) Mr. Moss argues (pages 3-4) that the Bill of Rights is
``premised on an unclouded sense of permanence.'' Yet this argument is
not only in some tension with the President's support for a victim
rights amendment. More importantly, it seems (again) to miss the very
point of the flag amendment--restoring the long-standing meaning of the
First Amendment in order to vindicate its permanence, a permanence
undermined by the 5-4 Court decisions in Johnson and Eichman.
(5) On pages 4-5--beginning the central part of his statement--Mr.
Moss starts through a ``reading'' of the flag amendment that, with
respect, can only be called bizarre. (i) First, he says it ``fails to
state explicitly the degree to which it overrides other constitutional
guarantees.'' No amendment--other than the one specifically repealing
the prohibition amendment--does so! In any event, it's not even a
question here since the flag amendment plainly would not touch any
other guarantee. Instead, it would simply restore to the First
Amendment its pre-1989 meaning with respect to one issue. (ii)
Nevertheless, Mr. Moss goes on to say ``it is entirely unclear how much
of the Bill of Rights the proposed amendment would trump.'' ``How
much''? The answer is: None. (iii) Then, going into reverse for a
moment, he suggests that a ``literal'' reading of the amendment would
cause it not even to affect the Court's flag burning decisions!
Fortunately, he quickly recognizes the patent absurdity of this
observation. But its very absurdity demonstrates that his aim is not to
``read'' the amendment at all, just to smear it with any gob of mud,
however weak. (iv) He concludes that ``we are in uncharted territory.''
Either: he is truly confused and at a loss. (In this case, he ought to
speak autobiographically.) Or: he is trying to create confusion among
others. (In this case, he plainly has not even begun to succeed.)
(6) Next (pages 5-7) Mr. Moss goes on to claim that the flag
amendment might ``authorize enactments that otherwise would violate the
due process `void for vagueness' doctrine.'' I really cannot imagine
how he came up with this idea. He rests his case on what he says is the
vagueness of words--``desecration'' and ``flag''--in the proposed
amendment. But many, even most, words in significant provisions of the
Constitution are vague by that standard. (Think of the words ``commerce
among the several states'' or ``general welfare.'') The point is that
the ``void for vagueness'' doctrine has nothing to do with language in
the Constitution. Rather, it has to do with language in statutes. The
flag amendment is intended to validate a specific statute--the Flag
Protection Act of 1989--carefully drafted, with much expert advice, and
enacted by a 91-9 vote in the Senate. When the Constitution employs
general terms to grant Congress power, it is up to Congress to
legislate in ways that satisfy the Due Process clause. Plainly, it
showed that this can be done--and did so--with respect to prohibition
of physical desecration of a flag of the United States.
(7) Then, Mr. Moss returns (pages 7-8) to the strange idea that,
under the flag amendment, Congress might ``be freed from all, or only
some, First Amendment constraints.'' The phrase ``all or only some'' is
puzzling. He mentions just one: the doctrine articulated in the R.A.V.
case that forbids government to proscribe only certain sub-categories
of ``proscribable'' expressive activity--such as ``fighting words''--on
the basis of their particular message or point of view. Obviously ,
this deeply-rooted doctrine would remain in place and would forbid
Congress to punish only instances of flag burning by Democrats or by
anti-war demonstrators. Yet Mr. Moss is ``immensely troubl[ed]'' that
the flag amendment might ``override'' R.A.V. so as to permit such
laws--or even override ``the whole of the First Amendment''! I really
don't know what to say to such scare rhetoric clothed as legal
analysis--except that it is ridiculous and irresponsible.
(8) At the end (pages 9-10) Mr. Moss reprises his various claims.
He says he has ``real doubts'' whether his ``difficulties and
uncertainty'' can be resolved by ``even the most careful drafting''. It
appears that, if he had been at the Philadelphia Convention in 1787, he
would have opposed any Constitution--the ``uncertainties,'' the
``drafting'' problems, would have seemed overwhelming. Yet he goes on
to speak of this ``reverence for the Constitution'' and (again) of his
unwillingness to ``tamper with the Bill of Rights'' which, he says
(again), should be ``permanent and enduring.'' Yet his reverence in
this instance appears to be focused not on the Constitution and Bill of
Rights--which were products of a political process--but on the Court
which ``interprets,'' and ``reinterprets'' and thereby ``amends'' it,
free of any direct responsibility to the people.
Perhaps the problem, again, is that Mr. Moss is just unaware of the
nature of the flag amendment--restoration to the First Amendment of its
long-accepted and, it had been supposed, ``permanent'' meaning.
Sincerely,
Richard D. Parker,
Williams Professor of Law.
__________
Raoul Berger Professor of Legal History,
Northwestern University School of Law,
Chicago, IL, March 6, 1999.
Hon. Orrin G. Hatch,
Chairman, Senate Judiciary Committee,
U.S. Senate, Washington, DC.
Dear Senator Hatch: You have asked me for my views on the proposed
Flag Protection Amendment, and on whether a statute could be passed to
protect the United States Flag from desecration, thus making a
Constitutional Amendment unnecessary. I would assume that any bill that
might be submitted would be essentially the same as S. 982, the ``Flag
Protection and Free Speech Act of 1997,'' which was introduced in the
last Congress by Senators McConnell and Bennett, and embraced as well
by Senator Lieberman. From time to time bills such as S. 982 attract
some interest, and even though the Congressional Research Service (CRS)
has taken the position that such a bill would pass constitutional
muster, I disagree. There are many things in Constitutional law that
are difficult or confused, as you know, but there is now one thing that
is as certain as anything in Constitutional law can be, and that is
that a bill such as S. 982, if passed, would be declared
unconstitutional, and would be rejected by each and every federal or
state court which considered it. Such a bill, given the current state
of Constitutional law, would be not only a futile exercise in
legislation, but an attempt to usurp a right, the right of Amending the
Constitution, belonging to the American people, and would be an attempt
thus to infringe on the right of the American people to determine for
themselves the meaning of their Bill of Rights.
As you know, back in 1990, when the Congress was considering
earlier legislation to protect the American flag, and when the Congress
was advised by several law professors (among them Harvard's Lawrence
Tribe) that a statute could pass Constitutional muster, a few us
(including Judge Robert Bork and me) explained as clearly as we could
that the language in Texas v. Johnson, the 1989 case which found
unconstitutional the Texas flag desecration statute, meant that no
statute which sought to protect the flag from desecration could ever
survive the strict scrutiny the Supreme Court said it would apply. We
were proved correct, when, in 1990, in U.S. v. Eichman, the Supreme
Court rejected as unconstitutional a Congressional attempt to get
around the Texas v. Johnson decision by statute. Every flag desecration
statute that has come before the courts since 1989 has been rejected as
unconstitutional, most recently the Wisconsin statute, which the
Wisconsin Supreme Court held in 1998, State v. Janssen, could not even
be applied to convict a ruffian who defecated on the flag. The
Wisconsin Supreme Court implied that only an Amendment to the United
States Constitution could protect the flag in such a situation.
In Johnson and Eichman, the majority of the United States Supreme
Court made clear its belief, first that burning or desecrating the flag
was an act of speech, and second, that any legislative measure designed
to protect the flag from desecration would be viewed as ``content
discrimination,'' as implying government disapproval for a particular
kind of speech. Such content discrimination, the Court pointed out,
pursuant to its view of First Amendment interpretation, could only be
justified for a ``compelling governmental purpose.''
The only ``compelling governmental purpose'' the Court was willing
to find in statutes preventing flag desecration, the Court made clear
in Johnson and Eichman, was the protection of the flag's symbolic value
to the nation. But the Court also made clear that the only ``symbolic
value'' of the flag which it was willing to a allow a government to
promote was its standing for the very freedom of speech which the court
believed was exercised in the act of desecrating the flag! By this neat
(one is tempted to say circular or specious) trick, the Court, in
effect, was able to declare that those who desecrated the flag, by
burning it, by shredding it, or even by defecating on it (as the
Wisconsin decision reminds us), simply enhanced the symbolic value of
the flag as a guarantee of free speech. Since the only permissible
``compelling governmental purpose,'' according to the court, was
enhanced by permitted flag desecration, any statute prohibiting flag
desecration would be construed as weakening this compelling
governmental purpose instead of strengthening it. There could thus be
no ``compelling governmental purpose'' in preventing flag desecration,
and accordingly, since the Court claims that a flag desecration statute
would be ``content discrimination,'' no flag desecration statute could
pass Constitutional muster.
The federal statute rejected in Eichman purported to be ``neutral''
as to the content of the message intended by the flag desecrator, but
this was of no moment to the Eichman court, which looked at the
legislative history of the measure, and the public sentiment which led
to it, and simply declared that it was an impermissible attempt to
meddle with the Court's conception of freedom of speech. The precise
same fault would doom any bill similar to S. 982, but S. 982, and bills
like it, have several other weaknesses which suggest their questionable
provenance and which would render them unconstitutional.
For example, in Section 2(a)(1) of S. 982 Congress would have
declared that the flag ``represents the values of liberty, justice and
quality that make this Nation an example of freedom unmatched
throughout the world.'' While this may well be correct, the Supreme
Court, in construing the flag only to stand for the freedom of speech
which it believes extends to the act of flag desecration itself, has
given the flag a much narrower meaning. Since this is based on the
Court's reading of the Constitution, Congress is without power to
broaden it. Strange and strained and bizarre as this point is, it's
inescapable after reading the Johnson and Eichman cases.
More troubling, I think, is the extraordinary assertion in Section
2(a)(2) of S. 982, that clearly implies that the proposed Flag
Protection Amendment (that it seeks to replace) would amend the Bill of
Rights, and that the Constitution ``should not be amended in a manner
that could be interpreted to restrict freedom, a course that is
regularly resorted to by authoritarian governments which fear freedom
and not by free and democratic nations.'' This assertion is, among
other things, a gratuitous insult to the men and women in the forty-
nine state legislatures who have petitioned the Congress to pass the
Flag Protection Amendment, and the roughly 80 percent of the American
people who have consistently indicated their approval of the proposed
Amendment. It is ridiculous and unseemly to suggest that their motive
is to emulate authoritarian governments or that they ``fear freedom.''
Equally disturbing is the fact that the decision on whether to
amend the Constitution is not one on which Congress has the right to
advise the American people, to whom that amendatory power ultimately
belongs. It is true that one route to the Amendment goal starts with
Congress, and the people's representatives have their say, but they are
authorized to act as the people's agents, and not as their masters in
the Amendment process.
Moreover, for more than one hundred years the courts upheld flag
desecration statutes, and such noble champions of the Bill of Rights as
Justices Hugo Black and Earl Warren saw no conflict between the Bill of
Rights and flag desecration statutes. A Constitutional Amendment which
would once again permit flag desecration legislation would not amend
the bill of Rights as Black and Warren understood it, it would simply
correct, in the name of the people--who are the Constitution's ultimate
beneficiaries and guardians--an erroneous construction of the
Constitution by a transient majority of the Supreme Court. This sort of
correction of Supreme Court errors is a time-honored purpose of
Constitutional Amendments.
The proposed Flag Protection Amendment, as you know, is not some
misguided attempt to amend the Bill of Rights. It is simply an
opportunity for the American people to reaffirm the distinction between
the speech protected by the First Amendment and outrageous,
inflammatory, and harmful acts which have no such protection. The
Supreme Court, unfortunately, got it wrong in Texas v. Johnson, and the
proposed Flag Protection Amendment would simply set things right again.
It would restore to the American people their right which Black and
Warren recognized, their right to determine for themselves the meaning
of their cherished and unique national symbol and how it ought to be
protected.
But even if the Supreme Court would not have a basis in its prior
misreading of the First Amendment to reject as unconstitutional such
statutory exercises as S. 982, it is clear that bills such as S. 982
would be unconstitutional because of their declared purpose, based on
the so called ``fighting words'' doctrine (see S. 982, Section 2(a)(3),
which limns a purpose to prevent ``imminent violence or a breach of the
peace''). Such a bill goes beyond the powers entrusted to Congress and
unconstitutionally invades areas reserved to the ``police power'' of
the states. There is no general grant to Congress of power to prevent
violence or to guard against breaches of the peace. These are matters
that have historically been entrusted to the state and local
governments, those closest to the people. The basic Constitutional
principle of Federalism, of dual sovereignty, reserves some areas of
governance to the states and some areas (such as interstate commerce
regulation and foreign affairs) to the federal government.
In the important U.S. v. Lopez case, in 1993, the Supreme Court, in
declaring unconstitutional the Federal Gun-Free School Zones Act, which
made it a federal crime to possess a firearm near or in a school, held
that this went beyond Congress's powers and invaded the domain of the
states. In the Court's 1997 term the court released several other
decisions which underscored the importance of Federalism to our system,
and recently some lower federal courts have even declared
unconstitutional (on federalism grounds) the federal legislation which
sought to impose penalties for violence against women. There is no
doubt that the logic of Lopez would render unconstitutional a national
``breach of the peace'' statute such as S. 982.
Such statutory attempts are unworthy and now clearly
unconstitutional pieces of legislation. They purport to be conceived to
protect our cherished national symbol, but they wrongly denigrate the
efforts of those who support the Flag Protection Amendment. They accuse
them, as for example, Senator Lieberman did in his statement in support
of S. 982, of seeking to alter the First Amendment and of wanting to
expand the power of government at the expense of individual liberty.
This betrays a sad and fundamental misunderstanding of the nature of
liberty in this country.
Individual freedoms are, of course, important, and it may well be
that the American political system is the most admirable because it
offers the most protection to individual liberty. But it remains true,
as our Framers knew, that liberty cannot exist without a foundation in
civility and order, and there are times when outrageous actions are not
manifestations of liberty, but rather of license, which undermines the
basis of civilized order itself. In the past year, which has seen the
country roiled by the effects of license in the Oval Office itself, we
have seen extraordinary proof of the need to keep license checked. Our
Framers tried to strike a balance between liberty and license, and by
doing so to establish ``domestic tranquility.'' The Constitution and
its attendant Bill of Rights recognized that the most important liberty
was the liberty of the American people themselves to exercise popular
sovereignty and to pass their own laws to promote both order and
liberty.
Striking this delicate balance between liberty and order is a
difficult task, and one entrusted by the Constitution, in the Article V
Amendment process, to the people themselves. In returning us to the
balance struck for the century before Texas v. Johnson, the proposed
Flag Protection Amendment would not amend or in any way alter the Bill
of Rights, it would instead solidify the foundation of American liberty
itself.
I would be happy to discuss the Flag Protection Amendment further
at your convenience.
Yours sincerely,
Stephen B. Presser.
__________
Noncommissioned Officers Association
of the United States of America,
Alexandria, VA, April 15, 1999.
Hon. Orrin G. Hatch,
U.S. Senate,
Washington, DC.
Dear Senator Hatch: The Noncommissioned Officers Association of the
USA (NCOA) has joined with the Citizens Flag Alliance (CFA) to support
the efforts of many in Congress to pass a Flag protection amendment.
NCOA's 148,000 members are solidly committed to the passage of Flag
protection legislation and have placed the issue among their very
highest legislative priorities. In this regard NCOA is delighted with
the recent introduction of S.J. Res 14 in the U.S. Senate.
On behalf of NCOA's noncommissioned and petty officer members, I
fully expect the members of Senate Judiciary Committee to approve
legislation and pave the way for the matter of Flag protection to be
brought to the Senate floor for vote in an expeditious manner. NCOA
urges your support of S.J. Res 14.
In closing allow me to reiterate the importance of this manner to
NCOA members and their families. They will never give up on this issue
and look to you to support their desires to see Flag protection
legislation passed during the 1st Session of the 106th Congress
Sincerely,
Roger W. Putnam,
President/CEO.
__________
The Ohio American Legion,
Columbus, OH, March 10, 1999.
Hon. Orrin Hatch,
U.S. Senate,
Washington, DC.
Dear Senator Hatch: The Ohio American Legion, consisting of 165,000
members, is supportive of a Constitutional Amendment to protect the
U.S. Flag from physical desecration.
We urge your favorable consideration and vote for a measure that
will allow the American people what polls have shown for years they
favor, the right to have their flag protected by laws of the land.
Sincerely,
Carl Swisher,
Department Commander.
__________
April 5, 1999.
Dear Senator Hatch: I am writing to express my support and
gratitude for your sponsorship of the flag protection constitutional
amendment (S.J. Res. 14), which I understand may come before the Senate
for a vote in the near future. Like you, I regard legal protections for
our flag as an absolute necessity and a matter of critical importance
to our Nation. The American flag, far from a mere symbol or a piece of
cloth, is an embodiment of our hopes, freedoms and unity. The flag is
our national identity.
I am honored to have commanded our troops in the Persian Gulf War
and humbled by the bravery, sacrifice and ``love of country'' so many
great Americans exhibited in that conflict. These men and women fought
and died for the freedoms contained in the Constitution and the Bill of
Rights and for the flag that represents these freedoms, and their
service and valor are worthy of our eternal respect. Most of these
great heroes share my view that there is no threat to any right or
freedom in protecting the flag for which they fought. Perhaps as much
as any American, they embrace the right to free speech. Indeed, they
risked death to protect it.
I do see a very real threat in the defilement of our flag. We are a
diverse people, living in a complicated, fragmented society. And I
believe we are imperiled by a growing cynicism toward certain
traditions that bind us, particularly service to our nation. The flag
remains the single, preeminent connection among all Americans. It
represents our basic commitment to each other and to our country.
Legally sanctioned flag desecration can only serve to further undermine
this national unity and identity that must be preserved.
I am proud to lend my voice to those of a vast majority of
Americans who support returning legal protections for the flag. This is
an effort inspired by our nation's history and our common traditions
and understanding, under which, until a very recent and controversial
Supreme Court decision, the American flag was afforded legal protection
from acts of desecration. The flag protection constitutional amendment
is the only means of returning to the people the right to protect their
flag, and your leadership will undoubtedly help to ensure the success
of this important campaign.
Sincerely,
H. Norman Schwarzkopf,
General, U.S. Army, Retired.
April 29, 1999.
Hon. Orrin G. Hatch,
Chairman of the Senate Judiciary Committee,
Washington, DC.
Hon. Patrick J. Leahy,
Ranking Minority Member of the Senate Judiciary Committee,
Washington, DC.
Dear Mr. Chairman: We, the undersigned religious leaders, believe
the proposed constitutional amendment to prohibit physical
``desecration'' of the flag of the United States is a disturbing
usurpation by Government of a responsibility reserved in the Bill of
Rights to be freely exercised only by religion.
``Although we represent diverse faiths, it is unique to religious
traditions to teach what is sacred and what is not. No government
should arrogate to itself the right to declare `holy' and capable of
`desecration' that which is not associated with the divine. To do so is
to mandate idolatry for people of faith by government fiat. Our First
Amendment has guaranteed to people of faith or to those with no faith
that the government would not be arbiter of the sacred.
``We understand that those who promote the proposed amendment * are
seeking to honor our country and would not wish to compel idolatry on
people of faith. We hope Congress will not enshrine idolatry in the
Constitution but will respect people of faith and honor the Bill of
Rights. We urge Congress to defeat this religiously offensive
amendment.''
Rev. Robert Millner Adams, Sun Prairie, WI.
Rev. Dr. Alan B. Anderson, Bowling Green, KY.
Super Intendent Darline Balm-Demmel, United Methodist District,
Sioux City, IA.
Reverend Doctor Lee Barker, Neighborhood Church, Pasadena, CA.
Rev. Eugene Birmingham, United Church of Christ, IL.
Rev. Ruth M. Brandon, United Church of Christ, Westfield, MA.
Pastor Charles W. Brockwell, Jr., Fourth Avenue United Methodist
Church, Louisville, KY.
Rev. Leo Brummett, KY.
Clerk John Buck, Patapsco Friends Meeting, MD.
Ret. Rev. John Burt, Bishop of Ohio.
Prof. Dr. Joeseph Chuman, Columbia University, NJ.
Rev. James Conn, United Methodist Church, Los Angeles, CA.
Rev. Sam Cox, Kailua, HI.
Reverend Doctor Beverly Dale, Disciples of Christ, Philadelphia,
PA.
Rev. Joseph R. Alfred, Evergreen Park, IL.
Rev. Martin J. Bagay, Sparta, NJ.
Rev. David A. Barber, Community United Church for Christ, NC.
Rev. Henry L. Bird, Episcopal Diocese of Maine, Brunswick, ME.
Rev. Walter Boris, Kirkland Congregational Church, U.C.C.,
Kirkland, WA.
Rabbi Balfour Brickner, Synagogue, NY.
Priest Canon Roberts Brooks.
Rev. John Buchanan, Southern Baptist.
Pastor Dr. Michael Burr, American Baptist Churches, USA, Issaquah,
WA.
Prof. & Trustee Ernest Cassara, First Parish and the First Church
in Cambridge, Cambridge, MA.
Pastor Robert C. Cochran, MI.
Clergyman Paul Connie, Myerstown, PA.
Pastor Rufus Cuthbertson, Evangelical Lutheran Church in America,
Dahlonegaq, GA.
Rev. Terrence H. Davis, West Hartford, CT.
Rev. Randall Day, St Mark's Episcopal Church, Teaneck, NJ.
Minister Herbert Dimock, United Church of Christ, CA.
Rev. John P. Donovan, Hamilton, NY.
Minister Dr. E. Dale Dunlap, United Methodist Church, Raymore, MO.
Rev. Myles W. Edwards, Kensington, MD.
Rev. Johnathan Eilert, OH.
Ret. Rev. W.W. Finlator, Pullen Memorial Church.
Rev. William J Fleener, New Era, MI.
Rabbi Joan Friedman.
Rev. John E. Gibbons, First Parish in Bedford, Bedford, MA.
Rabbi James A. Gibson, Mount Sinai, PA.
Canon Doctor John S. Gill, Los Olives, CA.
Lay Minister Donald W. Gregg, Atlanta, GA.
Rev. Linda Hansen, Cedar Rapids, IA.
Director Stanley Diamond, Northwest Interfaith Movement,
Philadelphia, PA.
Rev. Larry Doerr, Presbyterian Church (U.S.A) Homestead Presbytery,
Lincoln, NE.
Rabbi William Dreskin, Woodlands Community Temple, White Plains,
NY.
Rev. Myles Edwards, Kensington, MD.
Sister Maureen Fiedler, SL.
Rev. W.W. Finnlator, Raleigh, NC.
Rev. Dr. Allen M Fluent, Mt. Sinai Congregational United Church of
Christ, Mt. Sinai, NY.
Treasurer Barbara P. Gardner, Unitarian Universalist Church of
Riverside, Riverside, CA.
Trustee Greg Gibbs, Fenton United Methodist Church, Holly, MI.
Rev. Gordon Gibson, Unitarian Universalist Fellowship of Elkhart,
Elkhart, IN.
Rabbi Debora Gordon, Congregation Berith Sholom, NY.
Father Robert Gregg, Stanford University Chaplain, Stanford, CA.
Rev. Ruth W. Hamilton, Presbyterian Church (USA), DC.
Staff Associate Gary Harke, Provincial Elders Conference, Sun
Prairie, WT.
Rev. Kenneth B. Hawes, Croton-on-Hudson, NY.
Rev. Lansing Hicks, Hamden, CT.
Rev. Earl K. Holt III, First Unitarian Church of St. Louis, St.
Louis, MO.
Pastor J. Richard Hunt, Indianapolis, IN.
Rabbi Daniel Isaak, Congregation Never Shalom, Portland, OR.
Ret. Clergy Wayne G. Johnson, WI.
Rev. Carol Karlson, Unitarian Universalist Association,
Brattleboro, VT.
Rev. Axel Kildegaard, ELCA, MN.
Rev. Earle C. King, St. Martin in the Fields Episcopal Church,
Grand Island, NY.
Rabbi Lawrence Kushner, Congregation Bethel, Sudbury, MA.
Rabbi Sue E. Levy, West St. Paul, MN.
Rev. Helen Locklear, IN.
Rev. Mary Marguerite Kohn, Mechanicville, NY.
Ret. Minister Dr. J. Mac McPherson, Royse City, TX.
Secretary David Mertz, Grace Evangelical Lutheran Church in America
(ECLA), Aurora, IL.
Rev. Sandra Herman, Milwaukee, WI.
Ret. Minister C. Alan Hogle, United Methodist Church, FL.
Rev. Dr. Arnold Howard, Enon Baptist Church.
Rev. Susan Irish, United Church of Christ, So. Royalton, VT.
Rev. Carlos Jayne, IA.
Rev. Charles Kapps, All Saints' Church, Fallsington, PA.
Rev. Canon Elizabeth Keaton, Newark, NJ.
Rev. Theresa A. Kime, Unitarian Universalist Congregation of Erie,
Erie, PA.
Rabbi William Kuhn, Philadelphia, PA.
President Duane Lemley, Eastrose Unitarian-Universalist Church,
Portland, OR.
Rev. Nurya Love Lindberg, MI.
Rabbi Michael M. Remson, Naperville, IL.
Rev. Timothy McDonald III, First Iconium Baptist Church, Atlanta,
GA.
Rabbi Ralph Mecklenburger, Beth-El Congregation, TX.
Rev. Mark Middleton, The Episcopal Church, USA.
Pastor Jerry Mileson, United Methodist Church, Wichita, KS.
Rabbi Jay Moses, Chicago, IL.
Rev. William Murphy, WI.
Rev. Sue Ann O'Neill, Momence, IL.
Rev. Peter Baldwin Panagore, Congregational Church of Boothbay
Harbor.
Rev. William Potter, St. Luke's Episcopal Church, Hope, NJ.
Rev. Lisa Romantum Schwartz, Topeka, KS.
Rabbi David Saperstein, Union of American Hebrew Congregations.
Rabbi Jeffrey Schein, Beachwood, OH.
Rev. Gilbert Schroerlucke, Louisville, KY.
Rabbi Barry L. Schwartz, Temple Sinai, Amherst, NY.
Rabbi Charles P. Sherman, Tulsa, OK.
Rev. Stephen B. Snider, Wynnewood, PA.
Rev. Betty Stapleford, CA.
Reverend Doctor Dave Steffenson, Columbus, WI.
Rev. Jim Mitulski, Metropolitan Community Church of San Francisco,
San Francisco, CA.
Rev. Randall Mullins, WA.
Rev. Thea Nietfield, IA.
Rev. Michelle Panabecker Neff, First Fundamentalist
Constitutionalist Church of the Savior, Dublin, OH.
Reverend Doctor Harold G. Porter, The Pres. Church, USA,
Cincinnati, OH.
Rev. Carl W. Rohlfs, TX.
Trustees Jerry Sankot, Michael Servetius Unitarian Church.
Rev. Ken Sawyer, MA.
President Katie Schimoeller, Eastrose Unitarian-Universalist
Church.
Rev. Judy Schultz, Crown Hill U.M Church, Seattle, WA.
Rev. Dr. Thomas Scott, St Mark's Episcopal Church, Evanston, IL.
Rev. Timothy Sloan, Interfaith Ministries for Greater Houston,
Houston, TX.
Rev. Jeffrey Spencer, Tolt Congregational United Church of Christ,
Carnation, WA.
Rev. Scott O. Stapleton, IA.
Rev. Timothy Stover, Corvallis, OR.
Rev. Margaret Strodtz, Arden Hills, MN.
Clerk Kenneth Sutton, Society of Friends, PA.
Rev. Elwyn Tesche, Eugene, OR.
Prof. Richard Tonachel, Harvard University, MA.
Rev. Erik K. Viker, Williston, FL.
Fr. Lewis W. Towler, RI.
Rev. Ann Walling, All Saints Episcopal Church, SC.
Rev. E.S. Wasosky.
Rabbi Daniel Weiner, Harrisburg, PA.
Rev. Robert J. Wilde, Evangelical Lutheran Church in America,
Pittsburgh, PA.
Ret. Pastor Elmer N. Witt, Evangelical Lutheran Church in America,
WA.
Rev. Michael Zampelli, SJ, Santa Clara, CA.
Rev. Melanie M. Sullivan, Un. Univ. Church of Chattanooga,
Chattanooga, TN
Rabbi Paul Teicher.
Lay Minister Arthur Thexton, James Reed Unitarian Universalist
Congregation, Madison, WI.
Reverand Doctor Vester L. Vanstrom, San Antonio, TX.
Rev. Orloff W. Miller, Germany.
Rev. Brent Walker, Director of Baptist Joint Committee.
Rabbi Arthur Waskow, The Shalom Center, Philadelphia, PA.
Rev. James Watkins, Old South Church, U.C.C., Kirtland, OH.
Rev. Robin Whitlock, New Orleans, LA.
Rev. John W. Wimberly, Jr., Western Presbyterian Church,
Washington, DC.
Rev. Rodge Wood, Christ Episcopal Church, Pittsburgh, Terra Altah,
WV.
Intern Minister Amy Zucker, Champlain Valley Unitarian Universalist
Society, Middlebury.
__________
Legion Assails Flag Protection Amendment Detractors, Calls for Senate
to ``Do Right Thing''
Washington (April 28, 1999)--Calling on the Clinton administration
to be consistent, the elected leader of the 2.8-million member American
Legion condemned the administration and some Senators who ``just don't
get it'' for lobbying against Senate Joint Res. 14, a flag-protection
constitutional amendment.
``Today's testimony by Senators Chafee, Kerrey, former Senator
Glenn and Randolf Moss of the Justice Department was a slap in the face
to Americans, past and present, who believe that the citizens of this
great land have a constitutional right to representative government,''
Butch Miller, national commander of The American Legion said. ``Even as
the administration testified today before the Senate Judiciary
Committee against Senate Joint Res. 14, a constitutional amendment that
would protect our flag, various polls conducted over 10 years have
shown consistently that 80 percent of the American people support the
amendment. Forty-nine state legislatures have passed resolutions
supporting the amendment.
``Why is it, a handful of Senators continue to thumb their noses at
the right of the people, and the 49 state legislatures who represent
them, to simply exercise their Article V right under our
constitution?'' Miller said. ``It is time for those we have elected to
represent us in Washington to do the right thing, and the right thing
is for them to vote `yes' on SJR 14 and send it to the state for the
ratification process. Stop the lying and fear mongering about
protecting Old Glory. Let the people decide.
``When the president's place in history was in the hands of members
of Congress, the administration wanted the `will of the people' to
prevail, because the polls showed most Americans wanted him to finish
his presidency,'' Miller said. ``All we want is for the Clinton
administration to be consistent in this record. If the polls save the
presidency, then the polls can save our flag.''
Miller and other Legion officials are enraged at the president's
flip-flop; Clinton supported protecting the flag when he was a
presidential candidate while addressing The American Legion National
Convention in Chicago in 1991.
``Crossing the Memorial Bridge in Washington, D.C., you see the
entrance to Arlington National Cemetery, the Korean War Memorial, the
Vietnam War Memorial, the Iwo Jima Memorial, the World War II Memorial
site, and may even pass a school where children are respectfully
raising the American flag. Yet, the administration seems to believe
that our flag is not worth protecting,'' Miller said.
``Relegating our flag to `a piece of cloth' is a revisionist view
of our nation's history. Our founding fathers did not permit
desecration of the American Flag. The flag was protected in its role as
an incident of our sovereignty.
``The flag flies over our young men and women in uniform in
Yugoslavia. We approved the use of the Flag of the United States on
foreign oil tankers during the Persian Gulf War so Saddam Hussein
couldn't attack them. An attack on them, like an attack on our men and
women in uniform, would have been an assault on the sovereignty of the
United States of America. Refugees from Kosovo are fleeing to the
protection of that flag, as did many of our forefathers.
``A piece of cloth--of no value? Is that their position? God help
our nation if it is their final testament that the flag that may drape
the coffins of some of our sons and daughters is just a piece of cloth
in their eyes.''
The proposed 28th Amendment, ``The Congress shall have power to
prohibit the physical desecration of the flag of the United States,''
passed in the House in each of the last two sessions--and is likely to
pass again in the 106th Congress. Essentially, two Senate votes are all
that keep the amendment from being sent to the states for ratification.
A pair of 5-4 rulings of the U.S. Supreme Court in 1989 and 1990
invalidated century-old federal law and the laws of 48 states that
banned physical desecration of the U.S. Flag, and ruled flag-protection
statutes unconstitutional. Only by a constitutional amendment can the
American people reclaim the right to protect the U.S. Flag from acts of
physical desecration.
__________
Walter D. Ehlers of Buena Park, CA--Congressional Medal of Honor
Recipient
If there is a day that changed the rest of my life, it was the day
that I had to get my Mother and Dad's signatures on my Army enlistment
papers.
My Dad said he would sign. My Mother said she would sign on one
condition, ``If you are going to be a soldier, be a Christian
soldier.'' I told her I would do my best. It was not easy to be a
Christian soldier. There were many temptations and every time I was
tempted, I could see the tears in my Mother's eyes and I was not about
to cause her any disappointments.
I was born in Kansas, raised on a farm. The first nine years of my
life were great. Then came the Great Depression and the worst drought
of the century in the Midwest and in 1935 the worst flood. We were able
to survive but it wasn't easy. My Dad and Mother worked hard and set a
good example for family life.
I joined the Army in October 1940. I went to Ft. Ord. On the day
war was declared, December 7, 1941, I was on Mt. Rainier in Washington
State. I was at about 8,000 feet altitude, strapping on a pair of skis.
I had never been on skis before. I hadn't been on a hill over 200 feet.
When the radio at the ski shack announced the bombing of Japan,
followed up with the announcement that all servicemen were to return to
their units immediately, it probably saved my life. I unstrapped my
skis. I never went down the mountain. I shudder to think what might
have happened.
In October, 1942, we set sail for our overseas destination. We were
briefed about our landing objective; it was to be French Morocco, North
Africa. If I hadn't been so seasick, I would probably have been scared.
But it didn't take the seasickness long to wear off. The casualties on
the beach and the strafing soon gave me much more to worry about.
I was transferred to the First Infantry Division. My brother and I
were in the same company. We fought through Africa and Sicily. My
brother was wounded in Sicily and sent to a hospital in Africa. I
finished up in Sicily and we were sent to England. We trained
constantly until we boarded ships for the Normandy Invasion.
My brother had returned from the hospital in Africa. At the
embarkation was the last time I saw him. He was killed in the D-Day
landings on Omaha Beach. I went on to receive several decorations
including three Purple Hearts and the Medal of Honor. I am a survivor.
My brother and many of my close friends paid the supreme sacrifice.
Because of them, hundreds of thousands of them, you and I are here
today.
What I have written about above is typical of the World War II
veteran. He knows why he was going to war. Many veterans who have gone
to later wars have not been so sure of the reason for their being
there. We, the people, are the government and it is our duty to make
sure we are not wasting lives in becoming involved in military actions
that cannot be resolved or come to an honorable conclusion. We do not
work for the Congress or the administration, they work for us.
We live in the greatest country in the world. After all I have seen
of the world, I would not trade any of our states for it.
Our country is unique. We have all colors, races, nationalities and
ethnic groups. We have the greatest freedom of any country in the
world. We have problems, but all nations do. However, we have many more
good things in this country than bad. One of the unfortunate things is
that there is so much crime reporting on television and other news
media, that we very seldom hear about the good things.
But wherever Americans go we can be proud of our heritage. Our
flag--the Red, White and Blue is the most respected emblem in the
world. I am a strong supporter of a constitutional amendment to protect
that flag. I believe the war did change me. I have come to have more
respect for our country and realize that we have the best of
everything; people, government, freedom and opportunities.
__________
Prepared Statement of General Livingston
Senator Goldwater said: ``We cannot allow the American flag to be
shot at anywhere on earth if we are to retain our respect and
prestige.'' We certainly should not allow it to be shot at here at home
The flag is that one symbol which represents to the world the
commitment of our great country to freedom. When our flag is present,
people throughout the world, both friends and foe, recognize this flag
may have been tarnished at times in our history, but even tarnished, it
represents a people who will not compromise under any circumstance.
Americans have never waved a white flag but we will wave the red,
white and blue flag until our elected officials return to us the right
to protect the greatest symbol of freedom on this planet.
Today, let us all stand together and send the message ``it is
time'' to fix this problem; it is time to quit making excuses and to
ensure that those who have defended the flag in combat don't have to
defend this flag--our flag--on the streets of our homeland.
GOD BLESS AMERICA!
General Livingston.
__________
Prepared Statement of Prof. Stephen B. Presser
My name is Stephen Presser, I am the Raoul Berger Professor of
legal history at Northwestern University School of Law, I have been
serving for several years as a Constitutional issues consultant to the
Citizens Flag Alliance, and I am submitting this written testimony in
support of S.J. Res. 14, the proposed ``Flag Protection'' Amendment,
and against any further attempts to protect the flag by Congressional
statute. I have appeared before Senate and House subcommittees to
testify in favor of this Amendment several times before, and my goal in
this testimony, as it was before, is both to indicate the persuasive
arguments in favor of the Amendment, and to address some of the
objections that were raised ten years ago, four years ago, and are
still being raised against the Amendment.
You have heard from other proponents of the Amendment who were
extremely eloquent in its support and who addressed their special
feeling for the American flag and the need to protect it from
desecration. The desire for the Amendment is also evident, from the
fact that the Amendment has repeatedly garnered so many sponsors in the
House and Senate and has been the subject of favorable resolutions in
49 state legislatures. I do not know of any other Amendment in American
history that has ever achieved that kind of support prior to its
passage. I believe that I can best serve the Committee by making some
comments about the legal background that gives rise to a need for the
Amendment, by underscoring that unless the Amendment is passed a
federal statute could not do the job of protecting the flag, and by
addressing the general arguments of legal scholars and commentators who
have criticized this Amendment effort.
i. the need for the flag protection amendment
The need for the Amendment, as you know, results from the Supreme
Court's surprising decision in Texas v. Johnson (1989). There, by a
bare five to four majority, the Court declared that flag-burning was
speech protected by the First Amendment, and could therefore not be
banned by the federal government or by state legislatures. This
decision outraged the four dissenters and many Americans, who thought
that the defendant Gregory Johnson's conduct (incinerating the flag
after repeatedly chanting ``Red White and Blue, we spit on you'') was
an outlandish act of arson, and not the kind of speech James Madison
had in mind when he and his colleagues were drafting what became the
First Amendment.
Chief Justice Rehnquist, writing for the dissenters in Johnson,
wondered how legislation protecting the flag that had been on the books
in most states for a century, without objection, could have suddenly
become impermissible. Rehnquist, after observing that several of the
Court's greatest champions of the First Amendment, including Hugo Black
and Earl Warren, thought that the flag could be protected from
desecration, noted that the protection of the national symbol ought to
be seen as no threat to the Constitution as a matter of common sense,
perhaps, rather than as a matter of sophisticated First Amendment
jurisprudence. But common sense is now too often in short supply in
Constitutional discourse. The obvious, it would seem, now has to be
embarrassed in the academy and in the courts, where gorgeous subtleties
and refined analysis cloaked in balancing tests and multi-level tiers
of scrutiny conceal what is essentially result-oriented reasoning. The
majority's opinion in Texas v. Johnson is one of the worst examples of
this sad tendency.
In Texas v. Johnson the majority even conceded that if the
government had a ``compelling interest'' in preserving the symbolic
value of the flag it could override any First Amendment protections,
but the court then declared, in effect, that the only permissible
``symbolic value'' of the flag was that it stood for the right to
express oneself in opposition to the flag and desecrating the flag was
simply a manifestation of this right. Thus, by this curious circular
argument, the Court held that the government could have no ``compelling
interest'' in preventing flag desecration, since flag desecration
simply confirmed the symbolic value of the flag. I believe that the
Supreme Court had no basis for declaring that preserving this sort of
license--it can't really be called liberty--was the only symbolic value
of the flag, but a majority of the Supreme Court has held fast to this
view.
Following Texas v. Johnson, in a wave of public outrage, the
Congress passed a statute (Pub. L. 101-131, Sections 2,3, October 28,
1989, 103 Stat. 777) forbidding flag desecration. The statute was
drafted in neutral language, in order to seem as not to be attacking
speech. It provided, in pertinent part, that ``Whoever knowingly
mutilates, defaces, physically defiles, burns, maintains on the floor
or ground, or tramples upon any flag of the United States shall be
fined under this title or imprisoned for not more than one year, or
both.'' (18 U.S.C.A. Section 700(a)(1)). The statute also indicated
that it did not ``prohibit any conduct consisting of the disposal of a
flag when it has become worn or soiled.'' Id., Section 700(a)(2).
Several leading constitutional scholars, most prominently Lawrence
Tribe of Harvard, advised Congress that such a statute could solve the
problem, and that the First Amendment and statutory flag protection
could co-exist. Several of us told the Congress that given the Court's
views expressed in Texas v. Johnson, only an Amendment could authorize
flag desecration statutes, since the Court was disposed to read any
prohibition on conduct involving the flag as an infringement of the
First Amendment. We were proved right when, a year after Johnson, in
U.S. v. Eichman, the Supreme Court found the new statute
unconstitutional.
Sadly, there appear to be a few distinguished members of the United
States Senate who still wrongly believe a statute protecting the flag
could be held Constitutional and who resist an Amendment for that
reason. If there is one clear principle in current Supreme Court
jurisprudence, however, it is that the Supreme Court will hold that any
statute dealing with the flag is interference with purported First
Amendment freedoms, because a majority of the Court has indicated that
it will find any statutory attempt to protect the flag to be an
impermissible endorsement of a view that the court has said the
government has no compelling interest in promoting.
Justice Brennan made as clear as he could in his opinion in Eichman
that even a facially-neutral statute would be construed as an attempt
to silence speech expressing a particular point of view (that of those
seeking to express contempt for the flag by desecrating it). Any
statute seeking to protect the flag, then, would thus be construed as a
violation of the First Amendment, because, in this misguided
construction, it would be construed as a Congressional statute
interfering with freedom of speech. Justice Brennan made clear that in
the case of such statutes the Court would look beyond form to
substance, and would declare them unconstitutional.
In Eichman Brennan stated that ``Although the Flag Protection Act
[18 U.S.C.A. Section 700] contains no content-based limitation on the
scope of prohibited conduct, it is nevertheless clear that the
Government's asserted interest [protecting the flag] is `related to the
suppression of free expression.' '' United States v. Eichman, 496 U.S.
310, 315 (1990). A Court manifesting Brennan's view would find any act
passed with a desire to protect the Flag to be an unconstitutional
infringement of freedom of speech.
Some current advocates of a statute have mistakenly believed that
they could formulate one that would come within the ``fighting words''
exception to the broad sweep of First Amendment protection. They are
wrong. Not only is that doctrine increasingly under attack, and
unlikely to furnish much support, but in light of the Supreme Court's
unwillingness in Texas v. Johnson to allow breach of the peace
justifications for flag protection legislation, and its concomitant
insistence that normal state criminal statutes are sufficient to
protect persons against harm caused by ``fighting words'' uttered in
connection with the flag, it is inconceivable that any statute could
now survive the Constitutional scrutiny of a kind that the Court used
in Eichman.
Justice Brennan has retired from the Court, but Justice Souter, who
replaced him, has First Amendment views similar to his, and Justices
Scalia and Kennedy, who concurred with Brennan in Eichman would take
the same position in a future case. Justices Ginsburg and Breyer have
first Amendment views close to those of Justices Souter, Kennedy, and
Scalia, and would make up the necessary five votes for a majority in
any future challenge to a statute. Justice O'Connor was one of the
dissenters in Johnson and Eichman, but since those decisions she has
(with Justices Souter and Kennedy) been one of the Court's strongest
proponents of stare decisis (following previously decided cases), and
she might well be found in the majority rejecting future statutes.
Justice Thomas's views on this question are unknown, but he has often
been sympathetic to the positions taken by Justice Scalia, and he might
well follow him on this matter. Justices Rehnquist and Stevens would
likely find a statute constitutional if they chose to follow the
reasoning in their dissenting opinions in Johnson and Eichman. At best
then, any new statute would fall in a 5 to 4 decision, and very
possibly in a 7 to 2 decision. The statutory route is simply not open
to those who would protect the flag, just as it was not in 1989.
Following the failure of the statute, after the Eichman decision in
1990, the proponents of the Amendment once again sought help from
Congress, only to suffer defeat as the Amendment failed to garner the
necessary two thirds majority in the House. The Amendment effort then
returned to the grass roots, and its proponents redoubled their
efforts. As you know, in 1995, the Amendment passed the House by the
requisite two-thirds majority, only to fail by three votes in the
Senate. During the last Congressional session, as you also know, the
Amendment again garnered the requisite majority in the House, through
grass-roots effort, although it was never brought to the floor of the
Senate for a vote. It has been reintroduced in this session, and is now
before you again.
ii. the arguments in favor of the amendment
Why then am I for this Amendment, when the Supreme Court has twice
rejected the constitutionality of flag desecration, when many members
of the legal academy, and many commentators in the media remain
adamantly opposed to it? Why do I reject the view of those who still
claim that the Flag Protection Amendment is an attempt to infringe our
precious First Amendment freedoms? First, I believe that since before
the 1989 Johnson decision it was widely believed that the First
Amendment could properly be construed as not including within its ambit
acts of flag desecration, and since that view has only been overturned
by the slimmest of transient majorities on the Supreme Court,
widespread public opinion, expressed in the continued grass roots
desire for a Constitutional Amendment, ought to be the most relevant
factor in defining the nature of our First Amendment freedoms. In other
words, we have to ask the question here, who should be defining the
scope of the First Amendment? Who should be determining what the word
``speech'' in that Amendment means?
If the American people (as indicated by the favorable resolutions
in forty-nine state legislatures) feel that there is a difference
between pure political speech (which the First Amendment
incontrovertibly protects), and intentionally outrageous acts of arson,
defecation, or other forms of destruction (which it does not), that
feeling deserves deference, and a Constitutional Amendment is the
proper manner in which that deference ought to be expressed. The
Constitution and the Bill of Rights, after all, are acts of the
sovereign people, and the sovereign people have a continuing role in
the preservation and interpretation of the Constitution.
To put this another way, the current Flag Protection Amendment
effort is a vital exercise in participatory democracy, in popular
sovereignty, and is deserving of support for that reason alone. Popular
sovereignty is the basis of our Constitutional system, and Article V,
which authorizes the Amendment process, recognizes this. Where the
Supreme Court has misconstrued the Constitution, the Amendment process
allows the people to correct the Court's error, as was done, for
example, in the case of the Thirteenth, Fourteenth, Sixteenth, and
Nineteenth Amendments.
There is another manner in which the Flag Protection Amendment
effort can be seen as a necessary corrective, and this brings me to
what I believe is the most important reason the Amendment ought to have
the support of Constitutional scholars, and deserves passage. I believe
that the Flag Protection Amendment is a small but vital step in
returning us to a Constitutional path from which we have wrongly
strayed, and in redressing a delicate Constitutional balance that has
become dangerously skewed.
iii. a delicate balance of philosophies and purposes
Our Framers understood that there were two important elements to
our Constitutional tradition which we inherited from Great Britain--a
liberty element and a responsibility element. Without the liberty
guaranteed to us by the English Common Law, we often said at the time
of the Revolution, we would be slaves, and no better than the subjects
of some Asiatic potentate. Without liberty we could not hope to realize
the aspirations toward religious freedom and republican government for
which the United States was colonized and then, later, declared
independent. But the Framers also realized that without responsibility,
without order, without submission to the rule of law, there could be no
protection for life, limb and property, there could be no lasting
liberty. The Federal Constitution itself was drafted and adopted
following the failure of the state legislatures to understand that more
responsibility was needed, and that we could not enjoy the blessings of
liberty without security to person and property.
To make this same point in a manner heard more generally today, it
was one of the goals of the Constitution's framers to foster a sense of
community among all the citizens of our republic, to secure a certain
baseline of civilized behavior. It is the recognition of this goal, by
the way, that has always permitted reasonable time place and manner
restrictions on even the speech protected by the First Amendment. The
proposed Flag Protection Amendment is quite consistent with such
restrictions.
If the Flag Protection Amendment becomes law, and Flag protection
legislation is enacted, the message that flag burners, defecators, or
other flag destroyers and abusers might seek to convey--that we ought
to destroy the symbols that bind us together--can still be conveyed by
pure speech, of course. All that will have happened will be that one
particular incendiary manner of expressing similar sentiments would be
restricted, in the interest of other Constitutional goals, most notably
the recognition that with liberty comes responsibility, and that it is
the duty of society to enforce that responsibility and to preserve
order. Even if the Flag Protection Amendment is adopted, it would still
be true that our First Amendment jurisprudence would be marked by a
tolerance for the expression of dissenting or even despised views, but
not necessarily by a tolerance for all intentionally inflammatory
actions.
Many of our judges, and the majority of the Supreme Court in the
two flag decisions in particular, appear to have gone too far in
embracing an individualistic constitutional jurisprudence, and to have
forgotten other elements in our political and constitutional tradition.
The Framers of the Constitution and the Bill of Rights were not merely
a group of late 18th century John Stuart Mills, devoted solely to
maximizing opportunities for the expression of individual lifestyles or
sentiments. They adhered to a nearly bewildering number of governmental
philosophies, chief among them what we now call classical
republicanism, which was characterized by an emphasis on individual
restraint, altruism and civic virtue.
Included also among the Framers, of course, were a bevy of
Hobbesians who believed in the need for a strong central government to
protect us from our baser instincts. Included as well were a number of
evangelical theorists who sought to preserve a strong role for religion
and morality in American life. There were also adherents to the
Scottish Enlightenment and to the new market theories of Adam Smith.
Finally, there were a number of Lockeans, committed to the protection
of what they took to be individuals' rights of life, liberty, property,
and the pursuit of happiness.
It is not too much to say that it was the genius of our
Constitution and of much of our political history that we usually
managed successfully to juggle our competing basic philosophies, to
grant more individual freedom than was available in any other country,
but to balance it by community-centered restraints, in order to achieve
what we call ordered liberty. We thus succeeded in protecting the
security of person and property, but sought still to allow our people
to enjoy enough independence to realize their particular callings in
the community. When the Supreme Court's majority, in its Johnson
decision, created a single symbolic meaning for the flag, its supposed
apotheosis of individual self-expression, it betrayed a fundamental
misunderstanding of the nature of the American founding.
Thus, if there is a single message in our Constitutional history,
it is probably that each time we move too far in one direction, towards
unlimited liberty, or toward too restrictive order, there is a
reaction, and sometimes a violent one. In recent years we have been
living through a period in which this delicate balance of
Constitutional philosophies and purposes has gone awry. We are at a
point where the personal liberty element of our tradition has, in
effect, spun almost out of Constitutional control. It has now become
commonplace to lament the decline in national standards and morality,
but it is rarely recognized that a significant part of the problem is
that many of the people and the courts have forgotten what the
Constitution, and perhaps even the flag, stood for. For at least the
last forty years, our constitutional law has been radically reconceived
as concerned only with the gratification of individual desires, and the
expansion of individual license.
The erroneous notion that our basic constitutional philosophy is
individual self-actualization--the mistake of the Johnson majority--has
led too many courts to misconstrue the Constitution and to forget the
need for community responsibility and self-restraint. This kind of
Constitutionalism makes the First Amendment and the Fourteenth
Amendment into tails wagging the whole Constitutional dog, and
improperly uses the Bill of Rights as a club to beat back the right of
the people to take some necessary steps for the preservation of ordered
liberty. The original Bill of Rights recognized the need for
responsibilities as well as rights, as does the Flag Protection
Amendment.
iv. consequences of constitutional imbalance
Ideas or the failure to remember ideas have consequences. I don't
think it goes too far to say here that we should draw a lesson from
recent events in America such as the riots following the first Rodney
King trial several years ago, the recent explosion in the birth of
children born out of wedlock, the increase in mindless and random acts
of violence particularly in our schools (as most horrifically observed
recently in Colorado), the Oklahoma City bombing, or even the recent
widespread failure of many governmental officials, including even the
President, to abide by the simplist moral principles, or perhaps even
the rule of law itself. All of these, I think it can be said, are
products of our failure, as a Constitutional society, to remember that
with individual liberty ought to come basic decency and responsibility.
The Supreme Court's two decisions regarding flag burning didn't
create all these problems, of course, but they are part of a
jurisprudence that encourages moral chaos and individual
irresponsibility in society. In the Texas v. Johnson case the five
Justices in the majority were guilty of failing to be able to
distinguish between the kind of liberty of speech which needs to be
protected in a republic, and the kind of irresponsible and outrageous
acts of arson and desecration which should be punished. The Flag
Protection Amendment does no more than return us to an understanding
that we had as recently as ten years ago: The understanding of Justices
Earl Warren and Hugo Black. This was that our traditions allow for full
freedom of speech, but that our traditions also demand that the
exercise of our rights be done in a matter that accords with our
responsibilities. This is why I believe that what's done in other
nations with regard to flags is of no relevance here. We have a long
tradition of protecting our flag, as the unique symbol of our
nationhood and national community, and its protection--for a century--
was a basic part of our heritage of ordered liberty.
I don't mean by my support of the Amendment that I think the
welfare of the Republic is immediately threatened by platoons of
potential flag burners, and I think it's important to realize that the
proponents of the Flag Protection Amendment are not motivated by a
Spanish-inquisition-type zeal to punish flag desecrators or even flag
defecators. Indeed the actual number of flag desecrators is not at all
the issue here. The issue is what the Flag Protection Amendment means
to the American people in general, and, in particular to those who have
fought so hard for it. They are motivated by a desire to recapture the
community's right to set standards of responsibility and decency, and
to guarantee that there are some things that are even more important
than individual self actualization. We Americans have no national
religion, nor do we have many coherent tangible symbols of our
traditions of liberty under law, of liberty with responsibility. The
flag may be the only such symbol we possess, and if we, as a community,
do not have the right to preserve that symbol in a manner that
expresses the responsibility and decency that are necessary for
civility and popular sovereignty itself, then it is not likely that the
goals for which our republic was founded will long endure.
v. a constitutional crossroads
We are now at an important Constitutional, political, and social
crossroads. The events in Europe in 1989, and the events in the United
States in the last six years, as we have seen the formation of new
political alignments and new party platforms, and as we have been
through a wrenching impeachment proceeding, have demonstrated that much
of what passed for wisdom in the American media and even in the
American legal academy was simply foolishness or worse.
This is not to say that there have not been very positive
developments in recent years. Even the Supreme Court has recently shown
signs of recapturing the Constitution, as several of its recent
decisions have reasserted the primacy of popular sovereignty in the
states, and reminded us that the federal government is one of limited
and enumerated powers.
Perhaps the Supreme Court and the American people are on the brink
of recapturing much of the original understanding of the Constitution
itself, and I think the Flag Protection Amendment is a very good means
of contributing to that process. Still, some of the Flag Protection
Amendment's critics have suggested that to pass this Amendment would
amount to ``trivializing the Constitution.'' They reach this conclusion
because they assert that the number of potential flag burners are few,
that it is more appropriate that they be pitied rather than punished,
and that flag burning itself represents no threat to the stability of
the republic. Other critics continue to maintain that to pass the Flag
Protection Amendment would be dangerously to amend the First Amendment
and the Bill of Rights itself. Still other's believe that the problems
of definition and implementation of flag desecration legislation are
insurmountable. How might one respond to these criticisms?
To address the trivialization point first. It is not the fate of
individual flag burners that is at stake here; the Flag Protection
Amendment is more properly viewed as a question of the continued nature
of the American political and social community itself. Nothing could be
more important than the right of the people to express and implement
our tradition of guaranteeing the responsibility that is necessary as a
foundation for liberty. Far from being a threat to the First Amendment
and the Bill of Rights, the baseline of decency, civility,
responsibility and order that the Flag Protection Amendment is designed
to supply is what makes the exercise of our fundamental freedoms
possible. As the Framers understood and often observed, liberty without
order or without responsibility soon becomes anarchy, and anarchy is
inevitably followed by repression and tyranny. We have not reached the
fatal point of anarchy yet in America, but on occasion, in parts of our
country, we have come disturbingly close.
It is time for some responsibility, not to attack, but to protect
the First Amendment, and our other freedoms. The Flag Protection
Amendment does nothing to infringe the First Amendment. It does not
forbid the expression of ideas, nor does it foreclose dissent. It
merely allows the people to reassert their right to shape the contours
of political development in the country and to reconstruct a
dangerously-fractured sense of community. The effort to pass the Flag
Protection Amendment--a grass roots effort of intensity almost never
before seen in American history--is not an attempt by the government to
suppress fundamental rights of the people. It is an attempt by the
people, consistent with a century of their history, to reclaim the
right to declare what kind of a society they want to live in.
The passage of the Flag Protection Amendment will not lead to any
automatic prohibition on flag desecration. There will still have to be
a Congressional statute passed, but the problems of definition and
implementation will not be difficult. After all, there was a century of
flag protection legislation which had been upheld by the state and
federal courts until Texas v. Johnson overturned that century of
jurisprudence in 1989. For example, the matter of defining the flag is
not difficult. One could simply reenact the definition of 18 U.S.C.A.
Section 700(b), that the flag means ``any flag of the United States, or
any part thereof, made of any substance, of any size, in a form that is
commonly displayed.'' The act of flag desecration can also be simply
defined, as it was in the language from the 1989 Act to which I have
already referred.
Once the Flag Amendment is passed it will not be a difficult matter
to implement the protection of the Flag of the United States by
legislation. The Amendment expresses something that represents the best
in our political tradition in America, and something that is vital to
the continuance of our national community. It's a small Amendment, but
it's a good one, and I urge you to act favorably on it, and send it on
to the floor of the Senate and then on to the state legislatures. You
will not be hurting the Bill of Rights. Instead, you will be helping
the First Amendment and the rest of the Constitution to flourish, and
you will be reinforcing the popular sovereignty that is the basis of
our society.
__________
What My Flag Means To Me
By Col. Carl L. Sitter
The flag of a nation is basically the symbol of that nation. It
symbolically represents to the world the philosophy and ideals of that
nation. The stars and stripes is my flag, and even trying to eliminate
any vestige of bias, it is the most beautiful flag in the world.
While our flag has changed 27 times since its inception, it has
been the rallying symbol for generations of Americans and the shroud of
millions who have paid the ultimate price for what those stars and
stripes symbolize.
To me this is what my flag represents: Freedom unequaled.
Opportunity unparalleled. A life style unsurpassed. The right to live,
to work, to strive and to struggle to make my dream become a reality.
When I look at our American Flag, I see symbols that remind me that
it is more than a piece of red, white, and blue cloth. It is more than
a symbol of our land, more than a symbol of a government, more than a
symbol of a people. I see a set of ideals that leap across all lines of
nationality, race and creed. A set of ideals for our nation to teach to
others by precept and most importantly, by example.
As I gaze on our flag and the freedom it stands for, I realize that
the pursuit of freedom has been costly. Our heritage was bought in
blood and sacrifice, and this is easily remembered each time I salute
it, and thank the lord for giving me ``Old Glory'' the red, white and
blue.
__________
Prepared Statement of Richard K. Sorenson--Medal of Honor
Their are no words that can express an adequate tribute to the
emblem of our nation. For those who have shared this nation's life and
felt the beat of it's pulse it must be considered a matter of
impossibility to express the great things which that emblem embodies. I
venture to say that a great many things are said about the flag which
very few people stop to analyze.
For me the flag does not express a mere body of vague sentiment.
The flag of the United States has not been created by rhetorical
sentences in the Declaration of Independence and in the Bill of
Rights--it has been created by experience of a great people. And
nothing is written upon it that has not been written by their life it
is the embodiment. Not of sentiment, but of a history, and no man or
woman can rightly serve under that flag who has not caught some of the
meaning of that history.
Incarnate in the stars and stripes are the ideals, aspirations and
principles of a free-minded people. When a person desecrates our flag
they are showing contempt for all this country stands for and those who
have spilled their blood for this nation.
Our flag is so revered that it's placed on the coffins of all
national leaders, service personel and veterans.
__________
Prepared Statement of James D. Staton, Chief Master Sergeant, USAF
(Ret.)
Mr. Chairman and distinguished committee members, numerous polls in
recent times have shown that over 80 percent of the American people say
that they should have the right to decide the question of flag
protection through the constitutional amendment process. In fact, all
but one state have passed memorializing resolutions asking Congress to
send the flag protection amendment question to the states. Senate Joint
Resolution 14 would give the American people the opportunity they
desire to protect their flag through law. S.J. Res. 14 would send to
the people a very simple article: ``The Congress shall have power to
prohibit the physical desecration of the flag of the United States.''
The 150,000 members of the Air Force Sergeants Association urge you to
support this resolution. AFSA represents the millions of active duty
and retired enlisted Air Force, Air Force Reserve, and Air National
Guard members and their families. These Americans, perhaps more than
any others, have a vested interest in that they put their lives on the
line under the banner of this sacred symbol of greatness and
sovereignty.
All members of the 106th Congress should support this resolution in
order to put this important decision in the hands of the people. If the
congressional representatives truly represent the will of the people,
there should be no delay in acting upon the wishes of the people by
allowing them to rule on this question. The personal feelings and
opinions of elected representatives on this issue should be
subordinated to opinions held by those to whom the elected officials
are responsible--those who own the process. Our members have strongly
communicated their concern over the need to protect the flag and, at
the same time, to have a role in deciding the laws governing that
protection.
For enlisted military members, whose work is characterized by
dedicated sacrifice, the flag is a reminder of why they serve. For
those stationed overseas, it is a symbol of America, seen every day.
For all military members, the flag represents the principles for which
they are prepared to sacrifice. Supreme Court Justice John Paul Stevens
once wrote:
``A country's flag is a symbol of more than nationhood and
national unity. It also signifies the ideas that characterize
the society that has chosen that emblem as well as the special
history that has animated the growth and power of those ideas.
* * * So, too, the American flag is more than a proud symbol of
the courage, the determination, and the gifts of a nation that
transformed 13 fledgling colonies into a world power. It is a
symbol of freedom, of equal opportunity, of religious
tolerance, and of goodwill for other people who share our
aspirations.''
Military members serve so that they can protect this country,
putting their lives on the line if necessary, and they revere our
nation's most visible symbol--Old Glory. It is the one hallowed symbol
all patriots hold sacred. Most importantly, the flag plays a central
role in ceremonies that honor those who have fought, suffered and died.
They know full well that this very flag may drape their coffins as a
result of their unselfish service. Denying protection and, thereby
allowing desecration, of this important symbol of sacrifice insults the
memories of those who are honored in these ceremonies.
The American people, especially those in the military, deserve the
opportunity to make the decision if they want to put flag protection
into the law. Through their sacrifice and dedication, those who have
served have earned your support in giving them the ability to make this
decision.
Mr. Chairman and committee members, we urge your full support of
S.J. Res. 14. Some questions of governance and law are of such
importance to a people that they deserve the opportunity to speak
directly to those issues. This is one such question. We thank you for
this opportunity to represent our views on this important matter. As
always, AFSA is ready to support you on matters of mutual concern.
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