[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

                              ----------                              

                    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

                              ----------                              


                        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:*
---------------------------------------------------------------------------
    * 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.
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
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\
---------------------------------------------------------------------------
    \13\ The difficulties discussed here overlap with those set forth 
in Guideline Four.
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \1\ Webster's Dictionary, 3rd college edition.
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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\
---------------------------------------------------------------------------
    \3\ William Barclay, The Gospel of Matthew, vol. 2, The Westminster 
Press, Philadelphia, PA, 1958, p. 264.
---------------------------------------------------------------------------
    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
---------------------------------------------------------------------------
    \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\
---------------------------------------------------------------------------
    \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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