[House Hearing, 108 Congress]
[From the U.S. Government Publishing Office]
FLAG PROTECTION AMENDMENT
=======================================================================
HEARING
BEFORE THE
SUBCOMMITTEE ON THE CONSTITUTION
OF THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED EIGHTH CONGRESS
FIRST SESSION
ON
H.J. Res. 4
__________
MAY 7, 2003
__________
Serial No. 20
__________
Printed for the use of the Committee on the Judiciary
Available via the World Wide Web: http://www.house.gov/judiciary
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COMMITTEE ON THE JUDICIARY
F. JAMES SENSENBRENNER, Jr., Wisconsin, Chairman
HENRY J. HYDE, Illinois JOHN CONYERS, Jr., Michigan
HOWARD COBLE, North Carolina HOWARD L. BERMAN, California
LAMAR SMITH, Texas RICK BOUCHER, Virginia
ELTON GALLEGLY, California JERROLD NADLER, New York
BOB GOODLATTE, Virginia ROBERT C. SCOTT, Virginia
STEVE CHABOT, Ohio MELVIN L. WATT, North Carolina
WILLIAM L. JENKINS, Tennessee ZOE LOFGREN, California
CHRIS CANNON, Utah SHEILA JACKSON LEE, Texas
SPENCER BACHUS, Alabama MAXINE WATERS, California
JOHN N. HOSTETTLER, Indiana MARTIN T. MEEHAN, Massachusetts
MARK GREEN, Wisconsin WILLIAM D. DELAHUNT, Massachusetts
RIC KELLER, Florida ROBERT WEXLER, Florida
MELISSA A. HART, Pennsylvania TAMMY BALDWIN, Wisconsin
JEFF FLAKE, Arizona ANTHONY D. WEINER, New York
MIKE PENCE, Indiana ADAM B. SCHIFF, California
J. RANDY FORBES, Virginia LINDA T. SANCHEZ, California
STEVE KING, Iowa
JOHN R. CARTER, Texas
TOM FEENEY, Florida
MARSHA BLACKBURN, Tennessee
Philip G. Kiko, Chief of Staff-General Counsel
Perry H. Apelbaum, Minority Chief Counsel
------
Subcommittee on the Constitution
STEVE CHABOT, Ohio, Chairman
STEVE KING, Iowa JERROLD NADLER, New York
WILLIAM L. JENKINS, Tennessee JOHN CONYERS, Jr., Michigan
SPENCER BACHUS, Alabama ROBERT C. SCOTT, Virginia
JOHN N. HOSTETTLER, Indiana MELVIN L. WATT, North Carolina
MELISSA A. HART, Pennsylvania ADAM B. SCHIFF, California
TOM FEENEY, Florida
J. RANDY FORBES, Virginia
Crystal M. Roberts, Chief Counsel
Paul B. Taylor, Counsel
D. Michael Hurst, Jr., Counsel
David Lachmann, Minority Professional Staff Member
C O N T E N T S
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MAY 7, 2003
OPENING STATEMENT
Page
The Honorable Steve Chabot, a Representative in Congress From the
State of Ohio, and Chairman, Subcommittee on the Constitution.. 1
The Honorable Jerrold Nadler, a Representative in Congress From
the State of New York, and Ranking Member, Subcommittee on the
Constitution................................................... 4
WITNESSES
Major General Patrick H. Brady, USA (Ret.), Chairman of the
Board, Citizens Flag Alliance
Oral Testimony................................................. 7
Prepared Statement............................................. 9
Lieutenant Antonio J. Scannella, Port Authority of New York and
New Jersey
Oral Testimony................................................. 11
Prepared Statement............................................. 12
Mr. Gary E. May, Associate Professor of Social Work, University
of Southern Indiana, Evansville, IN, on behalf of Veterans
Defending the Bill of Rights
Oral Testimony................................................. 13
Prepared Statement............................................. 16
Mr. Richard D. Parker, Williams Professor of Law, Harvard Law
School
Oral Testimony................................................. 19
Prepared Statement............................................. 20
APPENDIX
Material Submitted for the Hearing Record
Statement from The Citizens Flag Alliance submitted by Mr. Chabot 39
FLAG PROTECTION AMENDMENT
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WEDNESDAY, MAY 7, 2003
House of Representatives,
Subcommittee on the Constitution,
Committee on the Judiciary,
Washington, DC.
The Subcommittee met, pursuant to notice, at 3:44 p.m., in
Room 2141, Rayburn House Office Building, Hon. Steve Chabot
(Chairman of the Subcommittee) presiding.
Mr. Chabot. The committee will come to order. I first of
all want to apologize for us not starting on time, but we had a
whole series of votes on the floor. So even though I apologize,
it was unavoidable and we have to be over there for those
votes.
The Subcommittee is convened this afternoon to hear
testimony regarding H.J. Res. 4, a proposed amendment to the
Constitution authorizing Congress to prohibit the physical
desecration of the American flag.
Today, the American--excuse me--today, the flag of the
United States of America is probably the most recognized symbol
of freedom and democracy in the world. Whether in small
conflicts or world wars, whether atop the United States Capitol
or simply hanging from a neighbor's porch, whether sewn to the
sleeves of brave men and women sent into battle or draped
across caskets as some of these brave servicemen and
servicewomen are escorted home, the flag has always persevered
and survived to represent the values that all Americans hold
dear.
No one can forget the image of the New York City fire
fighters raising the flag to the top of a pole in the midst of
rubble and degree at ground zero where the World Trade Center
towers once stood. It is this symbolism and resilience that has
made the flag one of the most beloved and cherished symbols in
our nation's history.
The movement to pass legislation prohibiting the
desecration of the American flag began in the late 1800's, with
all 50 States having flag desecration laws on the books by
1932. In 1968, the Federal Government passed its statute
prohibiting such conduct. Thus, for over half a century, every
single State in the Union, and later the Federal Government,
outlawed this type of conduct without constitutional objection.
However, in 1989, so fairly recently, the United States
Supreme Court in one fell swoop, and by the narrowest of
margins in a five-four opinion, effectively invalidated all
State and Federal laws that prohibited flag desecration. The
Court concluded that the burning of an American flag as part of
a political demonstration was expressive conduct, protected by
the First Amendment. Congress responded to the Supreme Court's
decision almost instantaneously, through bipartisan and
overwhelming support, with the enactment of the Flag Protection
Act of 1989. However, the following year, the Supreme Court
again, in a five-to-four decision, held the Flag Protection Act
unconstitutional in United States v. Eichman.
Because of these two narrowly-decided Supreme Court
decisions effectively rejected the command of an overwhelming
majority of the American people to outlaw such conduct, the
only option remaining for the American public is to amend the
Constitution in order to restore protection to this most
hallowed and respected symbol of our nation's unity,
solidarity, and strength.
Some would argue that this proposed amendment would erode
First Amendment protections that all Americans enjoy. I
disagree with this argument, as do the majority of Americans.
The Flag Protection Amendment is consistent with the First
Amendment while reflecting society's interest in maintaining
the flag as a national symbol by protecting it from acts of
physical desecration. There is absolutely nothing in the
amendment proposed today that will prevent individuals from
speaking out against the United States, its policy, its people,
its flag, or anything that it represents. This amendment simply
prohibits acts of physical desecration of the nation's most
enduring and revered symbol, nothing more.
In conclusion, some have called our country the melting pot
of the world. Our nation is unique in its diverse composition
of ethnicity, race, religion, nationality, and language, all of
which personify our citizenry. While we all may not share the
same background, there is one unifying symbol in which we all
take pride, our flag.
Through this amendment, we are protecting not just a piece
of cloth, but rather a symbol that epitomizes this country and
all for which it stands.
The Flag Protection Amendment has been supported by more
than two-thirds of the House of Representatives on four
separate occasions, and by more than just a simple majority of
the Senate on a number of occasions. In addition, an
overwhelming majority of Americans, nearly 80 percent, support
the adoption of this amendment, with all 50 State legislatures
having adopted resolutions calling on Congress to approve such
an amendment and send it to the States for ratification. Such
overwhelming support by the American people sends a clear
message to Congress that we must adhere to the wishes of the
people and adopt this proposal, this proposed amendment to the
Constitution.
I will yield my time to the minority side, if there is an
opening statement, or do you want to wait until Mr. Nadler
comes, or----
Mr. Scott. Mr. Chairman, I would ask unanimous consent that
the gentleman from New York, the Ranking Member, be allowed to
make a statement when he arrives.
Mr. Chabot. Without objection, we will allow him at an
appropriate time to make an opening statement.
Would the gentleman from Virginia wish to make a statement
of any sort other than that?
Mr. Scott. No, Mr. Chairman, other than welcome the
witnesses and we will get into questions. I appreciate the
opportunity to be here.
Mr. Chabot. Thank you. Are there any on the majority side
that would like to make an opening statement? Okay. If there's
no others, we will at this time introduce our panel for this
afternoon, and we have a very distinguished panel. What I would
like to do is at this point yield to the gentleman from South
Carolina, Mr. Janklow, the former Governor of South Carolina--
--
Mr. Janklow. No, Dakota----
Mr. Chabot. Excuse me, South Dakota, to introduce one of
our distinguished Members this afternoon.
Mr. Janklow. Thank you very, very much, Mr. Chairman, and
thank you, Members of the Committee, and you, Mr. Chairman, for
giving me this privilege to come before your committee, a
committee of which I'm not a Member, for the purposes of making
an introduction.
I'd like to introduce to this committee a friend of mine
and a friend of South Dakota's and America's. He is a gentleman
who served in the Republic of Vietnam as a United States Army
Major, as a helicopter pilot, and I'm going to read rather than
to speak extemporaneously. I'm going to read what was written
about him.
Major Brady distinguished himself while serving in the
Republic of Vietnam, commanding a UH1H ambulance helicopter. He
volunteered to rescue wounded men from a site in enemy-held
territory which was reported to be heavily guarded and to be
blanketed by fog. To reach the site, he defended through heavy
fog and smoke and hovered slowly around a valley trail, turning
his ship sideways to blow away the fog with the backwash from
his rotor blades. Despite the unchallenged, close-range enemy
fire, he found the dangerously small site, where he
successfully landed and evacuated two badly wounded South
Vietnamese soldiers.
He was then called to another area, completely covered by
dense fog, where American casualties lay only 50 meters from
the enemy. Two aircraft had previously been shot down and
others had made unsuccessful attempts to reach this site
earlier in the day. With unmatched skill and extraordinary
courage, Major Brady made four flights to this embattled
landing zone and successfully rescued all of the wounded.
On his third mission of the day, Major Brady once again
landed at a site surrounded by the enemy. A friendly ground
force pinned down by enemy fire had been unable to reach and
secure the landing zone. Although his aircraft had been badly
damaged and the controls actually partially shot away during
his initial entry into the area, he returned minutes later and
rescued the remaining injured.
Shortly thereafter, obtaining a replacement aircraft, Major
Brady was requested to land in an enemy mine field where a
platoon of American soldiers was trapped. A mine detonated near
his helicopter, wounding two crew members and damaging his
ship. In spite of this, he managed to fly six severely injured
patients to medical aid.
Throughout that day, Major Brady utilized three helicopters
to evacuate a total of 51 seriously wounded men, many of whom
would have perished without prompt medical attention. Major
Brady's bravery was in the highest tradition of the military
service and reflects the great credit upon himself and the
United States Army. The result of that action that day in
Vietnam, Major Brady was awarded the Congressional Medal of
Honor by this Congress and the people of the United States.
Mr. Chairman and Members of the Committee, now Major
General Brady, retired, spends all of his time working to get
an amendment passed to the U.S. Constitution that protects this
flag, protects this flag under which these men fought and died,
protects this flag which flew over the bases from which these
men came and the country from which these came. But more than
anything else, Major General Brady epitomizes what we in
America call ``the right stuff,'' a man who was willing to lay
down his life, if necessary, to save other people.
Time magazine in a story about him, Mr. Chairman, reported
that Major Brady and his unit were responsible for rescuing
approximately 5,000 wounded American and allied soldiers during
the Vietnam War.
It gives me a great deal of pleasure to present to this
committee Major General Patrick Brady.
Mr. Chabot. Thank you. General, it is an honor to have you
here this afternoon. Before we get to your testimony, we are
going to introduce the other members of the panel, and we
appreciate that very much, Mr. Janklow, and it is certainly an
honor to have you as one of our panel members this afternoon.
The gentleman from New York is recognized for the purpose
of making an opening statement if he would like to do it at
this time.
Mr. Nadler. I would, indeed. Thank you, Mr. Chairman. Here
we go again with the annual Republican rite of spring, a
proposed amendment to the Constitution and the Bill of Rights
to restrict what it calls flag desecration. Why spring? Because
the calendar tells us that Memorial Day will soon be upon us.
June 14 is Flag Day, and then we have July 4. Members need to
send out a press release extolling the need to ``protect'' the
flag, as if the flag somehow needs Congress to protect it.
The flag is a symbol of a great nation and of the
fundamental freedoms that have made this nation great. If the
flags need protection at all, it is from Members of Congress
who value the symbol more than the freedom that the flag
represents.
People have rights in this country that supercede public
opinion, even strongly held public opinion. If we do not
preserve those rights, the flag will then have been desecrated
far beyond the capability of any individual with a cigarette
lighter. But we will go through this exercise anyway.
I wonder if I am the only Member of the Subcommittee who
would be willing to simply read last year's debate into the
record, allow any new Members to say their pieces, consider any
amendments, and move on, since the debate doesn't change from
year to year.
Let there be no doubt this amendment is aimed directly at
unpopular ideas. Current Federal law says the preferred way to
dispose of a tattered flag is to burn it, but there are those
who would criminalize the same act if it was done to express
political disagreement.
Current Federal law, which is constitutionally void, also
makes it misdemeanor to use the flag for advertising or on
packaging. How many Members of Congress, used car dealers, fast
food restaurants, and other seemingly legitimate individuals
and enterprises have engaged in this act which our laws define
as criminal desecration? If I recall, at the last Republican
National Convention, probably the Democratic Convention, but I
recall at the Republican Convention seeing people with flag-
designed sandals, t-shirts, and even shorts. This amendment
would presumably make that law constitutional once more. If
ratified, I think there are more than a few people who will
have to redesign their campaign materials to stay out of jail.
I am proud to welcome an officer of the Port Authority
Police to our committee. No New Yorker who lived through that
day, the days after, and the memorials we all attended could
ever forget their service and how moving it was to see that
flag. I am, however, getting a bit tired of that act of
terrorist barbarism being used to justify a plethora of
political causes. As the President has often remarked, the
people who murdered 3,000 of my neighbors did so because they
hated our free society. But to use that atrocity to justify a
curtailment of our American freedoms strikes me as a
desecration of their memory.
Similarly, many people marched against the war, objected to
the political use of their loved ones' deaths to justify the
war. For example, Rita Lasar became angry when the attacks were
used to justify the war. Her brother died in the North Tower,
refusing to leave his quadriplegic coworker whose son was a
member of Rescue Squad 288 and who died in the Trade Center
said, ``He would not have wanted innocent people killed in his
name.'' She was later arrested for her dissent against the war
with Iraq.
So people who claim the right to speak for the dead of
September 11 show a bit of modesty. I represent that community
in Congress and I can tell you they do not all hold the same
views on this issue. In fact, there is probably more opposition
to this proposed amendment in my district than almost anywhere
else in this country.
People have died for the nation and the rights which this
flag so proudly represents. We should not start destroying the
way of life for which they made the ultimate sacrifice.
Let me just add one comment that what I mean when I say
that this amendment is aimed not really at destroying the flag
or burning the flag, it is aimed at unpopular political
opinions. No one would think, no one would think that if
someone made a movie about World War II and showed actors
playing Nazi soldiers burned an American flag, portraying what
Nazi soldiers did during the war, no one would arrest those
actors and say they did a terrible thing. But if someone in a
demonstration against the policy of whoever the current
Administration is burned an American flag, that is presumably
what this amendment is aimed against.
So the real sin is not burning the flag. Burning the flag
in a movie is okay. Burning the flag to express unpopular
opinions should be made criminal, and that is what this
amendment gets at.
The fact of the matter is, I will say one other thing. No
one is burning flags. This amendment is aimed at a problem that
doesn't exist. The problem may have existed 30 years ago when
this amendment was first proposed, but I'm not aware of any
incidents of flag desecration in the United States, maybe in
Iraq, but not in the United States, in the last 20 or 30 years.
But the point is, people--the point is, people are entitled
to their opinions. The flag represents freedom, and by passing
an amendment to limit free speech, which is what this amendment
is, we are going against the idea that the flag represents. The
idea is more important than the piece of cloth. We should
protect the ideas of the freedom this nation represents, the
idea that the people who fought and died under that flag fought
and died for. We should protect American freedoms and reject
this amendment. Thank you, Mr. Chairman.
Mr. Chabot. The gentleman's time is expired. I will
continue to introduce the panel.
Our second witness this afternoon will be Lieutenant
Antonio J. Scannella. Lieutenant Scannella is a Police
Lieutenant with the Port Authority of New York and New Jersey,
where he has been for the past 15 years. Lieutenant Scannella
was extensively involved in the clean-up of the aftermath of
the terrorist attacks of September 11, 2001, where all but
three of the police officers in his squad perished in the
attacks.
Lieutenant Scannella was involved in saving what is
believed to be the only American flag flying outside the World
Trade Center when the terrorists struck. Since that time,
Lieutenant Scannella has escorted the flag to such major events
as the World Series, the Super Bowl, the 2002 Olympics in Salt
Lake City, numerous parades and civic and community gatherings
across the country. We welcome you here this afternoon,
Lieutenant.
Our third witness is Gary E. May. Mr. May is currently an
Associate Professor of Social Work at the University of
Southern Indiana and the Chairman of the Veterans Defending the
Bill of Rights, an affiliate of the American Civil Liberties
Union. Mr. May is a Vietnam veteran and has received numerous
awards for service in Vietnam, including the Bronze Star with
Combat V, Purple Heart with Star, Vietnam Campaign, Vietnam
Service, and National Defense medals. He obtained his
bachelor's degree with the University of Evansville and
master's degree with the University of Tennessee and we welcome
you here this afternoon, Mr. May.
Our final witness is Professor Richard D. Parker. Professor
Parker is a Professor of Law at Harvard Law School where he has
taught since 1979 and has focused his teachings and writings on
constitutional law. He clerked for such notable American
jurists as Circuit Court Judge Jay Skelly Wright and United
States Supreme Court Justice Potter Stewart. Prior to joining
the Harvard faculty, Professor Parker was an attorney for the
Children's Defense Fund. He holds a bachelor's degree from
Swarthmore College with high honors and a law degree from
Harvard Magna Cum Laude. We welcome you this afternoon,
Professor.
At this time, if I could just advise the panelists of our
rules relative to testifying. Each Member will have 5 minutes.
We actually have a lighting system up there. The red light--
when the yellow light comes on, it means you have got 1 minute
to wrap it up. Then when the red light comes on, we appreciate
you stopping very close to that point. We give a little leeway,
but not a whole lot.
In any event, this hearing will be followed immediately by
a mark-up of this, so if we get finished with this, we
appreciate the committee sticking around.
General Brady, we again appreciate your being here this
afternoon and we are anxious to hear your testimony.
STATEMENT OF MAJOR GENERAL PATRICK H. BRADY, USA (RET.),
CHAIRMAN OF THE BOARD, CITIZENS FLAG ALLIANCE
Major Brady. Thank you very much, sir. The Citizens Flag
Alliance is a nonpartisan organization. We have one mission and
one mission only, and that is to return to the American people
the right to protect their flag.
In 1989, in response to a flag burning by a communist, the
Supreme Court took that right away when they amended the
Constitution by inserting flag burning in the Bill of Rights.
We do not believe that the freedom to burn the American flag is
a legacy of the freedoms bestowed upon us by Madison,
Jefferson, Washington, and the other great architects of our
Constitution.
President Lincoln said, ``If the policy of the Government
is to be irrevocably fixed by decisions of the Supreme Court,
the people will have ceased to be their own rulers.''
Many of us have raised our right hand and swore to protect
the Constitution. We believe that Americans who place their
right hand over their heart and recite the Pledge of Allegiance
take that same oath. Both the pledge and the oath are taken in
the presence of Old Glory to emphasize that our flag is the
symbol of our Constitution. To say that it is just a piece of
cloth is like saying that a wedding ring is just a piece of
metal.
U.S. Representative Bill Pascrell said, ``The Supreme Court
made a mistake.'' He was right. Our Government made a mistake.
The Court has interfered with our Constitution by calling flag
burning speech, and we the people must carry out our oath and
pledge to protect the Constitution and our right to rule by
ensuring that the Court's decision is not irrevocably fixed.
Justice Hugo Black, who I am told is a First Amendment
absolutist, highlighted the Court's error when he said, ``It
passes my belief that anything in the Federal Constitution bars
making the deliberate burning of the American flag an
offense.''
So the necessity and the legitimacy of our cause is beyond
doubt, and so is the support. The legislatures of all 50 States
support us, as do three out of four Americans and 70 percent of
this great body.
But it's important to note that flag burners are not our
primary concern. We will always have flag burners, as we will
always have Americans who hate America. The problem is those
who call flag burning speech. That is a distortion of our
sacred Constitution and it must not be allowed.
Burning the American flag is not speech. Speech is the
persuading power that moves people to the ballot box, and those
elected to the will of the people. Flag burning is the
persuading power of the mobs. It is certainly cowardice, even
terrorism, to take one's venom out on helpless individuals or
objects who cannot defend themselves, and it is moral cowardice
for us to ignore such acts.
Listen to Americans on this. Tommy Lasorda spoke for the
uncommon common Americans when he said, ``Speech is when you
talk.'' General Norman Schwartzkopf spoke for our warriors when
he said, ``I regard the legal protection of our flag as an
absolute necessity and a matter of critical importance to our
nation.''
We have heard from our opponents that the flag that our
troops fight for, that our troops actually fight for the rights
of flag burners. Now, who among them would stand before these
men and women and tell them they are fighting in the sandstorms
of Iraq so that their flag can be burned on the street corners
of America? I am not to say that to my daughter, who is over
there.
U.S. Representative John Murtha spoke for the House when he
said, ``Burning the flag is not speech. It is an act, an act
that inflicts insult, insult that strikes at the very core of
who we are as Americans. Flag burning is not speech.''
Now, we have been diligent in addressing the concerns of
those who support flag burning as speech, yet we wonder why
they fear the democratic process, why they refuse to allow the
American people to decide.
When they say the flag amendment would amend the Bill of
Rights for the first time, we ask, if the Supreme Court in 1989
had voted to protect the flag, would they then have amended the
Bill of Rights?
To those who have difficulty defining an American flag and
express concern over prosecuting people who burn bikinis or
lamp shades or toilet paper marked with the flag, we ask them
simply, ``would they put toilet paper or a bikini on the coffin
of a veteran or on their own coffin?''
For those who say the flag is precious to them, we ask if
they have anything that they love, that is precious to them,
that they would not protect. Of all the precious symbols in
America, only the flag, the most precious of all, is not
protected.
Now, if they fear a tyranny of the majority, that the
majority may exercise their will over a more virtuous minority,
we ask if the minority on the Supreme Court who would have
protected the flag was more virtuous than the majority who
would not, or if the minority that would have elected their
opponent was more virtuous than the majority that elected them.
But legalized burning of the flag goes beyond desecration
of our Constitution. It also desecrates our values as a nation.
Burning the flag is wrong, but what it teaches is worse. It
teaches our children that the outrageous conduct of a minority
is more important than the will of a majority. It teaches that
our laws need not reflect our values and it teaches disrespect,
disrespect for the values embedded in our Constitution, as
embodied by our flag.
We are amazed that so many in Congress who support flag
burning expressed outrage over the decision on the pledge. Why
is saying ``under God'' in the pledge an establishment of
religion and flag burning speech? Both are wrong.
The Court has also said cross burning is protected speech
unless done to intimidate. I wonder if there is ever an example
of cross burning not done to intimidate. One Justice got it
right when he said cross burning has nothing to do with the
First Amendment, and neither does flag burning.
The Constitution is too important to be left to the courts,
and so is the flag. They both belong to the people and it is
time for this body to let the people decide. There are great
and gifted Americans on both sides of this issue and learned
opinions, but only one fact. The American people want their
right to protect the flag returned. Whatever concerns some may
have, I pray that they will muster the courage to believe that
just this once, they may be wrong and the American public may
be right.
Thank you very much, sir.
Mr. Chabot. Thank you very much, General. You went a little
over, but I am not going to interrupt a Congressional Medal of
Honor winner---- [Laughter.]
--so that is why we gave you a little extra time. Mr. May,
we will give you a little extra time, as well. [Applause.]
[The prepared statement of General Brady follows:]
Prepared Statement of Major General Patrick H. 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 to protect their flag.
In 1989, in response to a flag burning by a communist, the Supreme
court amended the Constitution by inserting flag burning in the Bill of
Rights. That decision took away a fundamental right of the American
people, a right we possessed since our birth as a nation, a right
affirmed by the Author of the Bill of Rights, James Madison, a right
defended by Thomas Jefferson, a right reaffirmed by justices on every
court and every Chief Justice of the United States that addressed the
flag in the last century.
We do not believe that the freedom to burn the American flag is a
legacy of the freedoms bestowed upon us by Madison and Jefferson and
Washington and the other architects of our Constitution. And to distort
the work of these great men unable to defend themselves, to put flag
burning side by side with pornography as protected speech is
outrageous.
President Lincoln said: ``If the policy of the government . . . is
to be irrevocably fixed by decisions of the Supreme court . . . the
people will have ceased to be their own rulers''. He also warned:
``Don't interfere with anything in the Constitution. That must be
maintained, for it is the only safeguard of our liberties.''
Many of us have raised our right hand and swore to protect and
defend the Constitution. We believe that Americans who place their
right hand over their heart and recited the pledge of allegiance, take
that same oath. Both the pledge and the oath are taken in the presence
of Old Glory to emphasize that our flag is the symbol of our
Constitution.
U.S. Representative Bill Pascrell said: ``The Supreme court made a
mistake, is not absolute and we should never kow-tow to any other
branch of government regardless of their decision''. He was right. The
Court has interfered with our Constitution by calling flag burning
speech and we the people must fulfill our oath and pledge, and our
right to rule, by insuring that the Court's decision is not irrevocable
fixed.
Justice Hugo Black, a First Amendment absolutists, spoke for our
cause and every Supreme Court save one in the last century, when he
said: ``It passes my belief that anything in the Federal Constitution
bars . . . making the deliberate burning of the American flag an
offense''.
So the necessity and legitimacy of our cause is beyond doubt, and
so is the support. The legislatures of all 50 states support this cause
as do three of four Americans and some 70% of this great body.
But it is important to note that flag burners are not our primary
concern. We will always have flag burners as we will always have
Americans who hate America. Rather, the problem is those who call flag
burning speech. That is a distortion of our sacred Constitution and
must not be allowed.
Burning the American flag is not speech.
Speech is the persuading power that moves people to the ballot box,
and those elected to the will of the people. Flag burning is the
persuading power of the mobs. One should not be allowed to substitute
hateful, violent acts, for rational, reasonable speech, to be heard.
That is the last resort of those who cannot properly articulate
their cause but seek power at any cost. It is certainly cowardice, and
terrorism, to take ones venom out on helpless individuals or objects
who cannot defend themselves. And it is moral cowardice to ignore such
acts.
Listen to Americans on this.
Tommy Lasorda spoke for the uncommon common American when he said,
``speech is when you talk''.
General Norman Schwarzkopf spoke for our warriors when he said: ``I
regard the legal protection of our flag as an absolute necessity and a
matter of critical importance to our nation''.
We have heard from opponents of the flag that our troops fight for
the rights of flag burners. Who among them would stand before these men
and women and tell them they are fighting in the sand storms of Iraq so
that their flag can be burned on the streets of America?
Walter Berns, ``The First Amendment protects freedom of speech, not
expression, and, whereas all speech may be expression of a sort, not
all expression is speech, and there is a good reason why the framers of
the First Amendment protected one and not the other.''
US Rep John Murtha said: ``Burning and destruction of the flag is
not speech. It is an act. An act that inflicts insult--insult that
strikes at the very core of who we are as Americans and why so many of
us fought, and many died, for this country.''
Paul Greensburg, Pulitzer Prize winning journalists said: ``. . .
setting a flag afire is no more speech than vandalizing a cemetery, or
scrawling slogans on a church or synagogue, or spray painting a
national monument--all of which are acts properly forbidden by the laws
of a civilized country.''
We have been diligent in addressing the concerns of those who
support flag burning as speech.
When they say the flag amendment would amend the Bill of Rights, we
ask, if the Supreme court in 1989 had voted to protect the flag, would
they then have amended the Bill of Rights?
To those who say the flag can be protected by statute, we agree but
only after an amendment. The Supreme Court has made it clear that no
statute alone will work.
To those who have difficulty defining the American flag and express
concern over prosecuting people who burn bikinis embroidered with the
flag or toilet paper marked with the flag, we ask if they would put
toilet paper or a bikini on the coffin of a veteran, or their own
coffin.
To those who say the flag is precious to them we ask if they have
anything that they love or is precious to them that they would not
protect. Of all the precious symbols in America, only the flag, the
most precious of all is not protected.
If they fear a tyranny of the majority, that the majority may
exercise their will on a more virtuous minority, we ask if the minority
on the Court, who would have protected the flag was more virtuous than
the majority who would not. Or if the minority that would have elected
their opponent was more virtuous than the majority that elected them.
But legalized flag burning goes beyond desecration of our
constitution, it also desecrates our values as a nation. Burning the
flag is wrong but what it teaches is worse, it teaches that the
outrageous 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 disrespect, disrespect for the values embedded in our
Constitution as embodied by our flag.
We are convinced that our laws should reflect our values. Where in
the Constitution does it say that toleration for conduct that the
majority sees as evil is necessary for our freedom? Toleration for evil
will fill our society with evil. Even those who oppose a flag amendment
profess to be offended by flag desecration. Why tolerate it? What
possible connection does toleration of evil have to the Constitution
and our freedom?
We are amazed that so many in the Congress who support flag burning
expressed outrage over the decision on the pledge. Why is saying under
God in the pledge an establishment of religion and flag burning speech?
Both are wrong. The courts distortions of the First Amendment have
given us pornography, would deny our children the right to pray, to say
the pledge, make it legal to burn the flag but illegal to burn your
draft card, or your money or your mail box, or a tag on your mattress
box. Who can make sense out of it? Only the people.
The court has also said cross burning is protected speech unless
done to intimidate. I wonder if there was ever an example of cross
burning not done to intimidate? Only one justice got it right, he said
cross burning has nothing to do with the First Amendment. Burning a
cross is unlike burning any other symbol in our society and not
intended to communicate anything other than fear and hatred. The same
is true of flag burning, which is also unlike any other symbol in our
society, it is the physical embodiment of the values embedded in our
Constitution.
The Constitution is too important to be left to the Courts and so
is the flag. They both belong to the people and it is time for this
body to let the people decide.
There are great and gifted Americans on both sides of this issue.
And learned opinions, but only one fact--the American people want their
right to protect the flag returned. Whatever concerns some may have, I
pray they will muster the courage to believe that this once they may be
wrong, and the American public may be right. I hope they will have the
compassion to defer to those great blood donors to our freedom many
whose final earthly embrace was in the folds of Old Glory.
Mr. Chabot. Lieutenant Scannella, you are recognized for 5
minutes.
STATEMENT OF LIEUTENANT ANTONIO J. SCANNELLA,
PORT AUTHORITY OF NEW YORK AND NEW JERSEY
Lieutenant Scannella. I am a man of few words, but I will
do my best to express why I feel that the desecration of the
American flag is not just someone expressing their
constitutional right to freedom of speech.
I have been a police officer for the Port Authority for 15
years. On September 11, 2001, all but three of the police
officers in my squad were killed in the attack on the World
Trade Center. These were my friends. I worked with them every
day for many years. I would have family barbecues at my home. I
knew their wives. I knew their children.
In the months that followed, I worked countless hours at
ground zero in the worst of conditions, and I saw things that
men and women should never see. I helped carry the body of one
of my dearest friends. We found his decomposed body months
after he was killed by the collapse of the South Tower. To this
day, the men and women who survived the attack all suffer from
some degree of permanent mental and emotional scarring.
You are all familiar with the torn flag that was recovered
from the World Trade Center. This flag flew out in front of the
World Trade Center on the morning of the attack and was the
only American flag flying there that morning. This flag was
recovered from the rubble 3 days after the attack. The National
Guard that recovered the flag had intended to burn it in order
to dispose of it properly. My partner, Officer Curt Kellinger,
was made aware of this flag. He and I felt and insisted that we
would not let the flag be burned because it meant too much to
us and the friends that we lost. The National Guard respected
our request and gave us the flag back.
We decided that we would display this flag at the memorial
service for Officer Donald McIntyre. With the help of the local
fire department, we displayed the flag by flying it off an arch
that was formed by the ladders of two fire trucks. We had
brought the flag to this memorial service to honor Donny, and
we did.
But then we started to realize that this flag was much more
meaningful than that. At the memorial service, everyone was
gazing at the flag. This flag meant a lot of things to everyone
that saw it that day. This flag had the same meaning that the
flag that we sing about in our national anthem, ``The bombs
bursting in air gave proof through the night that our flag was
still there.'' We started taking the flag to as many funerals
as we could. We wanted everyone to see that our American flag
had survived.
We eventually took the flag to the World Series in New
York. It flew there for all three games in our city. It is hard
to describe or comprehend the emotion and reverence displayed
in New York at those games. This flag was also prominently
displayed at the Super Bowl and both the Veterans' Day and the
Thanksgiving Day parade in New York City.
I hope most of you here watched the opening ceremonies of
the Olympics in Salt Lake City. If you did, then you all
witnessed how powerful and meaningful a cloth can be. This flag
meant a lot of things to everyone that saw it that day. This
flag represents that our country was attacked, our friends and
fellow Americans were brutally killed, but our country was
still united by the symbol.
Desecration of the American flag is not someone's freedom
of speech. It is done to insult, aggravate, and anger
Americans. Any other act that is this offensive is illegal.
Most importantly, it is disrespectful to the men and women that
have died to give us the freedom that we love and have. Thank
you.
Mr. Chabot. Thank you very much, Lieutenant. We appreciate
it. [Applause.]
[The prepared statement of Lieutenant Scannella follows:]
Prepared Statement of Lieutenant Antonio Scannella
I am a man of few words but I will do my best today to express why
I feel that the desecration of the American flag is not someone
exercising their Constitutional right to freedom of speech.
I have been a police officer for the Port Authority of New York for
15 years. During that time, I have risen to the rank of lieutenant. On
September 11, 2001, all but three of the police officers in my squad
were killed in the terrorist attacks on the World Trade Center. Those
killed were friends that I had worked with every day for many years. I
knew their spouses and children. We were all a great big family.
In the months that followed September 11th, I worked countless
hours in the worst of conditions in the heap of rubble and utter
destruction that came to be known as Ground Zero. I saw things that no
man or woman should ever have to see. I helped carry out what remained
of the lifeless body of one of my closest and dearest friends, found
months after he was killed by the collapse of the South Tower. To this
day, the men and women who survived the attack all suffer from some
degree of permanent mental and emotional scarring.
One of the moments that helped keep all of us workers going in the
midst of such chaos was the finding of an American flag in the rubble.
I am sure you are all familiar with the torn flag that was recovered
from the World Trade Center. This flag was believed to have been the
only American flag that was flying in front of the World Trade Center
on the morning of the attack. The flag was found in the rubble and
debris by National Guardsmen. The finding of the flag strengthened the
resolve of the workers at Ground Zero, and I believe the nation as a
whole. It was the survival of this flag that came to symbolize the
strength and resilience that represents the character of our country. A
man does a lot of thinking in such circumstances, and I can honestly
say that I have never felt prouder to be an American. The comfort and
reassurance that this worn and tattered flag has brought, not only to
me but to millions of Americans, is unmatched and irreplaceable. No
other symbol or object could have done so much for so many in such
circumstances.
The National Guardsmen who found the flag had intended to burn it
in order to dispose of it properly. My partner, Officer Curt Kellinger,
was made aware of this flag. He and I felt very strongly about this
great symbol and agreed that we would not let this flag be burned
because it meant too much to us, the friends that we lost, our city
that had suffered, and the nation as a whole. The National Guard
respected our request and gave us the flag.
We decided that we would display the flag at the memorial service
for Officer Donald McIntyre. With the help of the local fire
department, we displayed the flag by hanging it off an arch that was
formed by the ladders of two fire trucks. We brought the flag to this
particular memorial service to HONOR Donny and we did, but I began to
realize that this flag was much more meaningful than that. At the
memorial service everyone was gazing at the flag. This flag meant a lot
of things to everyone that saw it that day. This flag had the same
meaning as the flag that we sing about in our national anthem, ``THE
BOMBS BURSTING IN AIR GAVE PROOF THROUGH THE NIGHT THAT OUR FLAG WAS
STILL THERE.'' We started taking the flag to as many funerals as we
could. I wanted everyone to see that our American flag had survived.
We eventually took the flag to the World Series in New York, where
it flew for all three games in our city. It is hard to describe or
comprehend the emotion and reverence displayed in New York at that
games. The flag was also prominently displayed at the Super Bowl and at
the Veterans Day Parade in New York City, as well small community
gatherings and civic clubs.
I hope most of you here today watched the opening ceremony of the
Olympics in Salt Lake City. If you did, then you all witnessed how
powerful and meaningful a flag can be. The American flag is more than
just a piece of cloth--it is a national asset, the likes of which
should not be defiled. This flag in particular meant a lot of things to
everyone that saw it that day. This flag represented that our country
was attacked, our friends, family and fellow Americans were brutally
killed, but our country was still alive and kicking, united by this
symbol.
I am here today not as a political hack or a crusader with a cause.
Rather, I am here today as a humble American citizen asking that
Congress give protection to a national treasure that was once rightly
protected--an object that serves as the common bond for people of all
backgrounds. The flag is an integral piece of our country's fabric,
sort of like the Grand Canyon or the Washington Monument, neither of
which could be defiled without serious penalties. All I am asking is
that our national symbol, the American flag, be given similar
treatment. It is the least we can do for our family, our country, and
those who have given the ultimate sacrifice--their lives--to serve and
protect it. Thank you for allowing me to testify here today and I will
be glad to answer any questions that you may have.
Mr. Chabot. Mr. May, you are recognized for 5 minutes.
STATEMENT OF GARY E. MAY, ASSOCIATE PROFESSOR OF SOCIAL WORK,
UNIVERSITY OF SOUTHERN INDIANA, EVANSVILLE, IN, ON BEHALF OF
VETERANS DEFENDING THE BILL OF RIGHTS
Mr. May. Good afternoon. 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.
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 those
freedoms. I oppose this amendment because it does not support
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 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 K Company, 3rd Battalion, 27th
Marines following the Tet offensive of 1968 in Vietnam, I
sustained bilateral above-the-knee amputations as a result of a
land mine explosion on April 12, 1968. My military awards have
already been cited. Now, over 35 years after I lost my legs in
combat, I am again called upon to defend the freedoms that my
sacrifices in combat were said to preserve.
It has been a long 35-plus years. I have faced the vexing
challenge of reconciling myself with the reality of my military
history and the lessons I have 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.
Three or 4 years ago, near the anniversary of my injuries
in Vietnam, I had a conversation with a colleague at the
university. I mentioned the anniversary of my injuries to her
and asked her what she was doing in 1968. 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 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 service and sacrifice was in pursuit of protecting the
flag. When confronted with the horrific demands of combat, most
of us who are honest say we fought to stay alive. In my
opinion, 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 Iraq.
I am offended when I see the flag burned or treated
disrespectfully. As offensive and painful as it is, I still
believe that those dissenting voices need to be heard. The
powerful anger that is elicited at the sight of flag burning is
a measure of the love and reverence most of us have for the
flag.
However, 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. Prohibiting this powerful symbolic
discourse would stifle legitimate political dissent. If it is
to be truly representative of our cherished freedoms, the flag
itself must be available as a vehicle to express these
freedoms.
This country is unique and special because the minority,
the popular, 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. Supporting
freedom of expression, even when it hurts, is the truest test
of our dedication to the belief that we have that right.
Freedom of speech and expression, especially the right to
dissent with the policies of the Government, are a cornerstone
of our form of Government. Throughout our history, these
freedoms have greatly enhanced the stability, prosperity, and
strength of our country. These freedoms are under serious
attack today. The smothering, oppressive responses to publicly
expressed misgivings about our incursion into Iraq and ad
hominem attacks against those who dare to express them are
alarming. Supporting our troops does not mean suspending
critical analysis and muffling public debate and discourse.
If we are truly serious about supporting our troops and
honoring the sacrifices of our military veterans, our efforts
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. Veterans from Gulf War I
still have unanswered questions about what is popularly known
as Gulf War syndrome. 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 policy makers. 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 shouldn't stop there. Is
our obligation to protect the flag greater, more righteous,
more just, or more moral than our obligation to help veterans
and their families? I think not.
I have a great deal of pride and admiration for our
country, its people, and its fundamental principles. I am
grateful for the many heroes of our country and especially
those in my family. I believe that all the sacrifices of those
who went before me would be for naught if an amendment were
added to the Constitution that cut back on our First Amendment
rights for the first time in the history of our great nation.
Please listen to these perspectives of ordinary veterans
who know first-hand the implications of tyranny and denied
freedoms. Our service is not honored by this onerous
encroachment on constitutionally guaranteed freedoms.
Protecting the flag is no substitute for provision of services
and supports. Thank you very much.
Mr. Chabot. Thank you.
[The prepared statement of Mr. May follows:]
Prepared Statement of Gary E. May
Good morning. 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.
As a Vietnam veteran who lives daily with the consequences of my
service to my country, and as the son of a WWII combat veteran, and the
grandson of a WWI 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.
This is among the core principles under our Constitution that my
family and I served to support and defend. It would be the ultimate
irony for us to place ourselves in harm's way and for my family to
sacrifice to gain freedom for other nations and not to protect our
freedom here at home.
My late father in law, Robert E. Speer, endured horrible, prolonged
combat as a member of Merrill's Marauders. My older brother, Edward C.
May, saw duty with the Army in Korea during the Vietnam era.
I barely knew my grandfather who died when I was young. I do know
that he saw combat while serving in the Army during WWI. His service
included his being gassed. He never received any government benefits.
My father didn't know all of the details of his father's service, but
he has no recall of grandpa referring to the flag as a reason for his
service and sacrifice. After the war, he returned to his Winslow,
Indiana home and worked to provide for his family.
My Father, Charles W. May, who died nearly a year ago, was a WWII
Army combat veteran who served in the European Theater of Operations
from 1944 to 1946. He saw combat with Battery ``B'' 500th Armored Field
Artillery Battalion, 14th Armored Division. The flag or its protection
was not a powerful motivating force for himself or any of his fellow
combatants. It was the fight for freedom that really mattered.
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 K Company, 3rd Battalion, 27th Marines
following the Tet Offensive of 1968 in Vietnam, I sustained bilateral
above the knee amputations as a result of a landmine 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.
While serving in Vietnam, I never once heard one of my fellow
Marines say they were there protecting the flag. Frankly, most of us
didn't know why we were there, but we knew it was important to do what
was necessary to stay alive. Additionally, most of us there were the
sons of WWII veterans whose decisions to serve were influenced by
family traditions and a sense of what was right and expected of
citizens.
Upon my return from Vietnam, I enrolled at the University of
Evansville where there were occasional student protests of the war. I
felt a strong identity with these protesters, because I too, felt that
the war was wrong and that that feeling demanded expression-after all,
this is what I had served to protect.
I graduated with a Bachelor of Arts in Sociology. I earned my
Master of Science in Social Work degree from the University of
Tennessee in 1974. I am married to the former Peggy Speer of Haubstadt,
Indiana. We have two children, Andrea, a middle school teacher in
Indianapolis, and Alex, a supermarket manager.
Now, over 35 years after I lost my legs in combat, I am again
called upon to defend the freedoms which my sacrifices in combat were
said to preserve. It's been a long 35+ years. I have faced the vexing
challenge of reconciling myself with the reality of my military history
and the lessons I have 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.
A few years ago, near the anniversary of my injuries in Vietnam, 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 in
1968. 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 to 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's
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/her service and
sacrifice was in pursuit of protecting the flag. When confronted with
the horrific demands of combat, most of us who are honest say 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 Iraq.
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.
Supporting freedom of expression, even when it hurts, is the truest
test of our dedication to the belief that we have that right.
Free expression, especially the right to dissent with the policies
of the government, is one important element, if not the cornerstone of
our form of government that has greatly enhanced its stability,
prosperity, and strength of our country. This freedom of expression is
under serious attack today. The smothering, oppressive responses to
publicly expressed misgivings about our incursion into Iraq and ad
hominem attacks against those who dare to express them are alarming.
``Supporting our troops'' does not mean suspending critical analysis
and muffling public debate and discourse.
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
the people like my father, late father in law, grandfather, brother,
me, and others like us who served honorably and proudly for freedom.
The pride and honor we feel is not in the flag per se. It's 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 amendment 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.
The proposed amendment will apparently prohibit yet to be defined
abuses of the flag which are deemed offensive. Who shall write the
definition? Will destroying the flag in the interest of registering
strong objection to a military excursion violate the law? What about
reducing this revered icon to a lamp shade? Would the inclusion of a
flag in a wall hanging violate the law? What if used as a curtain? Who
decides?
If one peruses the pages of the periodicals of the traditional
veterans' organizations, many of which apparently support this
amendment, one will observe many uses of this revered symbol. Do those
who object to a flag motif in clothing have recourse under the proposed
amendment? If the flag can be worn on the uniform shoulder by safety
and law enforcement personnel, is it permissible for it to be worn on
underclothing? Who will check?
The proposal seems unenforceable. It raises the specter of the
``flag police,'' whose duties would include searching out violations
and bringing offenders to the bar of justice. That this is defended in
the name of freedom and in the memory of valiant sacrifices by millions
of this country's veterans is duplicitous and cynical.
If we are truly serious about honoring the sacrifices of our
military veterans, our efforts 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, WWI veterans had to march on this Capitol to obtain
their promised bonuses. WWII 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. In my
area, businesses and churches are soliciting donations to support the
families of U.S. troops in Iraq. 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 policy makers. The dimensions of this impact and
the efficacious responses of funded programs nationwide are chronicled
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. Agent Orange Class Assistance Program. Government Printing
Office). In this volume, Congressman Lane Evans opines that:
``Although the government's legal obligation extends
primarily to veterans, I believe the government also has a
strong moral obligation to provide services to those family
members who are affected by the veteran's experiences. Services
should be offered to children with congenital disorders whose
conditions are related to their parent's military service.
Counseling should be offered to the family members of veterans
with psychological or substance abuse problems related to their
military service. By providing appropriate services and
benefits, through either government or community-based
organizations, the government would admit its responsibility
and offer the assistance that some veterans and their families
desperately need.'' (p. ix)
The programs which were supported by the Agent Orange Class
Assistance Program were later represented by Veterans Families of
America, an organization whose member agencies demonstrated
effectiveness in meeting veteran family needs, but whose continuation
was ended due to lack of funding. I proudly served as a member of the
board of Veterans Families of America.
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 shouldn't stop there. Veterans of Gulf War I are still
left languishing, uncertain if their service exposed them to insidious
health threatening contaminants. Does our obligation to our current
combatants extend beyond labeling them heroes? Is our obligation to
protect the flag greater, more righteous, more just, and 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 protest.
The powerful anger which is elicited at the sight of flag burning is a
measure of the love and respect most of us have for the flag.
Prohibiting this powerful symbolic discourse would stifle
legitimate political dissent. If it is to be truly representative of
our cherished freedoms, the flag itself must be available as a vehicle
to express these freedoms.
This is among the freedoms for which I fought and gave part of my
body. This is a part of the legacy I want to leave for my children.
This is among the freedoms my grandfather was defending in WWI. It is
among the freedoms my father and late father in law defended during
their combat service during WWII.
Please listen to these perspectives of ordinary veterans who know
first hand the implications of tyranny and denied freedoms. Our service
is not honored by this onerous encroachment on Constitutionally
guaranteed freedoms.
Thank you.
Mr. Chabot. Professor Parker, you are recognized for 5
minutes.
STATEMENT OF RICHARD D. PARKER,
WILLIAMS PROFESSOR OF LAW, HARVARD LAW SCHOOL
Mr. Parker. Thank you very much, Mr. Chairman, and I thank
the committee for its invitation to me today.
Let me begin from a premise that will not be controversial,
and that is that Government exists to and only to serve the
people, to serve its interests, but not only its interests.
Government exists also to serve the values of the people.
Freedom of expression is one of those most fundamental of
our values, but it's not the only one. Indeed, the very meaning
of the freedom of expression, its very scope depends on its
accommodation with other values, many of which, in fact,
undergird the freedom of expression itself.
Two things have long been clear about free expression.
First, that at least outside the privacy of the home, it is not
an absolute freedom. Second, it's no less clear that Government
may regulate the content of speech in many circumstances, not
only to deal with tangible harms to particular individuals, but
also to correct generalized intangible harms. Let me give three
examples.
First, obscenity. The Court said very clearly in 1973 and
had assumed back into the 1940's that Government may prohibit
the obscene speech in order to prevent a generalized pollution
of the cultural environment and the degradation of women, in
particular.
Secondly, statements that are knowingly or recklessly false
about the public conduct of public officials which injure the
reputation of those officials. Such statements may be
regulated, may be officially sanctioned, not just in order to
prevent the particular harm to a particular public official,
but also, as Justice Brennan said in 1964, in order to
vindicate the general premises of democracy.
Third example, hate speech. The Court in Virginia v. Black,
of course, recently held that hate speech, cross burning,
particularly designed to or intended to intimidate particular
individuals, may be prevented, but that's not all it said. Go
back to an early 1950's decision, the Boharnay decision. The
Court made very clear in upholding a criminal libel law applied
to prevent the libeling of racial groups that generalized harm
can be done by hate speech and Government may prohibit it.
The prohibition of physical desecration of the flag, thus,
is in keeping with this line of precedents. The value that runs
through them all is the value of community, specifically
national community. This is a value that's crucial to the
freedom of speech, to its robustness, and in particular,
community is a value that is essential to minorities, to
protestors, to dissenters. For their protest or dissent to be
effective, they must make connections with others. They must
invoke the bonds that they share with others. The flag is the
unique symbol, as Martin Luther King well knew, that enables
them to do that.
But Congressman Nadler asked, ``Well, what's the need?''
The need specifically is that the Supreme Court by this five-
to-four vote quite recently held that the flag represents
simply one point of view. The purpose of this amendment is to
correct that mistake on the part of five Supreme Court
Justices.
But then I remember Congressman Frank has asked in the
past, ``Wouldn't it be enough simply for Government to
encourage patriotism, or for all of us to condemn flag
desecration?'' Well, that could be said about obscenity,
couldn't it? That could be said about knowing or reckless false
statements about the official conduct of public officials. Why
sanction that? It could be said about hate speech. Why sanction
that? The same is true here as there, and that is that a
collective response to this kind of problem is often absolutely
essential in order to vindicate the value of community that's
at stake.
Finally, let me say that we should keep in mind that this
amendment is not designed to change the First Amendment. Far
from it. It's designed to restore the meaning that the First
Amendment had for at least a century before the five-to-four
vote in 1989 and to do so through one of the great provisions
of our Constitution, Article V, the amendment process.
Article V, let me conclude by saying, should be understood
for what it is. It is the cornerstone of legitimacy of American
Government. American Government rests on the Constitution, but
the Constitution does not rest on the Supreme Court. It doesn't
rest on five people in robes. The Supreme Court can make some
mistakes and it's the people who have the power under Article V
to correct that mistake, those mistakes, and that is what is
being proposed here. Thank you.
Mr. Chabot. Thank you, Professor.
[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 more than
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 has supported
flag protection. Consistently, lopsided majorities in Congress have
supported it too. In 1989, the House of Representatives voted 371-43
and the Senate 91-9 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% 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 some 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 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, and when
we get more and more used to acts of desecration, then, ``love'' of the
flag, our unique symbol of national community, 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 or 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 thirteen 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, unelected,
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 community 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 community 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 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, no doubt, preaching to the choir. The House of
Representatives voted 371-43 for a flag protection law. Most
Representatives, therefore, rejected the ``censorship'' argument in
1989. 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''--Representatives 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's had an opportunity to see every
reference to it in the media across the country, 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% 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've 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 don't doubt their sincerity. But I
trust I'll 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'll 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's 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 implicit 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. 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 me 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 United States House of Representatives 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.
Mr. Chabot. I recognize myself for 5 minutes for the
purpose of asking questions. General Brady, I will begin with
you if that's okay.
Major Brady. Yes, sir.
Mr. Chabot. With a military career that spanned 34 years,
and now as head of a broad coalition of groups associated with
the military, I'm sure that you've spoken at quite length about
today's proposed amendment with active duty as well as retired
military personnel. Can you give us some sense of the feelings
of veterans and retired soldiers with whom you've interacted as
to their reactions to this amendment and what the veterans you
come into contact with, what do they feel about this amendment?
Major Brady. Yes, sir. Generally, they're no different than
the general population. I do get a chance to get around and
speak to many young people in the military. As I said, my
daughter serves, and she's in Baghdad right now, and I talk to
a lot of her friends.
The tragic thing is that most of them don't know that it's
legal to burn the American flag. They would be horrified to
hear that and to have anybody tell them that they're fighting
for this country, or any veteran who's ever fought for this
country in order that people could be free, to burn the
American flag is truly insane.
I think the young people that I've seen, I think what we've
seen is the birth of another ``greatest generation,'' and I
think that started in New York with the firemen and the
policemen in that action, and I've seen it among the young
people in Iraq. They're just phenomenal. They're so far
superior to what I was and my generation was in terms of
fighters and patriots. It's just phenomenal. But they would be
horrified to have anyone say to them that they're fighting for
the rights of flag burners, without any question.
By the way, he said that, the gentleman from New York said
there had been no flag burnings. There was 87 flag burnings out
in California just a few weeks ago. So this is a thing that has
gone on in America as well as the rest of the world.
But nobody better stand up in front of these troops and
tell them they're---- [Building vibration.]
Maybe that was a retreat.
Mr. Chabot. I don't know, it was pretty loud. Okay. Thank
you, sir. Thank you very much, General.
Lieutenant Scannella, let me ask you the next question, if
I can. Given your experience in escorting the flag around the
country and having an opportunity to talk with many folks about
this and seeing what they have felt about coming into contact
with this flag, and there's this question about whether it's
just speech. If someone were to damage or destroy or burn the
flag that you've been escorting around that was at ground zero,
do you believe that most Americans would simply say that this
was just free speech and, therefore, that should be protected?
Lieutenant Scannella. No, I don't believe most Americans
would feel that it's free speech. As the General said, I don't
think most Americans know that it's legal to burn the flag. My
experience with the emotion that poured out of people when they
saw the flag or they talked about the flag or they touched the
flag was very emotional, very defensive, very patriotic.
Like I said, it brings out a lot of emotion from a lot of
people, and I don't mean just our flag. We also, after 9/11,
saw how all the flags were out in front of everybody's home.
People that never displayed a flag went out and bought a flag.
People stuck them on their car. They stuck them everywhere. The
American flag is a symbol and it goes right to the core of
every American in this country.
Mr. Chabot. Thank you. Professor, let me ask you a question
real quick. My time is running out. I have got one for you, Mr.
May, but I am running out of time here.
Do you believe that this proposed amendment to the
Constitution carves out an exception to the First Amendment or
was it the Supreme Court's decision in the Johnson case that
carved out an exception to our traditional view of flag
burning, and does this measure really amend the Bill of Rights
as opponents of the amendment sometimes have claimed?
Mr. Parker. Absolutely not. It was the Supreme Court
majority of five which, in effect, amended the First Amendment.
This is designed to restore the traditional meaning of the
First Amendment.
Mr. Chabot. And is there anything short of amending the
Constitution at this point, given the decision of the Supreme
Court, is there anything else we can do to protect the flag?
Mr. Parker. Absolutely nothing, sir.
Mr. Chabot. My time is expired and I will at this point
recognize the gentleman from New York, Mr. Nadler, for 5
minutes.
Mr. Nadler. Mr. May, you testified that you've worked with
veterans over the years and you're a disabled Vietnam veteran
yourself. It's all very well to see all this emotional
testimony about veterans, but do you believe that Congress in
practical terms have provided adequate assistance to our
veterans in terms of health care and other necessary benefits,
or do you think present Government policy adequately shows
respect for our veterans?
Mr. May. I think there is substantial distance to be
traveled yet for the public response to be reflective of what I
would deem to be a true commitment to veterans and their
service. For example, in my area, we have veterans who need to
wait months in order to get an appointment with the local VA
outpatient clinic. In my own case, I've been waiting for weeks
now to get authorization to be evaluated for new prostheses. In
my case, my need is directly attributable to my service, since
I was injured while I was in the service.
I think, really, an unmined area, though, for services and
to consider the impact of combat, is on families, as I
indicated in my testimony. The Agent Orange Benefits Act of
1996, that was a long time ago, but that, for the first time,
extended benefits to children of Vietnam veterans whose health
conditions might be attributable, or where there is a fair
amount of evidence that it was attributable to the veteran's
service in Vietnam and exposure to Agent Orange. There's a lot
we can do yet.
Mr. Nadler. Thank you. Professor Parker, let me say before
I ask you the question that I think everyone who opposes this
amendment on this panel certainly in Congress loves the flag as
much as anyone else. The question is whether we can impose--is
whether it's proper as an expression of American freedom to use
the criminal law to punish someone who disagrees with us.
Let me ask you a question. Do you think that it would be
right to arrest actors in a film or a play who, playing Nazi
soldiers, burn an American flag?
Mr. Parker. It would all depend on what was the applicable
statute, wouldn't it? If the statute----
Mr. Nadler. You know perfectly well, I assume, that no one
would use a statute to arrest actors who, as part of portraying
Nazi soldiers burning a flag, I don't think anybody would
arrest them.
Mr. Parker. I can't imagine they would, but I don't--but
I----
Mr. Nadler. Okay. Now, but on the other hand, on the other
hand, the real purpose of this amendment is that people who
aren't actors who do the exact same act, using that to express
their disagreement with the policy of the current Government,
that should be criminalized. That's what you're testifying,
essentially.
Mr. Parker. Again, I'm sorry, but it would depend on what
the applicable statute was, which is up to Congress. The
amendment----
Mr. Nadler. Well, but the applicable statute that this
amendment--the only purpose of this amendment is to make a
statute possible that would make criminal the burning of the
flag, right?
Mr. Parker. Well, would there be an intent element? Most--
--
Mr. Nadler. Intent for what? Intent to burn the flag, or
intent by burning the flag to express an opinion that we don't
approve of? That's the key.
Mr. Parker. Well, I doubt the latter would be anything
Congress would write into the law, but Congress might add an
intent----
Mr. Nadler. But what does desecration mean? When we burn
the flag to dispose of it respectfully, that's not desecration.
Mr. Parker. That's right. Yes.
Mr. Nadler. When someone burns the flag to say that he
doesn't agree with invading Iraq or the Vietnam war or
whatever, that's desecration, right?
Mr. Parker. There's no question that what Congress is
empowered to do by this amendment is to regulate content, but
not to discriminate by point of view. The flag doesn't stand
for any particular policy. It doesn't stand for the flag. It
stands for----
Mr. Nadler. So in other words, in other words, burning a
flag per se is neutral. It may be done properly to dispose of
it. It may be done harmlessly by actors in a play portraying
villains, such as Nazi soldiers. But if done by people with the
intent of expressing an unpopular point of view, that's
desecration?
Mr. Parker. It could also be desecration if they were
expressing a popular point of view.
Mr. Nadler. Could you ever see such a prosecution?
Mr. Parker. I suppose so, sure. Again, Congress is the
group that's empowered here. I do trust Congress. I don't----
Mr. Nadler. I don't trust--let me say this. I don't trust
Congress. [Laughter.]
I certainly do not trust Congress to----
Mr. Chabot. Mr. Nadler and I finally agree on something.
[Laughter.]
Mr. Nadler. I do not trust Congress or any other
legislative body to protect unpopular opinions. That's why we
have the Bill of Rights. In the Supreme Court in a 1943
decision, during the middle of World War II, upholding the
right of Jehovah's Witnesses--I'm sure you are familiar with
the decision, Professor--upholding the right of Jehovah's
Witnesses to refrain from the compulsory recitation of the
Pledge of Allegiance in public schools, a decision which was
met with similar denunciations and even violence the flag
burning decision was met with, Justice Jackson, in explaining
that decision, said, ``The very purpose of a Bill of Rights was
to withdraw certain subjects from the vicissitudes of political
controversy, to place them beyond the reach of majorities and
officials and to establish them as legal principles to be
applied by the courts. One's right to life, liberty, and
property, to free speech, free press, freedom of worship and
assembly, and other fundamental rights may not be submitted to
a vote. They depend on the outcome of no elections.''
It seems to me that what we are really debating here is
whether we agree with Justice Jackson that people whose views
we hate, whose action in burning a flag, an action I would
detest personally, to express a view that I may agree with or a
view that I may detest, but nonetheless, the Constitution
protects their right to do those things as free speech and the
people who are proposing this amendment are saying it should
not protect that form of expression.
Mr. Chabot. The gentleman's time is expired. The witness
has an opportunity to address the question.
Mr. Parker. Briefly sir, I guess, then, that by the logic
of your argument, all hate speech regulation would be wrong.
One comment on Justice Jackson. He said that the Constitution
removes, or the Supreme Court's interpretation of the
Constitution removes issues from the control of majorities.
That's technically right, but it doesn't remove them from the
control of super-majorities. That's the point of Article V of
the Constitution. The people have the right to amend the
Constitution and they may use that right to correct Supreme
Court decisions that were wrongly decided.
Mr. Nadler. May I have one extra minute to comment on this?
Mr. Chabot. The gentleman's time is expired. With unanimous
consent, the gentleman is granted one additional minute, if he
stays within the minute.
Mr. Nadler. I will stay within the minute. Clearly, we have
the right to amend the Constitution. No one denies that. The
whole point of the Bill of Rights, though, is that we should
extend freedom of speech, freedom of worship, even to people we
hate, even to people whose views we hate, freedom of speech to
people whose views we hate, freedom of religion to people's
religions we can't stand, and that shouldn't be subject to
popular votes. Obviously, we could amend the Constitution. We
could amend the Constitution to make the country a tyranny. It
doesn't mean it's a good idea.
Mr. Parker. Absolutely.
Mr. Chabot. The gentleman's time has expired.
The gentleman from Iowa, Mr. King, is recognized for 5
minutes.
Mr. King. Thank you, Mr. Chairman.
I direct my first question to Mr. May. The statement was
made in opening remarks here before the testimony that those
who support this amendment value the symbol more than the
freedom, and I direct this question to you, Mr. May, as one
whom I think is the most likely to be able to shed some light
on that statement, since I connect with that intellectually.
Mr. May. My interpretation----
Mr. King. Yes.
Mr. May.--of that statement? Well, I think some of the
proponents have merged the flag with the rights and the
freedoms and the values that we thousands, millions of veterans
have fought for over the years, and it's as if the flag, which
is the symbolic representation, becomes that which it
represents rather than just a symbol of that. So if we destroy
the flag, implicitly, we destroy those freedoms.
Mr. King. If we have our freedoms and our liberty, those
things embodied in the Declaration and the Bill of Rights on
the one hand, and the symbol of the flag on the other hand, and
we have the choice between the two, can you conceive of an
American valuing the symbol of the flag more than the freedoms
that it represents? Is that a conceivable concept for you as a
patriotic American?
Mr. May. Well, I think to the extent that, as I said, some
seem to have merged those two, then I think it is something
that I am seeing and have seen, that people seem to be willing,
not because of that clear distinction that you point out but
because of the absence of a bright line, have been willing to
forego or move away from some of those freedoms in the interest
of preserving the symbol of those freedoms.
Mr. King. But if we have that distinction, then it is a
difficult thing to define, would you grant that?
Mr. May. If we have the distinction, I think it's very easy
to define and I think under those circumstances, more people
would side for protecting that which is represented by the flag
than would side with protecting the flag itself.
Mr. King. Thank you, Mr. May. The Americans I know stand
for the freedom.
But I would direct a question then to General Brady, and
this remark was made in testimony and you said that if we
approve this amendment, I believe that all the sacrifices of
the people that went before me would be for naught. Mr. May's
statement. How does that resonate with you as a holder of the
Congressional Medal of Honor?
Major Brady. You know, my view of this thing is that what
we're really talking about here is the Constitution. All the
soldiers that I ever knew, all the people that I ever knew that
went into combat, that's what they were fighting for. In a more
practical sense, in a more immediate sense, they were fighting
for their buddies and their own lives and everything. But the
thing that got them there, the thing that motivated them was
the Constitution.
The flag was a physical embodiment of the values embedded
in that Constitution and that's why more Medal of Honors have
been given for flag-related actions than for any other action.
They died for that flag, but they did not die for a piece of
cloth. They died for the values embedded in that flag and those
values are in our sacred Constitution.
So, you know, it's not the flag, as we say, stupid, it's
the Constitution that this is all about, and that's what
concerns most of us.
Mr. King. Thank you, General Brady. There has been so much
powerful testimony here, I don't know that I can enhance this
with any further question except to make the statement that in
this city this spring, I have watched flags desecrated by the
hundreds and it is a chilling and saddening thing to see going
down the streets of Washington, D.C.
Thank you, Mr. Chairman. I yield back the balance of my
time.
Mr. Chabot. Thank you, Mr. King.
The gentleman from Virginia, Mr. Scott, is recognized for 5
minutes.
Mr. Scott. Thank you, Mr. Chairman.
Mr. May, I just want to let you know that every time we
consider the constitutional amendment, there is virtually every
time a concurrent slashing of veterans benefits. Just in the
last couple of weeks, we voted to cut veterans' benefits,
veterans' health care, disability benefits $28 billion, and
then we come up with this. So, I mean, you have to understand
what the process is.
Some things have been said here. The Chairman mentioned
stealing somebody's flag and burning it. That's illegal. I
mean, that's not what we're talking about here, and General
Brady, you mentioned, you kept talking about burning the flag
and didn't know it was legal to burn the flag, was that your
testimony?
Major Brady. No. What my testimony is, that the vast
majority of the American people do not know that it is legal to
burn the American flag and there have been three or four
arrests recently by policemen of people who desecrated the
flag, the policemen themselves not being aware that what that
person did was legal.
Mr. Scott. We heard somebody talking about all the flag
burnings they've seen. The only time I've seen the flag burned
was a flag burned by the American Legion. The photos in the
paper--I'm saying what I have physically, what I have seen with
my eyes, and are more flags burned by Boy Scouts and the
American Legion or by political protestors?
Major Brady. You're talking about the retirement of a flag?
Is that what you're talking about?
Mr. Scott. Yes.
Major Brady. You think that's a desecration of the flag?
Mr. Scott. Oh, okay. We're talking not burning, we're
talking about desecration?
Major Brady. Desecration means to put to unworthy use. When
you retire a damaged flag, that is not----
Mr. Scott. Okay. Now we're getting there. So we're not
talking about burning the flag. We're talking about disrespect.
Major Brady. Yes. It says desecrated. It doesn't say
burned.
Mr. Scott. Okay. Now we're getting there. And Professor
Parker said we're talking about content, so as the gentleman
from New York said, if you burn the flag while you're saying
something respectful, that's okay. That's your testimony?
Major Brady. It's certainly not my testimony.
Mr. Scott. Well, if you burn the flag and say something
nice and respectful while you're burning the flag, that would
be okay?
Major Brady. If it's a worn-out flag and it's done by the
Legion, certainly--and, in fact, they do----
Mr. Scott. If you burn the flag and say something
insulting, then that should be a criminal act.
Major Brady. I see, yes. One thing is an act and the other
thing is free speech. You're free to say anything you want
about the flag. You're just not free to burn it.
Mr. Scott. No, no, we already agreed that burning the flag
was okay. You can't have it both ways. You said the American
Legion, retiring a worn-out flag, can burn it. That's okay.
Major Brady. Yes, but that's conduct.
Mr. Scott. That's content, okay. Now we're understanding
where we're going. If you say something nice--am I right, if
you say something nice and respectful as you burn the flag, you
want that to be okay. If you say something insulting while you
burn the flag, you want that to be a criminal act, is that
right?
Major Brady. I think it depends on the condition of the
flag. I don't know really where you're going, but if you burn a
flag, a perfectly good flag, that should not be legal according
to the Constitution. That is not speech. Whatever you say is
fine.
Mr. Scott. How about let's get to disrespect and
desecration. Is violating the United States Code title IV
desecration?
Major Brady. You've got to help me, Professor Parker. I
don't know where this guy is going. I don't know what that is.
Mr. Parker. Does that have to do with the flag etiquette?
Mr. Scott. That's the flag code. If you violate the flag
code, is that desecration?
Lieutenant Scannella. If I can help you here, I did some
extensive research on the flag considering my involvement with
it. United States Code clearly states that when the flag is no
longer a fitting emblem for this country, then it should be
destroyed, preferably by burning, when it is no longer a
fitting emblem.
Mr. Scott. Okay. Tell us how--you're saying it's okay to
burn the flag as long as you're saying something respectful in
a ceremony----
Lieutenant Scannella. No, sir, I did not say that. No. When
it is no longer a fitting emblem. When a flag needs to be
retired----
Mr. Scott. Then it can be burned, is that right? I mean, I
only have 5 minutes. It's okay to burn the flag as long as
you're saying something respectful when you burn it----
Lieutenant Scannella. No, sir.
Mr. Scott.--if it's worn out.
Lieutenant Scannella. No, sir, not according to the--not
according to the United States Code.
Mr. Scott. If it's worn out and you burn the flag and say
something respectful, it's okay. That's your testimony.
Lieutenant Scannella. My testimony is just what I read----
Mr. Scott. And if it's worn out----
Lieutenant Scannella.--from the code.
Mr. Scott. And if it's worn out----
Lieutenant Scannella. When it is no longer a fitting
emblem, it should be destroyed, preferably by burning.
Mr. Scott. Okay.
Lieutenant Scannella. You can interpret that----
Mr. Scott. Wait a minute----
Lieutenant Scannella.--the way you choose.
Mr. Scott. And suppose you say something insulting while
you destroy a worn-out flag.
Lieutenant Scannella. We're here to clarify that. That's
why we're here, to make that illegal.
Mr. Scott. Illegal, okay. So we agree.
Lieutenant Scannella. Yes, sir. No, we don't agree.
Mr. Scott. Well, we don't agree on what we're going to do
with the act----
Lieutenant Scannella. No, we don't----
Mr. Scott.--but you keep switching back and forth. It's a
very simple question. If you----
Lieutenant Scannella. I believe I've answered your
question, sir.
Mr. Scott. Well, you certainly have.
Mr. Chabot. The gentleman's time has expired.
Mr. Scott. May I ask consent for one additional minute, Mr.
Chairman?
Mr. Chabot. Without objection.
Mr. Scott. Title IV of the U.S. Code says, flag and seal,
seat of Government and the States, and goes on and on about the
proper way to display the flag, use the flag, respect for the
flag. Title IV of the U.S. Code, section 8, subsection D says,
and I quote, ``The flag should never be used as wearing
apparel.'' You're familiar with that part of the U.S. Code,
anybody? Is the gentleman in the front row desecrating the
flag, wearing it as wearing apparel?
Mr. Parker. Could I respond, sir?
Mr. Chabot. Yes.
Major Brady. It's not a flag.
Mr. Scott. Oh, it's not a--well, what is a flag?
Major Brady. The flag is clearly, clearly defined, and in
fact, it's defined by the Congress. A fifth grader knows what a
flag is.
Mr. Scott. So it's a flag if it looks like a flag?
Mr. Chabot. The gentleman's time has expired.
The gentleman from Tennessee is recognized for 5 minutes.
Would the gentleman yield to me for just 1 minute, for not even
a minute----
Mr. Jenkins. Yes, Mr. Chairman.
Mr. Chabot.--for just a moment? Thank you. I appreciate the
gentleman yielding.
Just to clarify this, I'd like to read what it is that we
are talking about. It's just a few words. It says, ``The
Congress shall have power to prohibit physical desecration of
the flag of the United States.'' So that's all this says. There
are, as we know, ceremonies that occur in veterans'
organizations periodically around the country to respectfully
destroy a flag when it has become worn out, and I think that
that is clearly, and common sense differentiates that from
someone in some sort of demonstration--I don't even want to
discuss what has happened during certain times at certain
demonstrations with the flag, but among other things, sometimes
they are burned. That's very different from a veterans'
organization that is destroying a worn-out flag.
I thank the gentleman for yielding and the gentleman is now
recognized.
Mr. Jenkins. Thank you, Mr. Chairman. I don't have any
questions. This is my fourth term in the House of
Representatives and we've had this discussion every session
that I've been here. I concluded long ago that any questions I
might ask would not change the opinion of those whose opinions
differ from mine, and certainly the questions of others will
not change my opinion. I'm ready to support this amendment,
again, for the fourth time, and I will yield the balance of my
time to the Chairman if you have additional questions.
Mr. Chabot. I thank the gentleman. I thank the gentleman
for yielding. The only thing that I would comment, when the
gentleman talks about the discussions on one side or the other
aren't going to persuade the folks on the other side whose
minds are already made up, that's probably true, not only on
this issue but many of the issues that we deal with in
Congress, particularly in this committee. But I thank the
gentleman for yielding and I'd like to get to the mark-up
relatively soon, so I'm not going to take up any more time for
questions. The gentleman's time is expired.
The gentleman from North Carolina, Mr. Watt, is recognized
for 5 minutes.
Mr. Watt. Thank you, Mr. Chairman. I don't think I could
have said it any more eloquently than my friend from Tennessee.
I've been here--how many times have we dealt with this, six,
seven, eight----
Mr. Chabot. You've been here longer than me.
Mr. Watt. Well, I've been here 11 years. I'm just not sure
we've dealt with it every single year that I've been here. But
if we've done it every year that I've been here, we've done it
11 times, and there are two things that I've found from the
prior debates.
Number one is the same thing that my friend, Mr. Jenkins,
said. There are strongly held beliefs on both sides of this
issue and probably none of the testimony is going to change any
opinions.
But the second thing I think we established three or 4
years ago at least was that this is not an issue that deals
with patriotism. I don't think there's an unpatriotic person at
this witness table here, and I don't think there's an
unpatriotic person in the audience here. But I also don't think
there's an unpatriotic person in the Congress. For those who
make this issue a substitute for--regardless of which side
you're on, for whether you are a patriot or not, I think this
is really a discredit to the debate and to the deeply-held
beliefs that people on both sides of this issue have had.
So I don't have any questions of the panelists. I just hope
that when we get to the floor, we can have the kind of debate
that I think we succeeded in having 1 year, I think it's two or
3 years ago. We really had a high-level, civilized debate where
all of us really looked like patriots and it didn't deteriorate
into a name-calling contest where one side was calling the
other unpatriotic and the other side was calling the other side
unpatriotic.
Maybe I'll say more about that when we get to full
committee, but I just think we ought to go on and do what we've
got to do. Even though Mr. Jenkins and I are on opposite sides
of where we come out on this issue, I think his comments really
speak for me on this issue. I yield back.
Mr. Chabot. Thank you. The gentleman's time has expired.
The gentleman from Indiana, Mr. Hostettler, is recognized.
Mr. Hostettler. Thank you, Mr. Chairman. My questions will
go more to the issue of why Congress is here today deliberating
on this very important issue, a provision which I strongly
support, even though I generally do not support amending the
Constitution. I think that the fact that we are amending the
Constitution to protect one of the true symbols of America is
vitally important.
We have come here today because five individuals in black
robes have determined that this is protected speech, while I
think, Professor Parker, you talked earlier about the idea of
cross burning was not protected speech. And so the finicky,
haphazard opinions of the five individuals have brought us to
the point where Congress is deliberating and two-thirds of us
have to pass it in the House and the Senate because five people
have decided that this type of behavior is a different type of
behavior than other types of behavior, and that's troubling to
me.
I think it was troubling to the Framers of the
Constitution, too, in the discussion between the Anti-
Federalists and the Federalists, the idea that the judiciary,
that life-appointed, unaccountable to the populus at large
would make such profound impact statements on policy, and
policy essentially in our country whereby the will of the
majority that should be generally exercised through the
legislative process, through the Article I branch, that we find
ourselves here not being able to do it by normal law making
procedure but by the super-majority that was discussed earlier.
My question, Professor Parker, you probably understand the
writings of the Anti-Federalists and the Federalists with
regard to the Constitution, the idea that we are here today
because five people in black robes have decided that we must
come here and that two-thirds of the House and two-thirds of
the Senate must confer to amend the Constitution when they can,
in fact, say that this type of behavior is protected and this
type of behavior is not protected by the Constitution.
Do you find that the concerns of the Anti-Federalists are
being realized today as we meet and that, in fact, some of the
folks that our first witness talked to, folks like Hamilton and
Madison and Jay and Washington, when they penned the
Constitution, when they said Article I, Section 7 is how we
make laws and Article V of the Constitution is how we amend the
laws, are those concerns that some of the people at the
founding of this country had with regard to the judiciary, are
those, in fact--are we realizing them today, just today?
Mr. Parker. Yes, sir. I believe we are, actually. I don't
believe either the Federalists or the Anti-Federalists had in
mind the kind of very active judicial review that we've become
familiar with over the last century. Remember, it really only
began around 1900. Up until then, the Supreme Court only two or
three or four times intervened in a major way in American
political life.
In the 20th century, the Court sometimes, of course, played
an absolutely vital role. Think of Brown v. Board of Education.
On other occasions, for decades, it has now seemed to have done
bad work for America. Think of the first four decades of the
20th century.
Most recently, the Court, as I'm sure you're aware, sir,
has become more and more self-confident, shall we say,
announcing that it is the voice of the Constitution, and I
wouldn't be surprised if Congress would have something to say
about that.
Mr. Hostettler. But even in, for example, you mentioned
Brown v. Board of Education, in the practical workings of
Government subsequent to Brown v. Board and then Aaron v.
Cooper--I watched recently on a C-SPAN program a discussion by
a professor from the Kennedy School of Government--actually, I
don't have his name, but highlighted the fact that, in fact,
even with Brown v. Board, that it was actually ultimately the
act of Congress in the Civil Rights Act of the first half of
the 1960's that actually gave power to the idea that there
should be equality in America.
And so it was through those legislative initiatives,
because the Court, in fact, even as late as the 1950's and the
1960's really didn't have the power, as they don't today, to
enforce their own decision, and so Congress had to move and had
to act to make civil rights a reality in this country, isn't
that----
Mr. Parker. That's absolutely true and that fact is often
forgotten, that there was not much real desegregation of the
public schools until the end of the 1960's and it was Congress
that did the heavy lifting.
Mr. Hostettler. Okay. And so, once again, we find
ourselves, the will of the majority of the people through the
regular legislative process thwarted by this perception that
five people in black robes must bring about change with two-
thirds of the vote of the House of Representatives, two-thirds
of the vote of the Senate, in order to amend the most sacred
document in America--well, next to the Declaration of
Independence, I will say--to amend this great document in order
to do what a vast majority of Americans believe is common
sense, and that is to protect a symbol that many veterans are
awestruck by when they come in contact with it, and----
Mr. Chabot. The gentleman's time is expired, but--I didn't
mean to cut you off there, but----
Mr. Hostettler. No, no. I was pontificating, Mr. Chairman--
-- [Laughter.]
--and I apologize for that----
Mr. Chabot. I didn't say that.
Mr. Hostettler. That's right. But I yield back the balance
of my time.
Mr. Chabot. The gentleman can respond to the question.
Mr. Parker. I would just say that one----
Mr. Chabot. I kept trying to find a pause there somewhere,
John. I didn't want to interrupt you. [Laughter.]
Mr. Hostettler. That's why I don't have any periods in any
of my statements, Mr. Chairman. [Laughter.]
Mr. Chabot. You may respond.
Mr. Parker. One function of a constitutional amendment is
to send a message to the Supreme Court, a message that I think
they could use hearing at this point.
Mr. Chabot. Thank you very much. The gentleman's time is
expired.
The gentleman from Florida, Mr. Feeney, is recognized for 5
minutes.
Mr. Feeney. Thank you, Mr. Chairman.
The first thing I'd like to do is to associate myself with
Mr. Watts's remarks, and that is especially on sensitive issues
like this, ad hominem arguments rarely shed much light, but
often generate a lot of heat, and I happen to agree with him
greatly.
But having said that, any time I get an opportunity to ask
questions of a Harvard law professor as opposed to the other
way around, I'm going to take it. I'm intrigued and actually
fascinated by your argument that there is a substantive
difference between a restorative amendment to the Constitution
as opposed to an undermining amendment, and actually, to follow
up with that, you know, after Marbury, the Court has announced
that it is emphatically within the province of the Court to say
what the law is, but a lot of us happen to believe that,
ultimately, what the Court says the Constitution means is
correct when they were correct, and when they were wrong, the
Constitution still speaks for itself. And after all, all of us
in the executive and the Congressional and in the judicial
branch take the same oath to uphold the same Constitution.
Historically, I think it was President Jackson that took
issue with the Supreme Court's decision in the National Bank
case and actually vetoed on constitutional grounds where he
stood squarely against the decision of the Supreme Court, and,
of course, Lincoln in his famous debates with Douglass took
issue with the Court's decision in the Dred Scott case.
Here, we have an instance where 48 or so of the 50 States'
duly sworn legislatures agree to uphold the Constitution,
understood what free speech was, and nonetheless passed a law
prohibiting flag burning. We've got a case where we've got 200
years of Federal jurisprudence that never struck down flag
burning and we've got a five-four majority that basically says
that free speech includes not just speech, but includes
actions, including burning the United States symbol.
So if you could deal with the--I'm fascinated by the issue
of the difference between a restorative amendment and an
undermining amendment, if you could elaborate a bit on that.
Mr. Parker. As you suggested, sir, the position that you're
elaborating was Lincoln's position. It was Jefferson's
position. It was Jackson's position. It was Franklin D.
Roosevelt's position. Let's take Lincoln in particular.
Throughout the debates of the 1850's, Abraham Lincoln said
that he, of course, respected the Supreme Court. He respected
its decision in the Dred Scott case, but he believed it was
wrong. He believed that he had----
Mr. Feeney. Well, didn't he say that, not necessarily that
it was wrong, but that it was limited to the effect on the
parties themselves and not to others?
Mr. Parker. Well, he did say that, but he went farther. He
said it was just a wrong and mistaken interpretation of the
Constitution and he clearly took the view that elected
officials, politicians, and citizens have a right to disagree
with the Court, to interpret the Constitution themselves, just
as you said.
Mr. Feeney. And finally, and I know the chair wants to get
up to mark-up, as we all do, but finally, is there anything if
we pass this amendment that would prohibit any American from
expressing through actual speech his or her position on any
given issue in the political forum today?
Mr. Parker. Absolutely nothing. This amendment has only to
do with physical desecration, not words. That's where I would
differ with Mr. Scott, with Congressman Scott. It's strictly
acts, not words.
Mr. Feeney. I thank you and yield back the balance.
Mr. Chabot. I thank the gentleman for yielding back.
The gentleman from Virginia, Mr. Forbes, is recognized for
5 minutes.
Mr. Forbes. Thank you, Mr. Chairman. Normally, I follow the
good advice from my friend from Tennessee, but in this
situation, I want to take just a few minutes and tell you why I
think this amendment is so important.
You know, when you hear it discussed, people love to blend
apples and oranges. They love to give you red herrings that you
try to chase so you don't focus on the real issue that is
before us.
It just baffles me to say that you're going to refuse to
pass an amendment to protect the American flag because we don't
give adequate services to veterans. What we need to be doing is
doing both, and we can do both.
To ask if we would prosecute actors for portraying flag
burners in a play is just as ludicrous to me as saying we would
prosecute actors portraying murderers in a play if they were--
just as if they were murderers.
And some of the same people--I'm not talking about
particular people in this room, but who would say we need to
protect flag burning and obscenity are the first that say we
should limit individuals in spending their money to have
political speech. Can you imagine some of these same
individuals, if we said an individual ought to be able to fire
a cannon on his own property or fire a gun in the city limits
if he wanted that as an expression of freedom of speech?
Nobody here, nobody questions that if this amendment is
passed by the American people, it will be just as much a part
of a Constitution as any other provision. The question,
therefore, is simple. Is the American flag of such importance
to the American people that their elected representatives
should have the right to protect the desecration of that flag?
I believe the people should decide. I think,
overwhelmingly, they would say yes, and let me tell you why I
say yes. It's because of my 17-year-old son.
My 17-year-old son loves one thing in life, basketball,
that's it, nothing else. He doesn't like politics, doesn't like
anything else. But a week ago, I had something come in the mail
where I found that he had won the number one essay in Virginia
on patriotism, and I read it, and let me tell you what he said.
He said he was an ordinary teenager who talked about
ordinary things. His friends talked about girls, how lousy
their basketball coach was, fixing up his '81, 1981 Jeep. But
then he talked about his grandfather, who was also very
ordinary, he said, because when he was 19 years old, he did two
things. He married his grandmother, but then he also went to a
little place called Normandy, and a few weeks after the
invasion when he was there, this 17-year-old boy said, ``I
can't imagine how you can get 19-year-old boys to run off of
ships and boats and landing vehicles in the face of machine
guns firing at them.''
He talked about September 11, when you would walk around
Washington, DC, with smoke coming up at the Pentagon, and the
only thing that would really unite this country was that the
American flag was still flying strongly over the Capitol and
across this great city.
And then he told something else. If you look around this
room and you see the veterans in here, and I don't mean to
offend any of them, I want to just tell you this, though, most
of the time when you look at people, you've got a frown and
you've got a snarl. I mean, that's him, not me. But, he said,
the one thing that will bring a tear down the eye of the most
hardened veteran is the American flag and when they see that.
And he said that the thing that kept him from being
ordinary, the thing that united him with his grandfather and
the thing that united him with all those people who did heroic
things on September 11 was when he could hold his flag up high.
And I would just suggest to all those who oppose this
amendment that this is something the American people believe is
worth protecting and we should pass this amendment to be able
to give the Congress the right to do that. Thank you, Mr.
Chairman.
Mr. Chabot. Thank you very much. [Applause.]
Thank you, Mr. Forbes. All the Members have had an
opportunity now to ask their questions, so I want to thank the
panel for coming this afternoon and testifying. I think all
four of you did an excellent job and we appreciate your
willingness to come in and we particularly appreciate those of
you who have given such--that have served your country so
honorably, and thank you very much for being here.
At this time, we are going to move into the actual mark-up
of this bill, so you are welcome to stick around. This should
not take a terribly long period of time, but I guess our clerk
will be moving down to the table down here to take up, so if
you all want to move back into the audience. If anybody has to
leave, they are welcome to do that, but we are going to move
right into the mark-up.
[Whereupon, at 5:13 p.m., the Subcommittee proceeded to
other business.]
A P P E N D I X
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Material Submitted for the Hearing Record
Prepared Statement of The Citizens Flag Alliance
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