[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


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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

                              ----------                              

                              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

                              ----------                              


                         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

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