    [Senate Hearing 108-812]
    [From the U.S. Government Publishing Office]

                                                            S. Hrg. 108-812

      LETTING THE PEOPLE DECIDE: THE CONSTITUTIONAL AMENDMENT AUTHORIZING
    CONGRESS TO PROHIBIT THE PHYSICAL DESECRATION OF THE FLAG OF THE UNITED
                                     STATES

    =======================================================================

                                    HEARING

                                   before the

                           COMMITTEE ON THE JUDICIARY
                              UNITED STATES SENATE

                          ONE HUNDRED EIGHTH CONGRESS

                                 SECOND SESSION

                                   __________

                                 MARCH 10, 2004

                                   __________

                              Serial No. J-108-60

                                   __________

             Printed for the use of the Committee on the Judiciary

                        U.S. GOVERNMENT PRINTING OFFICE
    20-540                      WASHINGTON : 2005
    _____________________________________________________________________________
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                           COMMITTEE ON THE JUDICIARY

                         ORRIN G. HATCH, Utah, Chairman
    CHARLES E. GRASSLEY, Iowa            PATRICK J. LEAHY, Vermont
    ARLEN SPECTER, Pennsylvania          EDWARD M. KENNEDY, Massachusetts
    JON KYL, Arizona                     JOSEPH R. BIDEN, Jr., Delaware
    MIKE DeWINE, Ohio                    HERBERT KOHL, Wisconsin
    JEFF SESSIONS, Alabama               DIANNE FEINSTEIN, California
    LINDSEY O. GRAHAM, South Carolina    RUSSELL D. FEINGOLD, Wisconsin
    LARRY E. CRAIG, Idaho                CHARLES E. SCHUMER, New York
    SAXBY CHAMBLISS, Georgia             RICHARD J. DURBIN, Illinois
    JOHN CORNYN, Texas                   JOHN EDWARDS, North Carolina
                 Bruce Artim, Chief Counsel and Staff Director
          Bruce A. Cohen, Democratic Chief Counsel and Staff Director

                                C O N T E N T S

                                  ----------

                        STATEMENTS OF COMMITTEE MEMBERS

                                                                       Page

    Craig, Hon. Larry E., a U.S. Senator from the State of Idaho.....     8
        prepared statement...........................................   124
    Cornyn, Hon. John, a U.S. Senator from the State of Texas,
      prepared statement.............................................   122
    Durbin, Hon. Richard J., a U.S. Senator from the State of
      Illinois.......................................................    11
    Feingold, Hon. Russell D., a U.S. Senator from the State of
      Wisconsin......................................................     9
        prepared statement...........................................   138
    Feinstein, Hon. Dianne, a U.S. Senator from the State of
      California.....................................................    13
    Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah......     1
        prepared statement...........................................   153
    Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont.     4
        prepared statement...........................................   173
    Kohl, Hon. Kohl, a U.S. Senator from the State of Wisconsin,
      prepared statement.............................................   160

                                   WITNESSES

    Andretti, John, NASCAR Nextel Cup Series Driver, Mooresville,
      North Carolina.................................................    24
    Brady, Patrick H., Chairman of the Board, Citizens Flag Alliance,
      and Recipient, Congressional Medal of Honor, Sumner, Washington    28
    Bryant, Daniel J., Assistant Attorney General, Office of Legal
      Policy, Department of Justice, Washington, D.C.................    16
    Korb, Lawrence J., Senior Fellow, Center for American Progress,
      Alexandria, Virginia...........................................    31
    May, Gary E., Associate Professor of Social Work, University of
      Southern Indiana, Evansville, Indiana..........................    33
    Parker, Richard D., Williams Professor of Law, Harvard Law
      School, Cambridge, Massachusetts...............................    35

                             QUESTIONS AND ANSWERS

    Responses of John Andretti to questions submitted by Senator
      Leahy..........................................................    46
    Responses of Patrick Brady to questions submitted by Senator
      Leahy..........................................................    49
    Responses of Daniel J. Bryant to questions submitted by Senator
      Leahy..........................................................    50
    Responses of Lawrence Korb to questions submitted by Senator
      Leahy..........................................................    57
    Responses of Gary May to questions submitted by Senator Leahy....    59
    Responses of Richard Parker to questions submitted by Senator
      Leahy..........................................................    61

                           SUBMISSIONS FOR THE RECORD

    American Bar Association, Dennis W. Archer, President,
      Washington, D.C., prepared statement...........................    63
    American Civil Liberties Union, Laura W. Murphy, Director and
      Terri A. Schroeder, Legislative Analyst, Washington, D.C.,
      statement......................................................    70
    American Legion:
        Brieden, John, National Commander, American Legion, Katherine
          Morris, National President, American Legion Auxiliary, and
          Neal C. Warnken, National Commander, Sons of the American
          Legion, letter.............................................    72
        Severa, John N., Legislative Chairman, Tenth District, Forest
          Hills, New York, letter....................................    73
        Sundeen, Neal S., Department of Arizona, Phoenix, Arizona,
          letter.....................................................    74
        Vaclav, Dan, Eighteen District, Bloomington, Illinois, letter    75
    American Merchant Marine Veterans, Henry Cap, National President,
      Cape Coral, Florida, letter....................................    76
    AMVETS, S. John Sisler, National Commander, Lanham, Maryland,
      letter.........................................................    77
    Andretti, John, NASCAR Nextel Cup Series Driver, Mooresville,
      North Carolina, prepared statement.............................    78
    Brady, Patrick H., Major General (Ret.), Chairman of the Board,
      Citizens Flag Alliance, and Recipient, Congressional Medal of
      Honor, Sumner, Washington, prepared statement..................    85
    Brown, Morgan D., MSGT (Ret.), Manager, Legislative Affairs, Air
      Force Sergenats Association, Suitland, Maryland, statement.....   105
    Bryant, Daniel J., Assistant Attorney General, Office of Legal
      Policy, Department of Justice, Washington, D.C., prepared
      statement......................................................   108
    Burns, Thomas L., National Executive Committeeman, Department of
      Delaware, American Legion, statement...........................   114
    Citizens Flag Alliance of Virginia, Kenneth Knight, Chairman,
      statement......................................................   117
    Comer, John P. (Jake), Past National Commander, American Legion,
      statement......................................................   118
    Czech Catholic Union, Mary Ann Mahoney, President, Cleveland,
      Ohio, letter...................................................   128
    Dellinger, Walter, Douglas B. Maggs Professor of Law, Duke
      University, Partner, O'Melveny & Myers, LLP, statement.........   129
    Elks Lodge No. 1679, Steve Gunter, Exalted Ruler, Sanford, North
      Carolina, letter...............................................   137
    Flanagan, William J., National Executive Committeeman, Department
      Commander, American Legion, State of Illinois, statement.......   140
    Fleet Reserve Association, Joseph L. Barnes, National Executive
      Secretary, Alexandria, Virginia, letter........................   143
    Fox Associates, Inc., Marlys Fox, President, Chicago, Illinois,
      letter.........................................................   144
    Gard, Robert G., Jr., Lt. General, (Ret.), letter................   145
    Glenn, Hon. John, former Senator, John Glenn Institute for Public
      Service and Public Policy, Ohio State University, Columbus,
      Ohio, prepared statement.......................................   148
    Gold Star Wives of America, Inc., Rose Lee, Past National
      President and Past Chairman of the Board, Arlington, Virginia,
      letter.........................................................   152
    Hungarian Reformed Federation of America, Rev. Stefan M. Torok,
      President and CEO, Washington, D.C., letter....................   156
    Kerrey, Hon. Bob, former United States Senator, President, New
      School University, prepared statement..........................   157
    Korb, Lawrence J., Senior Fellow, Center for American Progress,
      Alexandria, Virginia...........................................   162
    Korth, David A., National Executive Committeeman, Department of
      Wisconsin, American Legion, statement..........................   165
    Kreul, Keith A., former National Commander, American Legion,
      Fennimore, Wisconsin, prepared statement.......................   168
    La Boutique Nationale, Marge Sheridan, Le Chapeau National,
      letter.........................................................   172
    May, Gary E., Associate Professor of Social Work, University of
      Southern Indiana, Evansville, Indiana, prepared statement and
      attachment.....................................................   178
    Mellor, William H., President and General Counsel, Institute for
      Justice, Washington, D.C., letter..............................   189
    National Alliance of Families, Dolores Apodaca Alfond, National
      Chairperson, POWs-MIAs, Washington, D.C., letter...............   190
    National Association for Uniformed Services, Richard D. Murray,
      Major General, US Air Force, Retired, President, Springfield,
      Virginia, letter...............................................   191
    National Grange of the Order of Patrons of Husbandry, Leroy
      Watson, Legislative Director, Washington, D.C., letter.........   192
    National Society of the Sons of the American Revolution, Raymond
      G. Musgrave J.D., President General 2003-2004, Louisville,
      Kentucky, letter...............................................   193
    Neville, Robert F., National Executive Committeeman, Department
      of New York, American Legion, statement........................   194
    New York Air National Guard, 105th Air Lift Wing, SSgt. John
      Gassler, letter................................................   197
    Orchard Lake Schools, Rev. Msgr. Stanley E. Milewski, Chancellor
      Emeritus, Orchard Lake, Michigan, letter.......................   199
    Parker, Richard D., Williams Professor of Law, Harvard Law
      School, Cambridge, Massachusetts, prepared statement...........   200
    People for the American Way, Ralph G. Neas, President and Marge
      Bake, Director, Public Policy, Washington, D.C., letter........   211
    Polish American Congress, Edward J. Moskal, President,
      Washington, D.C., letter.......................................   214
    Polish Roman Catholic Union of America, Wallace M. Ozog, National
      President, Chicago, Illinois, letter...........................   215
    Powell, Colin L., General, USA, Retired, Alexandria, Virginia,
      letter.........................................................   216
    Seniors Coalition, Chris Williams, Director of Public Affairs,
      Springfield, Virginia, letter..................................   217
    Smith, Ray G., Past National Commander, American Legion, North
      Carolina, statement............................................   218
    Tetreault, Donald T., National Executive Committeeman, State of
      Vermont, American Legion, statement............................   221
    Voiture Nationale, David R. Rabius, Correspondant National,
      Indianapolis, Indiana, letter..................................   223
    Washington Post, Edward Walsh, March 3, 2004, article............   224
    Washington Times, Denise Barnes and Judith Person, October 26,
      2003, article..................................................   227

      LETTING THE PEOPLE DECIDE: THE CONSTITUTIONAL AMENDMENT AUTHORIZING
    CONGRESS TO PROHIBIT THE PHYSICAL DESECRATION OF THE FLAG OF THE UNITED
                                     STATES

                                  ----------

                           WEDNESDAY, MARCH 10, 2004

                                  United States Senate,
                                    Committee on the Judiciary,
                                                        Washington, DC.
        The Committee met, pursuant to notice, at 10:13 a.m., in
    room SD-226, Dirksen Senate Office Building, Hon. Orrin G.
    Hatch, Chairman of the Committee, presiding.
        Present: Senators Hatch, Craig, Leahy, Feinstein, Feingold
    and Durbin.

     OPENING STATEMENT OF HON. ORRIN G. HATCH, A U.S. SENATOR FROM
                           THE STATE OF UTAH

        Chairman Hatch. If we can have your attention, we will
    begin this hearing. Before we get started, I just want to take
    a moment to acknowledge a number of very special members in the
    audience.
        We are honored to have the Utah delegation here, led by
    National Executive Committeeman Bill Cristoferson, who is also
    a very dear friend. So we are happy to have all of you here.
        I would also like to mention another Utahan who traveled
    here for today's hearing, Mr. Paul Swenson. Paul is President
    and CEO of Colonial Flag and was generous enough to lend us a
    couple of huge flags that we had planned to hang in the hearing
    room. Unfortunately, we were not able to make arrangements to
    do that, but we appreciate Mr. Swenson's generosity and
    interest very much, and we are going to use those flags.
        Rose Lee is the Board Chair of the Gold Star Wives.
        Rose, can you stand? We are so happy to have you here.
    Welcome.
        [Applause.]
        Chairman Hatch. We would also like to welcome all the
    members of the American Legion and the Citizens Flag Alliance.
    Your support is the reason why we are here today and the reason
    that this very important measure is seriously being considered
    by the Congress, and I want to thank you all for your good
    work. So please keep it up.
        Last, but certainly not least, we would like to welcome two
    distinguished members of the Knights of Columbus--Bill
    Mulvehill, Vice Supreme Master for Calvert Province, and Peter
    Jurvai, State Secretary for the District of Columbia State
    Council. We are so honored to have you here as well.
        [Applause.]
        Chairman Hatch. We are honored to have all the other guests
    who are here and those who are here to testify, and we will
    talk about that in a minute.
        I want to welcome everyone here today to this important
    hearing on S.J. Res. 4, the bipartisan proposed constitutional
    amendment to protect the American flag from acts of physical
    desecration. I have enjoyed working with all my Senate
    colleagues on this issue, and I look forward to hearing from
    today's witnesses.
        In the past, this Committee has been fortunate to hear from
    a variety of witnesses who range from war veterans, Senators
    who were also war veterans, law professors, teachers and others
    from a variety of backgrounds. I can assure everyone that
    today's panel of witnesses will once again provide us with
    wisdom and insight that we in the Senate need when considering
    this very important topic and issue.
        The American flag serves as the symbol of our great Nation.
    The flag represents, like nothing else can, the common bond
    shared by otherwise diverse people. As a sponsor and long-time
    supporter of this proposed constitutional amendment, I am
    pleased, but not surprised by the way Americans have been
    displaying the flag as a symbol of solidarity following the
    attacks of September 11th. In fact, many stores that sell
    American flags reported that following September 11th, they
    quickly sold out of flags and could not obtain replacements
    fast enough to replenish their stock.
        From the dawn of our country's creation and continuing
    through this very moment, American soldiers have put their
    lives on the line to defend the flag and what it represents. My
    brother was one of them who was killed in the Second World War.
    I believe that we honor the sacrifices made by those who
    defended this country by protecting the flag in the manner it
    once enjoyed.
        From the lyrics penned by Francis Scott Key which are sung
    in our National Anthem to the unfurling of the flag at the
    Pentagon following September 11th--that flag now hangs in the
    Smithsonian--our people have turned to the American flag as a
    symbol of national unity and pride during times of crisis, and
    especially these crises.
        Whatever our differences of party, race, religion or
    socioeconomic status, the flag reminds us that we are very much
    one people, united in a shared destiny, bonded in a common
    faith in our Nation. Because our flag transcends our fellow
    citizens' differences and our diversity as a Nation, it
    symbolized the love of liberty and the love of country felt by
    us as an American people.
        This symbolism stands in sharp contrast to the flags of
    those oppressive and totalitarian regimes such as Cuba, Nazi
    Germany, or even the former Soviet Union, which uniformly
    represented intolerance of free thought, oppression and coerced
    loyalty.
        In 1861, President Abraham Lincoln called our young men to
    put their lives on the line to preserve the Union. When Union
    troops were beaten and demoralized, General Ulysses S. Grant
    ordered a detachment of men to make an early-morning attack on
    Lookout Mountain, in Tennessee. When the fog lifted from
    Lookout Mountain, the rest of the Union troops saw the American
    flag flying and cheered with a new-found courage. This courage
    eventually led to a Nation of free men, not half slave and half
    free.
        In 1941, President Franklin Roosevelt called on all
    Americans to fight the aggression of the Axis powers. After
    suffering numerous early defeats, the free world watched in awe
    as five Marines and one sailor raised the American flag on Iwo
    Jima after nearly 6,000 American soldiers gave all that they
    had, their lives, to achieve this victory. Their undaunted,
    courageous act, for which three of the six men died, inspired
    the Allied troops to obtain victory over fascism.
        In 1990, President Bush called on our young men and women
    to go to the Mideast for Operation Desert Shield and Desert
    Storm. After an unprovoked attack by the terrorist dictator
    Saddam Hussein on the Kingdom of Kuwait, American troops
    wearing arm patches with the American flag on their shoulders
    led the way to victory. General Norman Schwarzkopf thanked the
    American people for their support and he stated this, quote,
    ``The prophets of doom, the naysayers, the protesters and the
    flag-burners all said that you wouldn't stick by us, but we
    knew better. We knew you would never let us down. By golly, you
    didn't,'' unquote.
        In 2001, the American flag was again called upon to inspire
    our men and women during time of war. For example, I am touched
    by the New York National Guard's dedication of an American flag
    to the memory of Staff Sergeant Jerome Dominguez. Sergeant
    Dominguez, also a full-time New York City police officer, lost
    his life serving his fellow citizens in the World Trade Center
    attacks.
        The American flag dedicated to Sergeant Dominguez traveled
    to Bahrain with a team of his fellow 105th Security Forces when
    they participated in the overthrow of the Taliban during
    Operation Enduring Freedom. Later, this very flag was tasked
    with the solemn duty of overlooking several fallen military
    members during their final flight home after giving the
    ultimate sacrifice for their country during Operation Iraqi
    Freedom.
        I will place into the record an article written by Staff
    Sergeant John Grassler documenting this wonderful
    commemoration.
        We need to pass this flag amendment because in 1989, the
    Supreme Court abandoned 150 years of history and the intent of
    the First Amendment to embrace a philosophy that made no
    distinction between oral and written speech about the flag and
    extremist, disrespectful destruction of the flag.
        This striking contradiction was amply described by Chief
    Justice Rehnquist, who wrote, quote, ``The government may
    conscript men into the Armed Forces where they must fight and
    perhaps die for the flag, but the government may not prohibit
    the public burning of the banner under which they fight,''
    unquote.
        When Congress responded with a Federal flag protection
    statute, the Supreme Court used its new and changed
    interpretation of the First Amendment to strike it down by
    another five-to-four vote. It is now clear that a
    constitutional amendment is the only legal means to protect the
    flag. And anybody who continues to say we ought to pass
    legislation is just using that as an excuse to not face up to
    this problem. Thankfully, the Constitution provides a method
    for peaceful and law-abiding citizens to amend the
    Constitution, and it is time to let our fellow citizens speak
    on this issue.
        Polls have shown that 80 percent of the American people
    want the opportunity to vote to protect the American flag. All
    50 State legislatures have passed resolutions asking Congress
    to pass the amendment and send it to the States for
    consideration and ratification. Numerous organizations from the
    American Legion to the Women's War Veterans to the African-
    American Women's Clergy all support the flag protection
    amendment. We should not deprive the American public the right
    to express their view on this subject any longer.
        If the Senate passes the flag amendment this year, the
    nationwide debate over State ratification will be one of the
    greatest public discussions in American history. It will
    encourage a deeper study of our Nation's history and our
    Nation's values. It will inspire our young people to understand
    and appreciate the heroic selflessness displayed during this
    and previous generations, and it will cause many Americans to
    renew their faith in and commitment to the ideals and values of
    America that are greater than anyone's personal self-interest.
        I am grateful to those of you who are here to testify today
    on either side of this issue. This is a free country and we
    should be able to express ourselves freely. But we ought to
    protect the flag, and we ought to protect it from acts of
    physical desecration even though some would argue that
    urinating or defecating on the flag is some form of speech. I
    don't think that is so. I think it is offensive conduct that we
    ought to stand up against and do something about, and this is
    the opportunity for all of America to participate in a
    constitutional process that really makes sense.
        [The prepared statement of Senator Hatch appears as a
    submission for the record.]
        So with that, we will turn the time over to Senator Leahy,
    and then we will go to our witnesses.

      STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR FROM THE
                            STATE OF VERMONT

        Senator Leahy. Thank you very much, Mr. Chairman. Our
    Committee is holding the latest in what has become a series of
    hearings on amending the Constitution. Of course, our Committee
    is the one that has the appropriate duty to do that.
        This is the third constitutional amendment to which this
    Committee has devoted significant time for debate in the 108th
    Congress. It is actually one of 61 amendments introduced so far
    this session. I believe we have a chart here showing that.
    These are the 61 amendments to the Constitution that were
    introduced in this Congress alone. I think a number of members
    of this Committee are cosponsors of some of these.
        Now, that is 61 in one Congress. There have been probably a
    couple thousand amendments to the Constitution introduced since
    I was elected to the Senate. There have actually been 11,000
    amendments to the Constitution proposed since the 1st Congress.
    Had these all been adopted, the Constitution of the United
    States, instead of being something that you could put in your
    shirt pocket, would fill up the whole front of this Committee
    room just to print them all. And Americans probably would not
    have any real idea of what our rights are under the
    Constitution.
        This is the second hearing in just a week's time in which
    we are debating a constitutional amendment during this election
    year that would, in this case, amend the Bill of Rights for the
    first time in our Nation's history.
        Now, I know the flag amendment is an issue of particular
    importance to veterans, whether it is my young Marine son or
    any other veteran here. I know that opinions are on both sides
    of this issue. I have gotten voluminous letters and e-mails
    from veterans in favor of this amendment and voluminous letters
    and e-mails from veterans opposed to this amendment.
        The one thing that we should all agree on is that this
    Nation has to be thankful for the service of these veterans to
    our Nation. No matter how we feel about this constitutional
    amendment, that is an area where we all agree.
        I also heard from a number of veterans who asked me if this
    amendment coming up at this time, especially just before we
    have our budget votes, may be a distraction on behalf of the
    administration so we might not look at what it is doing
    directly for or to veterans. Some of these veterans have
    written to me and asked me if maybe the administration believes
    that veterans might be distracted from the fact that the
    administration is failing to meet their long-term health and
    related needs.
        The reason I ask this is that I also serve on the
    Appropriations Committee, and I look at the budget from the
    Veterans Administration, and it tells me a lot about the
    Administration's priorities. Here is the President's budget for
    veterans. It doesn't maintain current services. It falls $1.2
    billion below what the VA says it needs. It is $2.9 billion
    below what veterans have put together on the independent
    budget. Out-of-pocket expenses for veterans have skyrocketed
    478 percent under this administration.
        Even though Congress added $2.1 billion over the last 3
    years over what the President requested, we still have a
    shortfall. In fact, it is interesting that when we have added
    the money to make up for the shortfalls in veterans benefits,
    this same administration has been very, very critical of the
    Congress for putting money in the veterans budget.
        I mention this because the letters I receive tell me about
    the longer waits at the VA hospitals, the extra costs, the out-
    of-pocket expenses, and so on. And I wonder if at the same time
    we are debating the budget for the veterans--many of whom are
    in town today--this hearing is designed to distract us from the
    fact that our veterans' health care is being cut yet again.
        Now, I respect the views of veterans on both sides of this
    issue, of course. But I want to note some of the veterans who
    have opposed it. Senator John Glenn, who is a combat veteran,
    wrote, ``The flag is the Nation's most powerful and emotional
    symbol. It is our most sacred symbol. It is our most revered
    symbol. But it is a symbol. It symbolizes the freedoms that we
    have in this country, but it is not the freedoms themselves.''
    Senator Glenn, who served with distinction in World War II and
    in the Korean War and, of course, as an astronaut and a member
    of this Senate, feels this way. Senator Bob Kerrey, who is only
    one of two Senators I have served with who were recipients of
    the Congressional Medal of Honor, also opposes the amendment.
        They were invited to testify today, but they were given
    very short notice and were unable to change their schedules to
    do this. And the Committee was unable to rearrange its schedule
    to allow them, so I would ask that their statements be made
    part of the record.
        Chairman Hatch. Without objection.
        Senator Leahy. Another veteran wrote to me, retired Four-
    Star General Colin Powell, now the Secretary of State in the
    Bush administration. He wrote in opposition to the proposed
    amendment. He said, ``We are rightly outraged when anyone
    attacks or desecrates our flag. Few Americans do such things
    and when they do they are subject to the rightful condemnation
    of their fellow citizens. They may be destroying a piece of
    cloth, but they do no damage to our system of freedom which
    tolerates such desecration.'' Referring to the Constitution,
    General Powell continued, ``I would not amend that great shield
    of democracy to hammer a few miscreants. The flag will still be
    flying proudly long after they have slunk away.''
        I would ask, Mr. Chairman, that Secretary Powell's letter
    be part of the record.
        Chairman Hatch. Without objection.
        Senator Leahy. I know how offended any one of us gets when
    we see desecration of the flag. I remember during the Super
    Bowl halftime show the thing that offended me the most was when
    Kid Rock wore a flag as a pancho and then just tossed it away
    on the ground afterwards. In fact, my wife had to get me to
    stop shouting at the television when I watched that. There was
    a lot of publicity about something else at that halftime show.
    Frankly, I missed that and never saw that, but, boy, I saw that
    flag being flown out there and worn as a pancho.
        I am certainly as patriotic a person as anybody, as is the
    President, but I know that he signed a flag at a campaign rally
    last summer. Under this amendment, that would be also
    inappropriate. But these acts are protected by the
    Constitution.
        All of us agree that flag desecration is a despicable and
    reprehensible act, but the true question before us is not
    whether we agree with that. All of us agree it is contemptible.
    The issue before us is whether we should amend the Constitution
    of the United States, with all the risks that entails, and
    whether for the first time in our history we should narrow the
    freedoms ensured by the First Amendment.
        As Supreme Court Justice Brennan wrote, ``We can imagine no
    more appropriate response to burning a flag than waving one's
    own.'' That is exactly how the American people respond, a point
    demonstrated by the innate patriotism of Americans in response
    to events of the past years, as Chairman Hatch pointed out so
    eloquently a few minutes ago, with the sale of flags after 9/
    11.
        But the Chairman did say this constitutional amendment is
    the only way to protect our flag. I disagree. At my home in
    Vermont, I live on a dirt road, a very rural, very picturesque
    area. All the neighbors know when the Leahys are home because
    the flag is flying, as it has for the 30 years I have been a
    Senator. That flag is protected by Vermont law, a State
    constitutional law.
        If somebody came on my property and took that flag and
    desecrated it, and assuming there was much left of them after I
    finished with them, they could be prosecuted under Vermont law.
    If they did the same thing in Utah, they could be prosecuted
    under Utah law.
        The flags in this room are all protected. If anybody
    desecrated one of these flags, the police officers here would
    arrest them. They could be prosecuted for defacing Federal
    property. There are laws that protect any flag that is flown at
    your home. If somebody came and desecrated your flag, they
    could be prosecuted for both trespass and destruction of your
    property.
        What I am suggesting is that the thing we must protect the
    most is our sacred Constitution. When I go to countries where
    there are dictators they have to have all kinds of laws to
    protect themselves. You cannot criticize their president or
    their prime minister, or whomever. You can't criticize the
    symbols of their state or you will go to jail. They enact these
    laws to keep their people in line.
        I love bragging about the fact that Americans can criticize
    anybody. I talk about people who have rallies to criticize me
    or anybody else, and that we Americans protect our flag. We
    protect it without laws to require doing so. We do it because
    we love the symbols of our country, and it makes me feel good
    to tell some of these dictators we don't need to do what they
    do; we don't need those kinds of protections.
        Immediately after September 11th, the surge in patriotism
    made American flags such a hot commodity that several major
    flag manufacturers could not keep flags stocked on store
    shelves. We don't need to teach Americans how to respect the
    flag. The American people have shown they respect the flag.
        In the neighborhood I live in when I am here in Washington
    during session, there are a number of homes owned by foreign
    embassies. The day after September 11th, Mr. Chairman, I walked
    down those streets and all those homes were flying both their
    national flag and the U.S. flag. I went by and left a hand-
    written note in every single one of their mailboxes thanking
    them for that.
        Freedom of speech and the press is one of the magnificent
    bequests of earlier Americans to all the generations that
    follow. These rights are fragile and they need nurturing and
    protection by every new generation. The erosion of freedom can
    easily come when lawmakers succumb to the temptation to pander
    to shifting public passions, at the expense of the public's
    everlasting interest in preserving freedom. In any session of
    Congress, you do not have to look far to see this dynamic at
    work.
        It may not be politically popular to defend against erosive
    efforts like this, but generations of Americans to come will
    thank us if we leave for them the same First Amendment that we
    ourselves inherited and so dearly treasure, the same First
    Amendment that generations before us tried to change and did
    not.
        Mr. Chairman, I think you do us all a service in having
    this hearing. And while we may disagree on the basic thing, you
    know of my deep respect and affection for you.
        [The prepared statement Senator Leahy appears as a
    submission for the record.]
        Chairman Hatch. Well, thank you, Senator.
        We will turn to Senator Craig and the rest of the Committee
    for short statements, and we will go back and forth.
        Senator Craig.

    STATEMENT OF HON. LARRY CRAIG, A U.S. SENATOR FROM THE STATE OF
                                 IDAHO

        Senator Craig. Well, thank you very much, Mr. Chairman.
        For those of you in the audience today who wonder why I am
    so far away from the dias, I am a junior on this Committee, so
    it is something to do with seniority. But I must say after
    Senator Leahy's comments, I am glad there is a little distance
    between us today because I do disagree with him on a variety of
    things. Of course, that is the beauty of the diversity that is
    demonstrated in this wonderful country of ours as we express
    our opinions on this issue.
        The thing that frustrates me most, after the House has
    consistently spoken out in a resolution for a flag amendment,
    is that the Senate by its action is denying the people the
    opportunity to speak. There is a fundamental difference here.
    It is not our Constitution, not that of the United States
    Senate. The Constitution is a phenomenally valuable
    foundational law of this country designed by the people.
        To deny all 50 States an opportunity to express that
    opinion, and a vast majority of the American people, I think is
    the wrong denial. I do believe it is time that we bring forth a
    constitutional amendment and send it to the States to allow the
    American people to express their opinion.
        I do agree with the Chairman that that becomes a
    phenomenally healthy debate for all Americans, because I am one
    who believes that we must consistently remind our citizens of
    their rights and of their Constitution. I don't think it is
    something that just because you are born here, that action in
    itself imbues totally with a knowledge and understanding of
    those fundamentals. Healthy national debates reinstate that.
        When we were celebrating the bicentennial of the
    Constitution, more young people learned once again about the
    value of that wonderful document than they had learned ever
    before. Why? Because it is not faddish anymore to teach it in
    our schools. Somehow, our schools get caught up in contemporary
    issues and fail in many instances to teach some of the
    foundational principles that this country was built upon.
        So for a variety of reasons, including the most obvious, I
    think it is time that we send forth this amendment, not because
    the Senate has decided it should or should not happen, although
    that is one of our responsibilities and the method by which
    this Constitution is amended, but because the States have so
    loudly spoken and because I believe it our responsibility to
    allow the American people to be granted that opportunity to
    speak.
        With that, Mr. Chairman, I have always felt that while the
    Supreme Court has a valuable role to play in this country, they
    are not given the right, if you will, to write the laws. That
    is our job and that is the job of the American people. That is
    why I strongly support this amendment.
        Chairman Hatch. Well, thank you, Senator.
        Senator Craig. Let me ask unanimous consent that my full
    statement be a part of the record.
        Chairman Hatch. Without objection.
        Senator Craig. And as somebody who is an active member of
    the Veterans Committee, we are going to plus-up veterans
    budgets again this year, as we did last year and the year
    before, and as we consistently did also during the Clinton
    years.
        It is important, I think, for everybody to understand that
    while there was an element of partisan expression here this
    morning, the reality is that we will do exactly what we have
    historically done as a Senate both during the Clinton years and
    now the Bush years, and that is to plus-up veterans budgets.
        I was at the Veterans Administration facility in my
    hometown now of Boise this past weekend, where there once were
    lines. By June, there will be no lines anymore. Why? Because we
    set that administrative process together to aggressively pursue
    and bring on people to resolve that problem, and we are doing
    it.
        I would encourage all Senators to encourage their veterans
    facilities to do the same, because they have been granted the
    money to get it done and now it is an administrative problem,
    in my opinion, much more than it is a dollars-and-cents
    problem. We have been able to prove that in Idaho. There will
    be no waiting lists as of June of this year in Idaho and I am
    proud of that fact.
        Thank you, Mr. Chairman.
        [The prepared statement Senator Craig appears as a
    submission for the record.]
        Chairman Hatch. Thank you, Senator Craig.
        Senator Feingold.

    STATEMENT OF HON. RUSSELL D. FEINGOLD, A U.S. SENATOR FROM THE
                           STATE OF WISCONSIN

        Senator Feingold. Thank you, Mr. Chairman, and I would like
    to welcome our witnesses today. As the Ranking Member pointed
    out, this is our second hearing in two weeks on a
    constitutional amendment. The amendment we discussed last week
    would for the first time write discrimination into our
    Constitution. This week, we are discussing an amendment that
    would for the first time amend the Bill of Rights.
        Make no mistake, we are talking here today about amending
    the Constitution of the United States to permit the Government
    to criminalize conduct that, however misguided, is clearly
    expressive and is often undertaken as a form of political
    protest. Adopting this amendment would be a grave mistake.
        It seems almost silly to say this, but given some of the
    written testimony of some of the witnesses today, I must say it
    anyway. Not a single Senator who opposes the proposed
    constitutional amendment, as I do, supports burning or
    otherwise showing disrespect to the flag, not a single one.
    None of us thinks it is okay to burn the flag. None of us views
    the flag as just a piece of cloth.
        On those rare occasions when some malcontent defiles or
    burns our flag, I join every single person on this dais,
    whether they are way down there or right up here near the
    Chairman, and in this room and in this country, who condemns
    that action. At the same time, whatever the political cost, I
    will defend the right of Americans to express their views about
    their Government, however hateful or spiteful or disrespectful,
    without fear of their Government putting them in jail for those
    views.
        Mr. Chairman, America is not a nation of symbols. It is a
    nation of principles, and the most important principle of all,
    the principle that made this country the beacon of hope and
    inspiration for oppressed peoples throughout the world, is the
    right of free expression. This amendment, well-intentioned as
    it may be, threatens that right and therefore I must oppose it.
        I respectfully disagree with the supporters of the
    amendment about the effect that this issue has on our children.
    We can send no better, no stronger, no more meaningful message
    to our children about the principles and values of this country
    than if we explain to them, as it was explained to me, that the
    beauty and the strength of this country is in its freedoms, not
    in its symbols.
        When we uphold First Amendment freedoms, despite the
    efforts of misguided and despicable people who want to provoke
    our wrath, we really explain what America is really about. Our
    country and our people are far too strong to be threatened by
    those who would burn a flag. That is a lesson worth teaching
    our children.
        Amending the First Amendment so we can bring the full wrath
    of the criminal law and the power of the state down on
    political dissenters will only encourage more people who want
    to grandstand their dissent and imagine themselves to be, in
    effect, martyrs for the cause.
        We all know what will happen the minute this amendment goes
    into force--more flag-burnings and other despicable acts of
    disrespect to the flag, not fewer. Will the new law deter these
    acts? Of course not. Will the amendment make these acts any
    more despicable than they are today? Certainly not. Will it
    make us love the flag any more than we do today? Absolutely
    not.
        It was just under 4 years ago, in 2000, another
    presidential election year, that the Senate rejected this
    constitutional amendment. I would be interested to hear from
    our witnesses what has changed in the last 4 years. Have we
    seen an alarming increase in the incidence of flag-burning? Has
    there been a marked decrease in patriotism or in the proud
    display of the flag on national holidays? Have the armed forces
    seen a huge drop in enlistment, or have soldiers faced
    disrespectful protests of the sacrifices that they and their
    families make? Of course not.
        I would venture to say, Mr. Chairman, that outward displays
    of patriotism are on the rise since we last considered this
    amendment. We all know why that is. Our country was viciously
    attacked on September 11th and America responded. We didn't
    need a constitutional amendment to teach our citizens how to
    love their country. They showed us how to do it by hurling
    themselves into burning buildings to save their fellow citizens
    who were in danger, by standing in line for hours to give
    blood, by driving hundreds of miles to search through the
    rubble for survivors and help in clean-up efforts, by praying
    in their houses of worship for the victims of the attacks and
    their families. September 11th inspired our citizens to perform
    some of the most selfless acts of bravery and patriotism we
    have ever seen in our entire history. I believe that no
    constitutional amendment could ever match those acts as a
    demonstration of patriotism, or create them in the future.
        Mr. Chairman, in 1999 our late colleague Senator John
    Chafee, one of this country's greatest war heroes at
    Guadalcanal and in the Korean War, testified against this
    amendment. He said, ``We cannot mandate respect and pride in
    the flag. In fact...taking steps to require citizens to respect
    the flag sullies its significance and symbolism.'' Senator
    Chafee's words still bring us a brisk, cool wind of caution.
    What kind of symbol of freedom and liberty will our flag be if
    it has to be protected from protesters by a constitutional
    amendment?
        Mr. Chairman, I do thank you for this hearing, but I will
    proudly defend the Constitution against this ill-advised effort
    to amend it. Thank you, Mr. Chairman.
        [The prepared statement Senator Feingold appears as a
    submission for the record.]
        Chairman Hatch. Thank you.
        Senator Durbin is next.

     STATEMENT OF HON. RICHARD J. DURBIN, A U.S. SENATOR FROM THE
                           STATE OF ILLINOIS

        Senator Durbin. Thank you very much, Mr. Chairman. I want
    to thank the veterans and representatives of veterans
    organizations, including the American Legion, who have joined
    us today. We thank you for your service to our Nation and your
    continuing effort to stand up for the values that you fought
    for and to stand up for veterans.
        The issue of a constitutional amendment to prohibit flag
    desecration isn't easy. Even many veterans disagree. We will
    have testimony from one today who represents an organization of
    veterans who oppose this amendment.
        Secretary of State Colin Powell, whom I respect very much,
    wrote a letter to this Committee in 1999 as a retired General
    and here is what he told us in relation to this amendment and
    the outrage we feel about those who desecrate the flag.
        Former General and Secretary of State Colin Powell wrote
    and said, ``I feel the same sense of outrage, but I step back
    from amending the Constitution to relieve that outrage. The
    First Amendment exists to ensure that freedom of speech and
    expression applies not just to that with which we agree or
    disagree, but also to that which we find outrageous. I would
    not amend that great shield of democracy to hammer a few
    miscreants. The flag will be flying proudly long after they
    have slunk away.''
        I believe Congress can honor veterans and the values they
    stand for in many ways. Last night, the United States Senate
    voted on an amendment to add $2.7 billion to this year's budget
    for veterans medical care. It would have provided this funding
    by reducing the tax cuts for millionaires from $140,000 a year
    to $112,000 a year, and the money would have gone to veterans
    health care. The amendment failed.
        Many of the same Senators who proudly tell you that they
    are standing with veterans didn't stand with them on that roll
    call. Giving a veteran a flag is no substitute for giving our
    vets the quality health care they were promised. That promise
    was not kept last night on the Senate floor.
        Today's hearing is the sixth that we have had in the
    Judiciary Committee at the full Committee or Subcommittee level
    on possible constitutional amendments during this Congress.
    This week's amendment relates to flag desecration, but many
    others have been considered.
        This amendment is a strong argument for my proposal that
    Congress ban constitutional amendments during a presidential
    election year. The last time we voted on this issue was March
    2000. The time before that would have just barely missed my
    deadline, December of 1995. I don't want to impugn anyone's
    political motives, but isn't it odd that we start thinking very
    seriously about debating constitutional amendments the closer
    we get to an election? It raises questions in my mind.
        Our First Amendment rights are envied around the world. In
    fact, earlier this week we saw something really historic. The
    Iraqi people, struggling toward self-government, established
    their own constitution and protected within their constitution,
    this document of this new nation, the freedom of thought,
    conscience and expression. They learned from us, and thank God.
        I believe flag desecration, although shameful and
    disgusting, is a form of political expression. By prohibiting
    it, this constitutional amendment would amend the Bill of
    Rights for the first time in the history of the United States.
        Last night, the members of the Senate met at the Archives.
    We had a chance to once again see the document which guides our
    Nation, the Constitution--a rare bipartisan display, our
    families together seated for dinner just a few feet away from
    that magnificent document. That document, that piece of paper
    and the words on it are one of the few things that we have in
    common. All of us have sworn to uphold and defend that
    Constitution.
        I, for one, approach the idea of amending that Constitution
    with extreme humility. I don't want to be in a position where I
    am supporting an amendment which doesn't stand the test of
    Thomas Jefferson and the test of the Bill of Rights and the
    test of the greatness of that document. We need to think long
    and hard every single time someone steps forward and says it is
    just another legal document, go ahead and change it.
        No. I am sorry. That is not the way I view it. I will think
    long and hard before I change a single word in that
    Constitution, and it will have to meet some very high tests
    before we establish the need for that change.
        The flag is a unique and sacred symbol. Senator Byrd, a man
    who carries the Constitution in his breast pocket every day
    that he has served in the U.S. Senate, a man who has stood up
    for it probably more than any of us ever will, said during the
    debate in the year 2000, quote, ``We love that flag, but we
    must love the Constitution more. The Constitution is not just a
    symbol, it is the thing itself.'' I urge my colleagues to join
    me in opposing this amendment.
        Thank you, Mr. Chairman.
        Chairman Hatch. Thank you.
        Senator Feinstein.

      STATEMENT OF HON. DIANNE FEINSTEIN, A U.S. SENATOR FROM THE
                          STATE OF CALIFORNIA

        Senator Feinstein. Thank you very much, Mr. Chairman, and
    thank you very much for holding this hearing.
        I have supported this amendment for several years and I am
    an original cosponsor of the current resolution, S.J. 4, which
    proposes an amendment to the Constitution of the United States
    authorizing Congress to prohibit the physical desecration of
    the flag of the United States. This resolution would give
    Congress the opportunity to construct, deliberately and
    carefully, precise statutory language that clearly defines the
    contours of prohibited conduct.
        Now, I know that amending the Constitution is serious
    business and I know that we need to tread carefully. But the
    Constitution, after all, is a living text. As originally
    conceived, it had no Bill of Rights. In all, it has been
    amended 27 times.
        If the Constitution is democracy's sacred text, then our
    flag is our sacred symbol. In the words of Supreme Court
    Justice John Paul Stevens, it is a symbol of our freedom, of
    equal opportunity, of religious tolerance and of goodwill for
    other peoples who share our aspirations.
        If the flag had no symbolic value, we would not get chills
    when we see it lowered to half-mast or draped over a coffin.
    Are there any of us who can forget that great Joe Rosenthal
    photograph of the six Marines hoisting that flag on the barren
    crag of Mount Surabachi, after the carnage at Iwo Jima where
    over 6,800 American soldiers were killed?
        I remember seeing it on the front page of the San Francisco
    Chronicle. Joe Rosenthal was a photographer for the Chronicle.
    I remember seeing it as a small child and recognizing from that
    point on that the flag was something special.
        I was again reminded of our flag's significance after the
    horrific attacks on the World Trade Center on September 11,
    2001, when firefighters Dan McWilliams, George Johnson and Bill
    Eisengrein raised the American flag at Ground Zero. It
    symbolized an entire nation pulling together in the face of
    tragedy.
        That photograph ran in thousands of newspapers, on the
    Internet, on network television, an image which will forever be
    identified with 9/11. It immediately drew comparisons to the
    photo of the Marines raising the flag at Iwo Jima during World
    War II. And to this day, those images remained etched deeply in
    the minds of so many Americans, and indeed so many people
    around the world.
        Constitutional scholars as diverse as Chief Justices
    William Rehnquist and Earl Warren, and Associate Justices
    Stevens and Hugo Black, have vouched for the unique status of
    the national flag. In 1974, Byron White said, and I quote,
    ``There would seem to be little question about the power of
    Congress to forbid the mutilation of the Lincoln Memorial, or
    to prevent overlaying it with words or other objects. The flag
    is in itself a monument subject to similar protection,'' end
    quote. I could not agree more with the opinion of Justice
    White.
        Why, then, should it be permissible conduct to burn the
    flag, to desecrate it, to destroy this symbol, this emblem,
    this National monument? That is not my definition of free
    speech. For the first two centuries of this Nation's history,
    that was not the Supreme Court's definition of free speech
    either. In fact, until the Court's 1989 decision in Texas v.
    Johnson, 48 of the 50 States had laws preventing burning or
    otherwise defacing our flag.
        As I said at the outset, I don't take amending the
    Constitution lightly. But when the Supreme Court issued the
    Johnson decision and the subsequent United States v. Eichman
    decision, those of us who want to protect the flag were forced
    to find an alternate path.
        In the Johnson case, the Supreme Court by a 5-4 vote struck
    down a State law prohibiting the desecration of American flags
    in a manner that would be offensive to others. The Court held
    that the prohibition amounted to a content-based regulation.
        After the Johnson case was decided, Congress passed the
    Flag Protection Act of 1989. That Act prohibited all
    intentional acts of desecrating the American flag, and was
    therefore not a content-based prohibition of speech or
    expression. Nevertheless, another narrow majority of the
    Supreme Court Justices acted quickly to strike down that
    Federal statute, as well, ruling that it suffered the same flaw
    as the Texas statute in the Johnson decision, and was thus
    inconsistent with the First Amendment. That 5-4 decision makes
    today's discussion necessary.
        I support S.J. Res. 4 because it offers a way to return the
    Nation's flag to the protected status it deserves. Because we
    are protecting our National symbol, it makes sense to me that
    members of Congress representing the Nation as a whole should
    craft the statute protecting our flag.
        I also believe the amendment is consistent with free
    speech. I disagree with those who say we are making a choice
    between trampling on the flag and trampling on the First
    Amendment. Protecting the flag will not prevent people from
    expressing their ideas.
        I support this amendment because I believe flag-burning is
    content, not speech, and can be regulated as such. But to my
    friends who would argue otherwise, I remind them that even the
    right to free speech is not unrestricted. For example, the
    government can prohibit someone from shouting ``fire'' in a
    crowded theater. Obscenity and false advertising are not
    protected under the First Amendment, and indecency over the
    broadcast media can be limited to certain times of day.
        I recognize that by supporting a constitutional amendment
    on the flag, I am choosing a different course from many of my
    fellow Democrats in Congress, and quite frankly from many of my
    close friends for whom I have the greatest respect. But my
    support for this amendment reflects my broader belief that the
    time has come for the Nation to begin a major debate on our
    values. We need to ask ourselves what we hold dear. Is there
    anything upon which we will not cast our contempt?
        There are mothers and fathers, wives, husbands and children
    who have received that knock on their front door and have been
    told their loved one has been killed in the line of duty. They
    have been given a flag on this occasion, a flag which helps
    preserve the memory of their loved one and which speaks to his
    or her courage. That flag is the symbol, the emblem, the
    national monument. Requiring people to stop defacing or burning
    the flag is a very small price to pay on behalf of millions of
    Americans for whom the flag has deep personal significance.
        I would like to express my thanks to all who will be
    testifying today and I look forward to hearing your statements.
        Thank you, Mr. Chairman.
        Chairman Hatch. Well, thank you, Senator Feinstein, for
    your eloquent statement.
        I am going to put several letters and statements of support
    into the record, without objection.
        Senator Leahy. Mr. Chairman, if I could also submit a
    number of letters.
        Chairman Hatch. Without objection.
        Now, we will turn to our witnesses. We have a remarkably
    distinguished line-up of witnesses today and we are pleased
    that each of you could be here to share your expertise and
    point of view with us.
        Our first witness will be Hon. Daniel J. Bryant, if you
    will take your seat, General Bryant.
        He is Assistant Attorney General for the Office of Legal
    Policy in the Department of Justice. Mr. Bryant needs no
    introduction to this Committee, so I will just mention that he
    was confirmed to his current post in October 2003. Prior to
    that, he served as Assistant Attorney General for Legislative
    Affairs.
        We are really pleased to have you here, and I am, of
    course, pleased that the Bush administration supports S.J. Res.
    4.
        The second panel of witnesses will include General Patrick
    Brady, Chairman of the Citizens Flag Alliance. General Brady is
    undoubtedly one of the flag amendment's most passionate and
    articulate spokespeople. I appreciate all of his work, as well
    as the work of the dedicated members of the CFA, the Citizens
    Flag Alliance.
        Next will be Lawrence J. Korb, who is Senior Fellow at the
    Center for American Progress, the Adjunct Senior Fellow at the
    Council on Foreign Relations, and senior adviser for the Center
    for Defense Information. From 1981 to 1985, he was Assistant
    Secretary of Defense for Manpower, Reserve Affairs,
    Installations and Logistics. He is a 23-year Navy and Vietnam
    War veteran.
        So we appreciate your willingness, Larry, to testify here
    today.
        We are probably going to have Mr. Andretti speak first,
    since he has to catch a plane. John Andretti is a native of
    Bethlehem, Pennsylvania, who has won major victories in Indy
    cars and sports cars, and is now a highly-respected NASCAR
    Nextel Cup Series driver for Dale Earnhardt, Inc. He is the
    nephew of the legendary Mario Andretti and the godson of
    renowned Indy car pilot A.J. Foyt.
        I have read that Mr. Andretti is the first NASCAR driver to
    ever testify before the United States Senate.
        Senator Leahy. Mr. Chairman, if I could interrupt there,
    you say he has got to hurry to get a plane. The way Mr.
    Andretti drives and his uncle drives and all, why would he slow
    down to take an airplane?
        [Laughter.]
        Chairman Hatch. Well, I have a feeling he is going to be
    able to get to the airport on time. We will put it that way.
        We want to thank you for sharing your experience and views
    with us.
        Gary E. May is Associate Professor of Social Work at the
    University of Southern Indiana, in Evansville. He served in the
    Marines in the Vietnam War, where he was awarded the Bronze
    Star, the Purple Heart, Vietnam Campaign, Vietnam Service and
    National Defense Medals.
        So it is a pleasure to see you here again.
        Last, but certainly not least, we will hear from Professor
    Richard D. Parker, who is the Paul W. Williams Professor of
    Criminal Justice at the Harvard Law School. Professor Parker
    has been a great resource to the supporters of the flag
    amendment and I would like to thank him for that and for his
    testimony here today.
        So with that, we will call on you, General Bryant, and then
    we will put the rest of our witnesses at the table.

      STATEMENT OF DANIEL J. BRYANT, ASSISTANT ATTORNEY GENERAL,
    OFFICE OF LEGAL POLICY, DEPARTMENT OF JUSTICE, WASHINGTON, D.C.

        Mr. Bryant. Thank you, Mr. Chairman, Senator Leahy, members
    of the Committee. Here on behalf of the administration, I would
    probably be well advised to not make an opening statement, but
    simply ask that Senator Feinstein's statement be entered into
    the record twice. That was an extraordinary statement and I was
    glad to hear it.
        Mr. Chairman, I will make a shortened opening statement and
    simply ask that the full statement be entered into the record.
        Mr. Chairman, distinguished members of the Committee, thank
    you for the opportunity to join you today to reiterate the
    administration's continuing support for a constitutional
    amendment authorizing Congress to protect the American flag
    from physical desecration. The President joins a majority of
    members from both Houses of Congress in supporting this
    constitutional amendment to protect and honor this singular
    symbol of the American democratic ideal.
        Let me state at the outset that we do not believe that
    amending the Constitution is something to be undertaken
    lightly. Altering the Constitution is a weighty matter, but one
    that we believe is warranted to protect the unique, enduring
    symbol of our great Nation.
        It is noteworthy that Americans overwhelming refer to the
    flag as the American flag, not the United States flag. In a
    simple way, this habit provides an insight, I think, into the
    way we as Americans associate with the flag. It is not simply
    the flag of a particular constitutional system, that of the
    United States. Rather, it is the flag of us as a people. Over
    the centuries, in war and in peace, it has become an integral
    part of our identity as Americans. The administration believes
    that the Congress should allow the American people to accord
    the flag, our flag, the respect and corresponding protection it
    deserves.
        It is important to note that throughout most of our
    Nation's history, protecting the flag was permitted under the
    Constitution. Since the 1800's, protecting the flag peacefully
    coexisted with the Bill of Rights and a vigorous commitment to
    First Amendment-protected expression. Consequently, an
    amendment to restore that historic understanding poses no
    threat to our constitutional tradition. Indeed, it would honor
    and strengthen that tradition.
        There is no question that a great strength of our
    Constitution is that it has been a relatively fixed and stable
    document. This amendment would allow Congress to restore the
    fixed and stable understanding that we as a people can both
    protect our flag and maintain a zealous commitment to freedom
    of expression.
        There can be no doubt that under the current interpretation
    of the First Amendment, as articulated by the Supreme Court in
    Texas v. Johnson and U.S. v. Eichman, physical desecration of
    the American flag in protest is protected speech. Since 1989,
    attempts by Congress and by State legislatures to pass statutes
    to protect the flag have been struck down by the United States
    Supreme Court. Against this backdrop, it is clear that the only
    way the flag can be protected is through an amendment such as
    the one proposed by S.J. Res. 4 currently before this
    Committee.
        In closing, Mr. Chairman, S.J. Res. 4 is a simple measure
    providing in relevant part, quote, ``The Congress shall have
    power to prohibit the physical desecration of the flag of the
    United States,'' close quote. It is important to note that the
    resolution itself does not prohibit the physical desecration of
    the flag, but merely provides that Congress may do so. This
    will allow the democratically-elected legislature to decide how
    best to protect the flag from desecration.
        Furthermore, as with any resolution to amend the
    Constitution, by passing this resolution Congress is not itself
    amending the Constitution, but is simply providing the States
    an opportunity to deliberate and ultimately decide whether the
    Constitution should allow Congress to protect the American
    flag.
        For more than a decade now, 49 States have petitioned the
    Congress for that opportunity. We hope that Congress heeds
    their call. James Madison wisely counseled that amending the
    Constitution should be reserved for great and extraordinary
    occasions. We believe that this is such an occasion.
        Thank you, Mr. Chairman and members of the Committee.
        Chairman Hatch. Well, thank you, Mr. Bryant.
        Let me just ask a couple of questions, and hopefully we
    will all stay within a five-minute question period.
        Each time the Senate has considered a constitutional
    amendment that would allow Congress to prohibit physical
    desecration of the flag, quite a few members of this body who
    voted against this amendment have argued that passing a new
    statute would suffice. I have always found that intriguing.
    They don't think we should pass a constitutional amendment
    because they believe that burning the flag with contempt and
    doing other contemptuous physical acts of desecration happens
    to be speech, and yet they will vote for a statute, which is
    amazing to me. It looks pretty political to me, not sincere. It
    probably won't surprise you that I disagree with their
    conclusion that you can pass a statute.
        Given the Supreme Court's decisions in the Johnson and the
    Eichman cases, do you think that a so-called statutory
    alternative would survive scrutiny by the United States Supreme
    Court?
        Mr. Bryant. No, Mr. Chairman. Thank you for the question. I
    think one could have construed the first case, Texas v.
    Johnson, as permitting a statute to be drafted that might pass
    muster under the various principles articulated in Johnson.
        I think 1 year later, in U.S. v. Eichman, that potential
    for drafting a statute that would pass constitutional muster
    was taken off the table. Eichman came out and declared quite
    definitely that flag-burning is protected speech. So whereas
    Johnson, in effect, left the door open to a statute, Eichman, I
    think, very much closed that door.
        Chairman Hatch. Now, you testified that the administration
    supports allowing the American people, through their
    representatives in the State legislatures, the opportunity to
    vote on whether to adopt an amendment that would allow for a
    prohibition on flag desecration.
        As you know, the proposed amendment has passed the House of
    Representatives a number of times and is a very few votes away
    from passage in the Senate. In other words, we always have an
    overwhelming vote, but we have missed it by a few votes in the
    Senate. We have a new Senate now and I think we have an
    opportunity to maybe get it passed this year.
        Is it the administration's view that it would be healthy
    for our democracy and for our system of federalism for the
    Senate to pass S.J. Res. 4 and put this matter in the hands of
    the people out there in the States?
        Mr. Bryant. Yes, thank you, Mr. Chairman. That is the
    position of the administration. It is the position of many in
    Congress. It is the position of the majority of States, and
    apparently a majority of the American people.
        The Constitution wisely provided for the ability to amend
    the Constitution in its Article V. The American people, State
    legislatures and the Congress have used that mechanism 27
    times. As Senator Leahy pointed out, some 11,000 resolutions
    proposing amendments to the Constitution have been offered over
    the course of our country's history; 27 have been taken by
    State legislatures and the Congress and have been promulgated
    as amendments.
        It is telling to see how specific amendments were passed as
    a response to Supreme Court decisions. The 11th Amendment, the
    13th Amendment, the 14th Amendment, the 16th Amendment all are
    examples of the people, the State legislatures and the Congress
    taking up their Article V opportunity to respond to Supreme
    Court decisions. We think that Article V and the opportunity
    that is enjoyed by the States and Congress to amend the
    Constitution brings a vital democratic legitimacy to the
    Constitution and to judicial review itself.
        Chairman Hatch. Well, thank you. One last question. One of
    the most common reactions to the idea of the flag amendment is
    that we should not make anything illegal by way of a
    constitutional amendment. As you pointed out, however, my
    proposed amendment would not make anything illegal. It simply
    gives Congress the power to prohibit flag desecration if it
    chooses to do so. It is that simple. In other words, the
    elected representatives will make this decision, not five
    unelected Justices on the United States Supreme Court.
        If the amendment were passed and ratified and Congress
    began the task of writing a law, would the administration
    provide technical support to ensure that any implementing
    legislation accomplishes what is desired and avoids any
    unintended consequences?
        Mr. Bryant. We would be pleased to, Mr. Chairman. We think
    the Congress did a very good job back in 1989 with the Flag
    Desecration Act, given the guidance that it had under Texas v.
    Johnson. Subsequently, when the Supreme Court decided in U.S.
    v. Eichman, it became clear that the statute drafted would not
    pass muster with the Supreme Court. But given the guidance it
    had at the time, we think the U.S. Congress did a good job.
        We would be pleased now, on this side of United States v.
    Eichman, to continue to work with the Committee and the
    Congress to ensure that any language statutorily passed
    pursuant to an amendment avoided the various potential
    challenges that might arise.
        Chairman Hatch. Well, thank you so much.
        We will turn to Senator Leahy now.
        Senator Leahy. Thank you.
        Mr. Bryant, one thing that we all agree on here is that we
    are all heartened by the news that Attorney General Ashcroft
    has come safely out of surgery. I have written to him and Mrs.
    Ashcroft, but please pass on the best wishes of everybody here
    for a speedy recovery, and we look forward to seeing him back
    up here.
        Also, Mr. Chairman, I want to put in the record a statement
    by Senator Kohl.
        Chairman Hatch. Without objection.
        Senator Leahy. Mr. Bryant, under current law, I assume
    there is no question in your mind that if somebody came up here
    suddenly and smashed the loud speaker system, which is
    Government property, they could be prosecuted for that. Is that
    correct?
        Mr. Bryant. Yes, sir.
        Senator Leahy. And the same would apply if they came up
    here and destroyed the flags which are here and are Government
    property. They could be prosecuted for that, could they not?
        Mr. Bryant. Yes, sir.
        Senator Leahy. I had used an earlier example of somebody
    who came on my property and destroyed my flag. The same thing.
    They could be prosecuted, could they not?
        Mr. Bryant. As I understand the hypothetical, yes, sir.
        Senator Leahy. Actually, the only flag-burning incidents I
    have seen in years and years have been in other countries where
    they opposed American policies, but this amendment would have
    no way of reaching them.
        We have a lot of constitutional amendments up here. The
    President announced his support for a constitutional amendment
    regarding what is usually handled in State law, and that is
    marriage. It is now the administration's position that it
    supports a constitutional amendment on marriage and should not
    leave the issue to the States.
        Does the administration support the language that was
    introduced in the House by Representative Musgrave and in the
    Senate by Senator Allard?
        Mr. Bryant. I don't know that the administration has taken
    a position at this point, Senator, other than the President
    indicating in his statement some weeks back a number of
    principles that he would want to see embodied.
        Senator Leahy. Is the administration going to take a
    position on the wording of any proposal? Is the administration
    going to take a position on any of the constitutional
    amendments before us on marriage?
        Mr. Bryant. I expect the administration will be pleased to
    be working with the Congress on the text itself and would
    ultimately take a position as appropriate.
        Senator Leahy. That is not really my question. Is there
    text that the administration now supports on the question of
    marriage?
        Mr. Bryant. I am unaware that the administration is
    currently officially supporting any specific text. I do know
    that the administration is pleased to work with various members
    of Congress that have propounded text.
        Senator Leahy. But they haven't taken a position on any of
    the various proposals out there?
        Mr. Bryant. That is my understanding, Senator.
        Senator Leahy. Now, does the administration support having
    the States vote to amend the Constitution to encompass the
    language that is before us on flag-burning?
        Mr. Bryant. The administration supports the text of S.J.
    Res. 4, which language would, of course, if passed by the
    Congress by two-thirds vote of both Houses, have to go to the
    States and pass three-quarters of the States.
        Senator Leahy. Maybe I should break it down. The
    administration supports having the Congress provide the two-
    thirds vote to support the language now before us. Is that
    correct?
        Mr. Bryant. Yes, sir.
        Senator Leahy. Does the administration then support having
    the requisite number of States support it? Is that the
    administration's position?
        Mr. Bryant. It does. The administration presumably would be
    willing to work with the Congress, should it see fit to modify
    the text of S.J. Res. 4 in any respect such that it might then
    be in a position still to support modified language that might
    go to the States. I wouldn't want to foreclose that
    possibility.
        Senator Leahy. But currently it is the administration's
    position that they support this language and support having the
    Congress pass it with the requisite number and then the
    requisite number of States pass it.
        Mr. Bryant. That is my understanding.
        Senator Leahy. They do or they don't.
        Mr. Bryant. I understand them to support the text of the
    resolution.
        Senator Leahy. Mr. Chairman, I have other questions that I
    will introduce for the record. As I mentioned to you earlier,
    like so many Senators, I am supposed to be at three different
    hearings at once. I commend you for having this hearing.
        Again, please pass on our best wishes to the Attorney
    General and tell him we look forward to seeing him back hale
    and hardy and up here.
        Mr. Bryant. Thank you, sir.
        Mr. Chairman, if I might, before Senator Leahy leaves, with
    respect to the question of the flags in this room that are
    protected that we have had a chance briefly to discuss, I just
    wanted to follow up.
        I think the policy question is, as I understand it, should
    the American flag have to borrow protection from the protected
    status of other protected items. It is the position of the
    proponents of this resolution that the American flag should
    benefit from an independent protected status and not simply be
    protected when it is on someone's private property or when it
    has been stolen as the private property of another individual.
        Senator Leahy. Is there anything else that has such
    protection in our Constitution, such stand-alone protection the
    way you described it?
        Mr. Bryant. I think the category that strikes me as being
    similar, though not identical, is that of our key landmarks,
    our key monuments. The Lincoln Memorial--
        Senator Leahy. Those are protected under very specific
    laws, laws that have been upheld constitutionally. Is there
    anything else in our Constitution that is given such unique
    constitutional stand-alone protection?
        Mr. Bryant. Other than the flag itself until 1989, I am not
    sure of another item.
        Senator Leahy. Thank you, Mr. Bryant, good to see you.
        Mr. Bryant. Thank you, sir.
        Chairman Hatch. The Senator from Idaho.
        Senator Craig. Only to thank Mr. Bryant for being here and
    stating as clearly as he has where the administration is on
    this issue. I think he has spoken the essence of what this
    Committee needs to react to, and that is our responsibility to
    allow the American people to speak out on this issue. I agree
    with the Senator from California that it really is time that
    this country once again engage in these kinds of historic
    debates. Certainly, this would provoke one and it would be
    extremely valuable for our country to have it.
        Thank you for being here.
        Mr. Bryant. Thank you, sir.
        Chairman Hatch. Senator Durbin.
        Senator Durbin. Thank you, Mr. Bryant. Please add my wishes
    to those of the other members of the Committee about the
    Attorney General. I understand he has been through a pretty
    tough week and we wish him the best and hope for his speedy
    recovery.
        Mr. Bryant. Thank you.
        Senator Durbin. I want to make sure I understand the
    administration's position. Two weeks ago, the President said he
    favored a constitutional amendment relative to same-sex
    marriage. Today, the testimony that you are presenting suggests
    that the administration supports a constitutional amendment on
    flag desecration.
        What other constitutional amendments is the administration
    supporting?
        Mr. Bryant. Like administrations before it, it also
    supports a constitutional amendment in connection with victims
    rights. As you know, Senator, the support for that amendment
    goes back a number of administrations, as does support for this
    resolution before us today. Support for this resolution, which
    would permit Congress to protect the flag against physical
    desecration, precedes this administration.
        Senator Durbin. Are there any other constitutional
    amendments that the administration is supporting?
        Mr. Bryant. None that I am aware of.
        Senator Durbin. Based on your argument that the States
    should have a chance to express their will, does the
    administration believe that the equal rights amendment should
    once again be submitted to the States for consideration?
        Mr. Bryant. I am not aware that the administration has
    addressed that issue, Senator.
        Senator Durbin. Has the administration taken a position on
    any constitutional amendment relative to Roe v. Wade or
    abortion?
        Mr. Bryant. I am not sure of the administration's
    discussion in connection with any such amendment, Senator.
        Senator Durbin. Mr. Bryant, a lot of people raised a
    question several weeks ago when the President proposed the
    constitutional amendment on same-sex marriage as to the
    position of Vice President Cheney, who during the course of his
    debate with Senator Lieberman said that he thought this issue
    should be decided by the States and that Federal action, he did
    not believe, was necessary.
        Is that Vice President Cheney's position today or has he
    changed his position?
        Mr. Bryant. I could not speak to the Vice President's
    position today, Senator.
        Senator Durbin. Can you tell us whether Secretary of State
    Colin Powell, who opposed this amendment, has changed his
    position and now supports the administration's position?
        Mr. Bryant. Likewise, I am not in a position to know.
        Senator Durbin. Thank you very much, Mr. Bryant.
        Mr. Bryant. Thank you.
        Chairman Hatch. Senator Feinstein.
        Senator Feinstein. Thanks very much, Mr. Chairman.
        Thank you very much for your comment, Mr. Bryant. I
    appreciate it.
        Mr. Chairman, I would like to submit for the record a story
    dated October 26 from the Washington Times. I don't think
    anybody should believe that flag desecration doesn't take place
    in this country. It does, and this is one such incident which
    took place in October when the American flag was burned on
    Constitution Avenue near 15th Street.
        So I would like to be in the record, if I might. I will
    assume that is agreeable.
        Mr. Bryant, on page 3 of your written statement you cite
    the language of the Flag Protection Act of 1968. You may not
    want to answer this, but do you believe that if the
    constitutional amendment were successful that this language
    could be reinstituted and would meet legal scrutiny?
        Mr. Bryant. It is a good question, Senator. I wouldn't want
    to give the definitive response today. Looking at the language
    of the 1968 Act, there are a number of terms that would require
    a close evaluation.
        There is certainly no doubt, in our judgment, that a
    statute protecting the flag against physical desecration could
    be passed that would certainly withstand constitutional
    scrutiny. Whether or not the 1968 Act would, I would want to
    reserve judgment.
        Senator Feinstein. Then my next question would be would you
    be willing to draft a statute that you believe would meet legal
    scrutiny that we might be able to utilize in our discussions
    and debate on this subject?
        Mr. Bryant. We would, and were we to do that, Senator,
    working with the Committee, working with the Congress, an
    outstanding starting point would be the 1989 Act that passed
    with 91 votes in the Senate.
        Senator Feinstein. Could you refresh our memory? I didn't
    see it in your comments, but perhaps you do have it in your
    written comments. Do you?
        Mr. Bryant. Yes.
        Senator Feinstein. On what page?
        Mr. Bryant. Actually, I don't know if it is in the written
    comments. I have it and could provide it to you, and it is
    elegant in its simplicity. Unfortunately, Eichman, the
    subsequent Supreme Court case, struck it down on grounds not
    specific so much to its drafting, but more in connection with
    the objective it was seeking to accomplish. But it is still on
    the books, Senator. It is Title 18 of the United States Code,
    Section 700. So it is there even though it has been struck down
    pursuant to Eichman.
        Senator Feinstein. Well, if you would be willing to take a
    look at that, then, and if you would recommend any
    improvements, I certainly would like to have it, and I think
    the Committee ought to have it as well.
        Mr. Bryant. We would be pleased to. Senator, it has been
    pointed out to me that the text is contained in a footnote in
    the written statement. It might be footnote 8, and on the copy
    I have been provided it is page 3 of the statement.
        Senator Feinstein. Page 3 or 6?
        Mr. Bryant. See if there is a footnote that reads, quote,
    ``Whoever knowingly mutilates, defaces, physically defiles,
    burns''--
        Senator Feinstein. Page 6. ``...physically defiles, burns,
    maintains on the floor or ground, or tramples upon any flag of
    the United States shall be fined under this title or imprisoned
    for not more than 1 year, or both.'' Okay, so that is
    essentially the latest. So I think it would be very useful to
    have you take a good look at that, if you would, and get back
    to us if you recommend any changes or improvements.
        Mr. Bryant. Very good. We would be pleased to.
        Senator Feinstein. I know it is a long way off, but being
    prepared is not a bad idea either.
        Thank you very much.
        Mr. Bryant. Thank you.
        Senator Feinstein. Thanks, Mr. Chairman.
        Chairman Hatch. Thank you, General Bryant. We appreciate
    you being here and appreciate your eloquent remarks and the
    answers to the questions. We will appreciate any help you can
    give on this matter.
        Mr. Bryant. It will be a pleasure. Thank you, Mr. Chairman.
        Chairman Hatch. And send our best wishes to Janet and her
    husband, the Attorney General. We are pulling for him and
    praying for him, and we hope everything is okay.
        Mr. Bryant. Thank you, sir.
        Chairman Hatch. Great to have you here. We will let you go
    at this time.
        Mr. Bryant. Thank you.
        [The prepared statement of Mr. Bryant appears as a
    submission for the record.]
        Chairman Hatch. Let's have the five witnesses come to the
    table. I have introduced you already. They will put the name
    tags up. We are going to start with Mr. Andretti first, since
    he has to catch a plane, and then we will go to General Brady.
        Mr. Andretti, if we could begin with you, we are so honored
    to have you here. We appreciate you taking time from what we
    know is a busy schedule, and I think it is a good thing that
    you are the first NASCAR driver to appear before the United
    States Senate. We know it is a little bit disconcerting to have
    to appear before the Senate, but we are grateful to have you
    here. It is not nearly as frightening as what you do on a day-
    by-day basis.

     STATEMENT OF JOHN ANDRETTI, NASCAR NEXTEL CUP SERIES DRIVER,
                      MOORESVILLE, NORTH CAROLINA

        Mr. Andretti. Much more frightening, believe me.
        To get started, I would like to introduce a colleague of
    mine, Raleigh Hemling, who is the President of the United
    States Auto Club.
        Chairman Hatch. It is great to have you with us.
        Mr. Andretti. Good morning. My name is John Andretti and I
    want to thank the members of the Judiciary Committee for
    holding this hearing, and thank you also for inviting me to
    talk on a matter that is of importance to me and the great
    majority of Americans, protecting their flag from acts of
    physical desecration.
        By the end of World War II, my father's family had lost
    everything. He and his brother grew up in a relocation camp in
    eastern Italy, living there from the time they were 8 years old
    until they were 16. They came to the United States at that
    point, a land of freedom and opportunity, and I am proud to say
    they made the most of it.
        Sometimes, he has a hard time describing it because of the
    emotion, but my father has told me, after seeing the flag of
    the United States first when liberated in his native Italy and
    later when liberated into a new life for him and his family,
    the flag of the United States represented goodness and freedom.
    That is a lesson he has taught to his children and a lesson I
    am teaching to mine.
        Being a father of three, it is important for me to teach my
    children respect and honor, not only for individuals but also
    on a whole, and the flag is a means to that end. Our faith is
    our foundation, but there must be more and it must be tangible
    and it is found in the flag.
        This is obviously not my environment. I am usually wearing
    a fire-retardant uniform emblazoned with the colors of my
    sponsors and talking about NASCAR racing. I am a race car
    driver and have driven for more than 30 years, everything from
    carts to Indy cars and NASCAR race cars.
        In fact, I hope every member of this Committee will come
    join us at a track sometime. Each one of you is very welcome. I
    know Senator Kyl and Senator Graham can tell you how great the
    fans are, and I know Senator Biden, Senator Edwards and Senator
    Sessions can tell you how much fun our races can be.
        And they can tell you something about my bosses, the
    millions of people who follow motor sports in this country.
    When all is said and done, every driver in major league racing
    works for the fans, and when you work for someone, you get to
    know them. I have learned a lot about those fans, as well as my
    fellow competitors and those who run the sport. I feel I am
    representing a huge majority of them here today.
        I am here because I fully believe in what General Brady and
    the Citizens Flag Alliance are about. I am very proud to be an
    American. Military or civilian, native or immigrant, the flag
    is our bond. I fly the flag at my home 24 hours a day. And,
    yes, it is lighted for all to see. I appreciate what the flag
    stands for and I know quite well what it means to the millions
    of Americans who follow motor sports racing. I think most of
    them would be surprised, if not outraged, to learn that today,
    in our country, it is legal to physically desecrate the flag of
    the United States.
        There are those who say the flag is only a symbol, but
    symbols are important. Just as it was a symbol of freedom to my
    then 8-year-old father in Italy, and later a symbol of
    opportunity to him and his family as he entered this country
    for the first time, it had a message.
        Race officials rely on symbols on flags to communicate with
    drivers during noisy racing action. Even with radios today,
    flags are still important and functional in racing. In quite
    the same way, our Nation's banner is important and functional
    and still sends a message. In NASCAR racing, you will see flags
    waved a lot, but there is one flag that gets waved by NASCAR
    fans more than any other, and that would be the red, white and
    blue of Old Glory.
        Early in our Nation's history, the flag of the United
    States was something of a signal flag. Out in front of the
    troops, it signaled action by our military against the forces
    that would otherwise overrun us. It serves as a symbol of that
    very notion today as American troops defend our liberties and
    protect our interests around the world. Burning a flag, it
    seems to me, is a very profound signal that those who desecrate
    the flag have a total disregard for our military.
        In 1967, Congress passed a Federal law that prohibited flag
    desecration right here in the District of Columbia. Congress
    passed that law because of the effect that flag desecration had
    on the morale of the troops then fighting in Vietnam. That law,
    now made invalid by the Supreme Court, was the last show of
    Congressional flag-related support for America's military men
    and women who are engaged in war. We should honor today's
    warriors and underpin morale by once again making it illegal to
    physically desecrate the flag.
        I have to admit I have never seen the flag burned, other
    than on a television newscast. Those I work with and those I
    work for, NASCAR fans, aren't the kind of folks who take to
    this sort of thing. Their flag is important to them. They
    respect it and they protect it.
        I once heard a man say that the flag represents the freedom
    to burn it. I would disagree, and I think most Americans would,
    too. The flag is a symbol that represents all that our Nation
    is can be. It symbolizes what the people say it symbolizes, and
    the great majority certainly don't believe that includes the
    freedom to desecrate it.
        As a sign to rally for a cause, there can be no greater
    symbol than our flag. We rally around it in times of crisis,
    whether a natural disaster or a global conflict. Our history
    bears that out. The September 11, 2001, attack on America is a
    prime example of what Americans feel for their flag and what
    they know it to be as a symbol of strength, determination and
    resolve for a free people to remain so.
        The Citizens Flag Alliance and the American Legion have
    done a great deal of polling over the years. The figures are
    remarkable. Very consistently, they have shown that more than
    three of four Americans want their flag protected. Honestly, I
    am surprised the numbers aren't higher. I am sure they are
    higher among NASCAR fans, who are a pretty good representation
    of mainstream blue-collar and white-collar America.
        Some look at the flag and just see a piece of cloth. That
    perception might be acceptable, but their understanding of the
    flag's value is lacking. The bits of fabric that make up the
    flag are only cloth, but when you pull them together in that
    recognized pattern, something happens. As the flag, it becomes
    a binding force that holds us together as one people, and those
    who would desecrate it are out to break that bond. Nothing
    tears down America more than burning the flag.
        I am a businessman by profession and a race car driver by
    choice, but inside I am still something of a country boy from
    Bethlehem, Pennsylvania, where life is still pretty
    uncomplicated. To me, the need to protect the flag is easy to
    explain.
        Events of late find us reflecting on values that we believe
    are important and necessary in a free society. One has the
    right to freely associate--a major values battle now being
    fought by the Boy Scouts of America. Another is the right to
    publicly invoke the name of God in a patriotic exercise--
    another major values battle being wage by the American Legion
    in their effort to keep the words ``under God'' in the Pledge
    of Allegiance to the Flag.
        As a Nation, we are bound together by our shared beliefs in
    such values, and we are bound by tradition as Americans to pass
    along to younger generations the importance of upholding those
    values that are uniquely American.
        One of the greatest tools for teaching values of respect,
    commitment, loyalty and patriotism is the flag of the United
    States. But how do you explain to a youngster that it is right
    and customary to respect our flag, but okay to burn it? I have
    three young children and I spend time with children all over
    the country because of my racing activities, and I have no way
    to explain that to them.
        What we are about today and what we are here for is
    important to all, I know, but what carries forth from here
    today is of greater importance. We are considering more than
    just the flag here. We are helping to assure that the flag that
    flies throughout the Nation is seen, treasured and honored
    everyday. You never know. It may give cause for a youngster to
    ask what the flag is for, what it means, or why it is
    important.
        The answer for most of us should be easy. That flag is
    about values. It is about tradition, it is about America and
    the men and women who paid an awful price for what we have
    today. We honor and cherish members of our armed forces and
    veterans of military service when we honor and protect the
    flag.
        Draping the flag over the coffin of a fallen soldier,
    placing a flag near a grave or hanging a flag from your house
    on Memorial Day are all ways we honor and express our
    appreciation for those who have fought and died defending
    America. When our laws sanction the physical desecration of the
    flag, the honor is diminished and the recognition is dulled.
        There is importance to the flag as a symbol and one that
    has a noble function. In racing, your helmet is your trademark,
    and mine is red, white and blue, with the American flag as a
    theme. My work clothes are colorful reflections of my sponsors
    who support me. The flag has the same function for our men and
    women in uniform. For them, it is a reflection of the people
    who support them in their job of protecting all of us.
        The American people deserve the backing of this body in
    their desire to protect the flag, and a constitutional
    amendment to return that right to the people is the only way.
    For those who still can't see the flag for all it is, or who
    hold concern for amending the Constitution, we say keep that
    concern. We respect your position, but please consider the
    desire of a great majority and move the flag amendment off of
    Capitol Hill and send it to the States for debate and
    ratification. Let the people decide.
        Thank you.
        Chairman Hatch. Well, thank you so much, Mr. Andretti. I
    will tell you, I am a fan, but I am going to be even more of a
    fan after hearing you testify. I appreciate you taking time to
    be with us today. I know I indicated that we would try to get
    you out of here by 11:30 so you can make your plane. So we will
    let you go at this time, with our gratitude that you took the
    time to come here and testify in this important hearing.
        Mr. Andretti. Well, I have, obviously, very profound
    feelings about it. I have a family that is important to me, and
    I am honored and privileged that I could come here.
        Chairman Hatch. Well, thank you so much.
        Mr. Andretti. Thank you.
        Chairman Hatch. We will let you go, then. Thanks for being
    here.
        [Applause.]
        [The prepared statement of Mr. Andretti appears as a
    submission for the record.]
        Chairman Hatch. General Brady, why don't you take the
    center seat now so that you are all together?
        We will turn to you, General Brady. We are so honored to
    have you here. You are one of the greatest heroes this country
    has ever known, and we know that you feel very deeply about
    this and we are going to give you a chance to express yourself
    on this very important amendment.

    STATEMENT OF PATRICK H. BRADY, CHAIRMAN OF THE BOARD, CITIZENS
      FLAG ALLIANCE, AND RECIPIENT, CONGRESSIONAL MEDAL OF HONOR,
                           SUMNER, WASHINGTON

        Mr. Brady. Thank you, sir. On behalf of the Citizens Flag
    Alliance, we are deeply appreciative of you allowing us to
    testify.
        We realize that there are good and great Americans on both
    sides of this issue, and there are some others who think it is
    just hokey; they think it is a waste of time. And it would, in
    fact, be a waste of time if all this fuss were about flag-
    burners or flag-burning itself. No matter how emotionally it
    affects most people, flag-burning is a petty act, surely done
    to attract attention, to attack our country, our traditions and
    our patriotism, but it is a petty act nonetheless.
        So I want to make it clear from the beginning that our
    primary concern is not flag-burners. They are with us always.
    We will always have people who hate America. We agree with
    Colin Powell. But this is not about miscreants who burn the
    flag. Our concern is the Constitution and those miscreants who
    have amended the Constitution without the approval of the
    people by inserting flag-burning in the Bill of Rights. We are
    concerned with others who would deny the people the right to
    decide this issue.
        The struggle for our flag has been long and fatiguing, but
    we are energized in this effort by our contract with
    patriotism--the oath that we took to protect and defend our
    Constitution, an oath that defines patriotism itself. All
    Americans take this same oath when they recite the Pledge of
    Allegiance, and that is the bottom line. By defending the right
    of the people to protect the flag, we are defending the
    Constitution.
        The Supreme Court, we believe, made a mistake by calling
    flag-burning speech, and it is the duty of every American to
    correct any error by our Government. Flag desecration is not
    speech, and it desecrates our Constitution to say so. A review
    of the magnitude of great Americans who support this fact
    confirms it.
        Baseball great Tommy Lasorda, who testified here, spoke for
    common sense and for common Americans, the dictionary and three
    out of four Americans when he said ``speech is when you talk.''
    Justice Hugo Black spoke for every Chief Justice of the United
    States and Justices on five Supreme Courts 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.''
        U.S. Representative John Murtha spoke for 70 percent of the
    Congress when he said, ``Burning and desecration of the flag is
    not speech. It is an act, an act that inflicts insult, insult
    that strikes to the very core of who we are as Americans and
    why so many of us fought and died for this country.''
        General Norman Schwarzkopf spoke for our warriors when he
    said, ``I regard legal protections for our flag as an absolute
    necessity and a matter of critical importance to our Nation.''
        We have heard from opponents of the flag amendment that our
    troops are actually fighting for the rights of flag-burners.
    Who among them would stand before these men and women, or my
    daughter who has just returned from Iraq, and tell them that
    they are fighting and dying in the streets of Iraq so that
    Americans can burn the flag on the street corners of America?
        You add to this mighty armada the legislatures of all 50
    States and our President, and no reasonable person could deny
    that the Court made a mistake. By the way, James Madison, the
    author of the First Amendment, and Thomas Jefferson agreed that
    flag-burning was not speech.
        The Framers intended to protect political speech, and that
    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. What the communist, Gregory
    Johnson, said when he burned the flag:--``red, white and blue,
    we spit on you''--may not add to the political dialogue, but it
    is certainly protected by our Constitution. What he did when he
    burned the flag is not.
        We could go on and on about that, but I think Walter Berns
    in his book, Making Patriots, said it very well. ``The First
    Amendment,'' he said, ``protects freedom of speech, not
    expression, and whereas all speech may be expression of a sort,
    not all expression is speech, and there is good reason why the
    framers of the First Amendment protected the one and not the
    other.'' The good reason is not difficult to see. The
    Constitution cannot pick and choose between actions that are
    speech and those that are not. Common sense tells us if the
    Framers meant expression, protection of the press and assembly
    would have been redundant.
        But legalized flag-burning goes beyond desecration of our
    Constitution. It also desecrates our values as a people.
    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 for
    the values embedded in our Constitution which is embodied by
    our flag.
        Yet, despite the enormity of evidence, we believe it is
    important to address the concerns of those who are confused and
    those who disagree on this issue, and we have done this in some
    detail.
        First, those who say flag-burning is speech and should be
    protected by the Constitution, but say they want a statute to
    protect the flag. The Supreme Court has made it clear that this
    cannot happen, and it has been reinforced today. It has been
    tried.
        It is important to know that the flag amendment does not
    protect the flag. It simply takes control of the flag away from
    the judges and returns it to the people, where they can
    protect, then, if they choose. Those who want a flag protection
    law can have it simply by voting for the flag amendment.
        But how can those who say, as Senator Hatch has said, that
    flag desecration is speech, then support a law prohibiting flag
    desecration? To those who 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 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 bikinis on the coffin
    of a veteran or on their own coffin.
        For over 200 years, we have had laws defining flag
    desecration and our courts have had no problem defining a flag.
    Any fifth-grader knows what the American flag is. Many people
    say that the flag is precious to them, but oppose protection.
    We would ask them if they have anything that they love that is
    precious to them which they would not protect. Is there any
    other precious symbol in America that is not protected? Pat
    Boone said that is like saying he loves his mother, but it is
    okay to bat her around.
        Some distrust the will of the majority, even fear a tyranny
    of the majority. They worry that the majority may exercise
    their will over a more virtuous minority. To them, we ask if
    the minority on the Court who voted to protect the flag was
    more virtuous than the majority who voted for flag-burners, or
    if the minority that voted for their opponent is more virtuous
    than the majority that voted for them.
        Some have actually said that since dictators protect their
    flag, protecting our flag aligns us with dictators. We wonder
    how any American can compare Old Glory, designed by the father
    or our country, protected according to the will of a free
    people--how they can compare that to a hammer and sickle or a
    swastika, protected according to the will of a dictator.
    Jefferson and Madison believed our flag should be protected.
    Does that align them with Stalin or Hitler?
        Some are concerned with the number of efforts to amend the
    Constitution. Why is there no concern when the courts amend the
    Constitution? They do it frequently and illegally. Why does the
    majority count only when it wears black robes and not when it
    wears working clothes?
        Look what the majority in courts have done with
    pornography, with prayer, the Ten Commandments, the Pledge,
    with the Boy Scouts, with marriage. There have been over 11,000
    attempts to amend the Constitution; only 27 have succeeded. The
    people take this responsibility very seriously.
        An amendment that addresses the Bill of Rights could start
    a great debate and awaken the people as to what is being done
    to their Constitution. Once the people are aware, they will be
    outraged and they will act, and we have seen that outrage after
    the Super Bowl and the impact that that had on the moral
    midgets in the media. We saw the people's outrage in
    California. They fired their government, and I think that sent
    a message to all people in government. We need to send a
    message to the courts.
        The flag amendment will energize the people and could help
    stop the slippery slope of constitutional desecration. 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. If that flag is precious
    enough to cover the coffins of our dead warriors, it is
    precious enough to be protected.
        Thank you, sir.
        [The prepared statement of Mr. Brady appears as a
    submission for the record.]
        Chairman Hatch. Thank you so much, General. It was an
    eloquent statement. I don't know that I have ever heard a more
    eloquent statement. I think Senator Feinstein's statement was
    very good to hear today, as well. But I appreciate that as
    somebody who naturally is the sponsor of this amendment.
        But it is important to listen to the other side, as well,
    so we will turn to you now, Mr. Korb. We are grateful that you
    would take time from your busy schedule to be with us. We
    respect you and look forward to hearing your testimony.

       STATEMENT OF LAWRENCE J. KORB, SENIOR FELLOW, CENTER FOR
                AMERICAN PROGRESS, ALEXANDRIA, VIRGINIA

        Mr. Korb. Thank you very much, Mr. Chairman and members of
    the Committee. In the interest of time--we are running late--I
    would like to submit my statement for the record and make a few
    comments here.
        Chairman Hatch. Without objection.
        Mr. Korb. I am honored to be here with some genuine heroes
    like General Brady and Professor May, and I want to first
    address six points. Number one, I can understand why people
    want to have this amendment at this time because they want to
    show support for our veterans and for the men and women in our
    armed services.
        But as has been pointed out earlier, if you want to do
    that, the first thing you have got to do is resist some of the
    very draconian measures that people are trying to put forward
    that will impact the veterans and our fighting men and women.
        We have already talked about what is happening with
    veterans' medical care. I think the head of the VFW put it very
    well when he said the President's budget, when it comes to what
    is happening to medical care for our veterans, is a disgrace
    and a sham. I am happy that Senator Craig said that will be
    corrected. Senator Durbin mentioned it had been voted down, but
    I think it is important. It is not just this year. If you look
    at the President's budget for veterans' medical care budget
    over the next 5 years, it gets worse. So I think it is very
    important to stop that.
        Second, we have got concurrent receipt. A man or woman who
    earns a military retirement, loses part of their retirement, if
    he or she has a disability. When the Congress tried to deal
    with this 2 years ago, Don Rumsfeld, the Secretary of Defense,
    said he would recommend to the President to veto the bill.
    Fortunately, the Congress didn't listen and did change it, but
    phased it in over 10 years. Why wait? All of the men and women
    over the years who have basically been short-changed--that is
    something you need to deal with.
        Number three, the administration fought the Congressional
    increases in hostile fire pay and family separation pay. Can
    you imagine, at a time when we are at war, they are trying to
    roll back those benefits?
        Fourth, in what the Army Times, the services' own
    newspaper, called an active betrayal in the midst of war, they
    are talking about closing commissaries and schools on military
    bases. Can you imagine if you are transferred around or you are
    serving overseas and your child cannot go to what you know is a
    good school?
        Fifth, Tricare for our Guard and reserves. As we all know,
    when you change jobs, the most difficult thing that you have to
    deal with is getting a new health care plan. Well, if you are
    called up to active duty, as many of them have been, on 48
    hours' notice, you are sent overseas and your family is put
    into a new health care system. This is a tremendous problem.
        Why not allow them to join the Tricare system so that when
    they get called up, as they have with increasing frequency,
    they don't have to change health care plans? Again, the
    Congress took some action in this area over the objections of
    the administration, but it ends this year. I would urge you to
    make it permanent.
        And then, finally, in order to prevent back-to-back
    deployments particularly of Army people, the unnecessary and
    the too-frequent call-up of Guard and Reserves, we need to
    increase the size of the active Army by at least 40,000 or
    50,000 people. If you do those things, I think you will do an
    awful lot to address the concerns of a lot of the men and women
    here.
        Now, let me briefly turn to why I think this amendment
    doesn't make a great deal of sense. For those of us who serve
    the country as military, civilian, political appointees, civil
    service appointees, we did not think we were defending a piece
    of geography. It was a way of life, and I think this amendment
    basically diminishes our way of life, the things that we fought
    for. It is bad public policy.
        I would like to associate myself with the comments of a man
    with whom I had the privilege of serving in the Reagan
    administration, now Secretary of State Powell--I think his
    letter said it all--and also with the late Senator Chafee, a
    person whom I had the privilege of voting for when I taught at
    the Navy War College in Newport, Rhode Island. It is simply bad
    public policy to do this. It will be the first time that we are
    passing an amendment to limit the freedoms given to us by the
    Bill of Rights.
        The second problem is the proposed amendment is vague. As
    has already been pointed out here, you could be prosecuting
    people even for political ads.
        Third, it has not been supported by several Congresses. We
    talk about the Supreme Court and how the issue has been decided
    in five-to-four decisions, Texas v. Johnson and United States
    v. Eichman. That doesn't change what the Court does because,
    remember, the Court made a decision of who will be President on
    a five-to-four basis. So by saying it was a narrow majority
    doesn't impact on what is the law of the land. And, sure, when
    you ask people, in the abstract, do you support this, they say
    fine. But when you tell them it is the first time we would have
    an amendment to limit the freedoms in the Bill of Rights, then
    that opinion changes.
        Then, finally, as has been pointed out here, it is not
    necessary. The number of people who would be covered under this
    amendment is not very large. And as has been pointed out
    several times, you can be prosecuted under other statutes.
        Thank you very much for listening to me.
        [The prepared statement of Mr. Korb appears as a submission
    for the record.]
        Chairman Hatch. Thank you, Mr. Korb.
        Professor May, we will turn to you.

     STATEMENT OF GARY E. MAY, ASSOCIATE PROFESSOR OF SOCIAL WORK,
          UNIVERSITY OF SOUTHERN INDIANA, EVANSVILLE, INDIANA

        Mr. May. Thank you. Nearly afternoon, but still good
    morning. I am extremely flattered and humbled by your
    invitation and interest in listening to my thoughts and those
    of other veterans about the proposed amendment to the
    Constitution. I gladly accepted this 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 wish to
    exchange fought-for freedoms for protecting a tangible symbol
    of those freedoms.
        I joined the U.S. Marines while I was 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. During my service with K Company, 3rd
    Battalion, 27th Marines, following the Tet offensive in Vietnam
    in 1968, I sustained bilateral above-the-knee amputations as a
    result of a land mine 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.
        Over the past nearly 36 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,
    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.
        I ask members of this Committee to think about why they
    love our country, to find the source of their own patriotism.
    Has that patriotism been forced upon you? Have you been coerced
    to love America? Are your convictions not your own?
        A few years back, I mentioned the anniversary of my
    wounding to a colleague and asked her what she was doing those
    years ago. Somewhat reluctantly she said, ``I was protesting
    the war in Vietnam.'' I was not offended. After all, our Nation
    was born out of political dissent. Preservation of the freedom
    of dissent, even if it means using revered icons of this
    democracy, is what helps me understand losing my legs.
        The American flag stands for a long history of love and
    loss, of war and peace, of harmony and unrest. It also stands
    for the history of a nation unsatisfied with the status quo, of
    a nation always in search of a greater truth, a more perfect
    union. Surely, it does not stand for a nation where we jail
    those who peacefully disagree with us, regardless of the
    abhorrent nature of their disagreement.
        As offensive and painful as flag-burning is to me, 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.
        Since 1999, the year I last testified before this Committee
    on this issue, over 2,400 veterans have written and joined my
    little group called Veterans Defending the Bill of Rights.
    Unlike most of the groups that support this amendment, we are
    solely organized in opposition to the amendment. Many of us are
    even members of the organizations that are listed as supporting
    the amendment.
        We are here to make sure that it is clear that veterans do
    not all speak with one voice on this issue. A number of these
    combat veterans would have been more than willing to testify
    here today. I have included excerpts from some of their letters
    in my written testimony, and ask that members take the
    opportunity to listen to their voices.
        In addition to my own military combat experience, I have
    been involved in veterans affairs in various capacities 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. 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. I discuss some examples of this in my written
    statement. The spotty record in veterans services is more
    shameful when one considers that the impact of military service
    on one's family has gone mostly unnoticed by policymakers.
        Is our collective interest better served by amending the
    Constitution to protect a piece of cloth than by helping
    spouses understand and cope with the consequences of their
    loved ones' horrible and still very real combat experiences?
    Are we turn to turn our backs on the needs of children whose
    lives have been negatively affected by their parents' military
    service? Is our obligation to protect the flag greater, more
    righteous or more just than our obligation to help veterans and
    their families? I think not.
        Over the years, proponents of this amendment have argued
    that they are not advocating for the passage of this amendment
    over providing adequate support and services for our veterans.
    They say we can do both. I am asking when will we do both. I
    believe that it is time for Congress to pay more attention to
    the voices of ordinary veterans who know firsthand the
    implications of tyranny and denied freedoms. Our service is not
    honored by this onerous encroachment on constitutionally-
    guaranteed freedoms.
        Thank you very much for your patience.
        [The prepared statement of Mr. May appears as a submission
    for the record.]
        Chairman Hatch. Thank you, Professor.
        We will now turn to Professor Richard Parker, who is, of
    course, the Paul W. Williams Professor of Criminal Justice at
    Harvard Law School. We particularly appreciated your help.
        By the way, for everybody here, this amendment does not do
    anything other than give the Congress the power, if it so
    chooses, to prohibit flag desecration. I might also add that I
    presume that it would take 60 votes in the Senate. So it would
    have to be a super-majority vote even if we passed this
    amendment.
        One of the problems is that I think people are so afraid to
    let the American people do this because they know there will be
    overwhelming support for a statute. So my attitude is if the
    American people will do this, we ought to let them have that
    chance, and that is what this amendment is all about. This
    amendment doesn't put anybody in jail. It doesn't do anything
    but give Congress the power to prohibit flag desecration, if it
    so chooses.
        Again, I will just reemphasize that five Justices on the
    Supreme Court overturned 49 States, and I am very concerned
    about that that we have the Constitution constantly amended by
    five Justices. I would give the people a chance to go with
    this.
        Dr. Parker, let's turn to you.

      STATEMENT OF RICHARD D. PARKER, WILLIAMS PROFESSOR OF LAW,
              HARVARD LAW SCHOOL, CAMBRIDGE, MASSACHUSETTS

        Mr. Parker. Thanks very much, Mr. Chairman. I am grateful
    to you and to the Committee for inviting me to be here today.
        I have been involved in the discussion of this issue for 10
    years now and what I will do right now is try to boil down my
    experience of the discussion into six points which it seems to
    me clarify what is at stake, and might clear up, as well, a
    great deal of confusion that has arisen in the past and to some
    extent today as well.
        Point number one: The flag does not represent simply one
    point of view in competition with other points of view. That
    was the central mistake that the majority of the Supreme Court
    made in Johnson and Eichman in 1989 and 1990. The flag does not
    stand for any particular policy or any administration, or for
    the Government, or even for the armed services. It transcends,
    and at the same time underlies debates among differing points
    of view, differing policies, differing contestants for
    governmental power. It represents, as you said, Mr. Chairman,
    the Nation, the sovereign people, the idea of national
    community in which all citizens are members. That is point
    number one.
        Number two, the flag and what it represents is a national
    resource of special importance to the summoning of political
    energy required for popular self-government, in general, and in
    particular it is a resource with special importance for the
    robustness of the freedom of speech.
        It is even more especially important for the robust
    enjoyment of freedom of speech on the part of minorities and
    dissenters. Why is that? If you fly the flag, if you carry the
    flag as a speaker, particularly a member of a minority or a
    dissenter, you establish your membership in the political
    community and your right to get a hearing from other citizens.
    That is why the civil rights movement, in which I took part,
    prominently displayed the American flag at so many of its well-
    known demonstrations.
        Thus, this amendment does not narrow freedom of speech, as
    I believe Senator Durbin suggested. Quite the opposite, it
    enhances the freedom of speech by strengthening its foundation.
    That is point number two.
        Number three, this National resource, like any other,
    should be protected. The fact that it is a symbolic resource
    makes no difference. If anything, its nature as a symbolic
    resource renders it more easily eroded and more in need of
    protection than a physical resource like the Grand Canyon or a
    particular building.
        It should be protected precisely in order to protect the
    foundation of freedom of speech as a lived experience. Those
    who profess great concern for the freedom of speech should be
    supporters, in other words, of this amendment. And that is
    particularly true since this amendment is limited to physical
    acts, leaving everyone free to say and write and signal
    whatever message they please at any time. That is point number
    three.
        Number four is a point that has been made by the Chairman.
    This amendment, however, does not in and of itself, as you
    said, Senator Hatch, protect the flag. It only empowers
    Congress to protect the flag. Thus, the arguments that come up
    time and again posing a series of hypothetical cases to ask
    whether they would be prohibited by this amendment are
    completely misguided.
        This is not a criminal law being written here. What is at
    stake is the authority of Congress to write a law, and as the
    Chairman pointed out, and as Senator Feinstein, too, I believe,
    pointed out, would involve a great deal of debate and
    adjustment and fine-tuning. It might even require 60 votes.
        Point number five: This amendment does not amend or change
    the Bill of Rights or the First Amendment. This is the most
    troubling red herring that is typically introduced into this
    debate over and over again. It restores the meaning of the
    freedom of speech that was taken for granted for two centuries.
    Those who respect the Constitution, those who go to the
    Archives, as Senator Durbin mentioned, with some awe with
    respect to the Constitution should be supporters of this
    amendment, not opponents.
        The sixth point is that there are other constitutional
    values and principles at stake here, in addition to the
    protection of the freedom of speech by passing this amendment.
    Let me mention two.
        First is the constitutional value more basic than any other
    to our Constitution and our system of Government; that is,
    popular sovereignty. The Constitution begins, as everyone
    knows, ``We, the People.'' If the meaning of the Constitution
    is delegated and if that delegation is taken for granted,
    delegated to judges, the people cease to govern. Popular
    sovereignty is undermined. ``We, the People,'' the first three
    words of the text, become a mockery.
        The second value is the separation of powers. It was the
    assumption of the Framers, as you know, that each branch would
    check the other branch in the Federal Government, especially
    when another branch is seeking to extend its sway in
    substantial ways.
        I think members of this Committee surely are familiar with
    what has happened with respect to the judiciary in the last,
    say, 15 years. Compare it with the Warren Court. The Warren
    Court, during its first period from 1953 to 1963, and its
    second period from 1963 to 1969, was a Court whose decisions,
    famous as they have been, were tethered to mainstream opinion
    in the country. It was a Court that acted in a gradualist
    fashion.
        In the last 15 years, that is not the way the majority of
    the U.S. Supreme Court has been behaving, or many other courts.
    They have ceased to be tethered, perhaps even to care, about
    mainstream opinion in the country and they have ceased to
    proceed in a gradualist fashion.
        So it is the responsibility of the Congress under the
    separation of powers to provide a check to the Court, and the
    Article V process is an effective, and indeed the most
    effective way for the Congress to check this new assertion of
    judicial power. It has been done before, most recently with the
    18-year-old vote. It is especially appropriate when an
    amendment has the support of a substantial majority, sustained
    over time, when that amendment defends an established meaning
    of the Constitution, changed by the Justices, and when all the
    amendment does is empower Congress to pass legislation. Those
    four tests are all satisfied here.
        There is no more effective way by which Congress can check
    the Court. I know this Committee spends a great deal of time
    and energy on confirming judges, and when a new Supreme Court
    Justice is nominated, I am sure the Committee will drop
    everything else and devote itself to that.
        But it is a notorious fact that Congress cannot check the
    Court simply through the advise and consent process vis-a-vis
    appointments. The process of constitutional amendment,
    particularly so long as it adheres to the four conditions I
    mentioned, is the most effective way of doing so.
        This is my last point. It might occur to you, what about a
    check on majority power? Isn't our system based on a fear of
    majoritarianism? And I ask you what institution is the most
    majoritarian institution in our Government. In what institution
    does a bare majority of one have the most sway? Not the
    Congress; certainly not the Senate, given its procedural rules;
    not the House. It is the Supreme Court that is the most
    majoritarian institution in our Government. One vote decides
    issues and can change the established meaning of the
    Constitution. Thus, we need the Congress to step in now and
    check that form of majority power.
        [The prepared statement of Mr. Parker appears as a
    submission for the record.]
        Chairman Hatch. Well, my thanks to each of you because this
    is an important issue and can't be trivialized, no matter
    whether you are for or against it. It is a constitutional
    amendment and it is important, but a couple of things are in
    order, I think.
        Number one, for the veterans who have heard criticisms of
    this administration both from the dais and from witnesses, let
    me just point out the budget provides $70.4 billion in fiscal
    year 2005 for veterans programs. Now, that is an increase of $9
    billion, or 15 percent. For discretionary spending alone, the
    budget assumes $30.5 billion, and that is an increase of $1.3
    billion, or 4.4 percent, over last year. In light of a freeze
    on most non-homeland security discretionary spending, this is a
    significant increase.
        The budget also proposes $29.1 billion for veterans medical
    care. It is never enough, I have to admit, and I wish we could
    do better. But that is an increase of $1.4 billion, or 5
    percent, over 2004. It is important to note that spending for
    veterans medical care has doubled since 1993 and it has
    increased 42 percent since President Bush submitted his first
    budget in fiscal year 2001. That is a heck of a rise.
        Now, it isn't enough, I admit, but we are constrained here
    by the fact that we don't have an awful lot of money to spend,
    especially discretionary-wise. In the past three fiscal years,
    we have seen unprecedented increases in veterans medical care
    and other funding.
        In the following fiscal years, Congress has provided the
    following increases in VA's medical budget: $1.1 billion in
    fiscal year 2002, a 5.4-percent increase; $2.4 billion in
    fiscal year 2003, an 11.3-percent increase; and $2.9 billion in
    fiscal year 2004, a 12.2-percent increase.
        These increases stand in stark contrast to requests by the
    Clinton administration. In fiscal years 1998 and 1999, the
    Clinton administration proposed that the Veterans Health
    Administration budget be cut by $83.3 million and $16.3
    million, respectively. In fiscal year 2000, the Clinton
    administration proposed that veterans medical care funding be
    frozen in place. Despite those proposed reductions, Congress
    increased it, and I was part of that.
        Now, all I can say is that I don't think we should use this
    particular hearing to try to score political points one way or
    the other on veterans care. In all honesty, I wish we could do
    more, and I am one who I believe has always voted for more. We
    will never be able to do enough, it seems to me, to pay for the
    care our veterans who have given so much for our country.
        But there is real effort to try and do what is right here
    and I don't think the administration should be blasted when
    they have participated in these kinds of increases. It has
    mainly been Congress that is doing this, but the administration
    certainly has signed the bills.
        Mr. Korb. Senator, could I say something about that because
    I think this is a very critical issue?
        Chairman Hatch. Let me just say I don't want to get into
    that here because that is not what we are discussing. But I
    would be happy to have you submit to the record anything that
    would help me to understand it better because if I am wrong on
    these figures, I would like to know, but I don't believe I am.
        But the point is that we should do more. I wish we could do
    more. You made a good point, but to try to score political
    points on it, I think, is the wrong thing to do. There isn't
    anybody in the Senate who doesn't want to help veterans, not
    anybody. But we are all faced with a budget that is out of
    control, and one of the big reasons it is out of control is
    because of our homeland security concerns and anti-terrorism
    concerns. Those are big reasons.
        But there is another reason. No matter what we do, there
    are liberals in the United States Senate who want to spend
    much, much more, even though we can't do it within any kind of
    decent budget restraints. Those of us who are more conservative
    in outlook are spending a lot more than we should and this is
    something we have got to get control over.
        So we can all come in and ask for more and more, which
    everybody does in our society. All I can say is we are in a
    budget battle right now on the floor trying to keep the budget
    under control, and we will have amendment after amendment to
    spend and spend and spend. Last year, it was over $1 trillion
    if we hadn't had over 50 points of order that stopped that.
    There were some heroic figures on the floor who had to stand
    there and take abuse because they weren't spending enough.
        We will never spend enough for some of the people in this
    body, especially the liberal community. No matter what you do,
    they will always want to spend more. But I just wanted to make
    it clear that there has been a real effort to try and treat
    veterans fairly.
        Now, let me just say this. One of the things that really
    has bothered me through the years is how so many of these
    people have played politics with this issue by saying, oh, we
    shouldn't amend the First Amendment; this will be the first
    time we are ever doing that. Well, it was the Court that did
    that, and I think, General Brady, you made a very good
    statement on that.
        But then they turn right around and vote for a statute to
    forbid desecration of the American flag. Well, now, why would
    they vote for a statute when they wouldn't vote for a
    constitutional amendment? They did it because they know the
    statute isn't going to make it, that the Supreme Court isn't
    going to allow a statute here, that it is going to have to be a
    constitutional amendment.
        But why, if they are sincere in their fighting against
    constitutional amendments, would they vote for a statute
    against flag desecration? It seems to be me it is inconsistent,
    and I think anybody who thinks straight knows it is
    inconsistent. It is a phony political approach to try and
    always bring up a statute which they know can't make it through
    the Supreme Court.
        Now, let me just ask you this, General Brady and Professor
    Parker. Some opponents of the flag amendment have stated that
    passing the amendment would make our country like the
    oppressive regimes in Cuba, Nazi Germany or the former Soviet
    Union. I would like you both to respond to that argument.
        Mr. Brady. Yes, sir, I heard that and I mentioned it, I
    think, briefly in my statement. It is incomprehensible for us
    to hear people in America compare a protected American flag,
    protected according to the will of the people, to a flag that
    is protected according to the will of a dictator. There is a
    great difference.
        Our flag was designed by the father of our country,
    protected by the people. The swastika and the hammer and sickle
    were protected by despots, by dictators, by cold-blooded
    murderers. There is a whole lot of difference between our flag
    that stands for all the wonderful things it stands for and the
    Nazi flag that stands for the worst things of human nature.
        Chairman Hatch. Professor Parker.
        Mr. Parker. I would, of course, agree with the General. The
    argument, to be blunt, is absurd. It is not even interesting,
    the argument to which you refer. What is interesting to me is
    why it is made so often. And not being in elective politics, I
    am probably not the best person to judge that.
        Mr. May. Mr. Chairman, I would like to offer a comment that
    might clarify why such statements as that sometimes get made.
    On page 13 of Mr. Brady's written testimony, he says the will
    of the majority should define patriotism; the will of the
    majority should define patriotism. He goes on to ask, what are
    laws for, if not to force the unpatriotic to act patriotic?
        Now, to me, this smacks of sort of dictatorship, or at
    least an espousal of a very clear and directed set of
    expectations that people should follow. That is offered as part
    of his argument in support of the proposed amendment, and I
    think it is that very kind of rhetoric, and the possibility of
    what could result, that causes many of us to feel that the
    proposed amendment is a great departure from the beliefs and
    the values and the history of this country that we who fought
    to protect and serve. That is scary.
        I do not draw comfort from Professor Parker's argument that
    we who might have concerns--and we all should--about freedoms
    that we enjoy under the Constitution should be rushing to
    support the amendment because it strengthens the foundation of
    the symbol that the flag represents. I think this kind of
    rhetoric undermines all of that and suggests a very heavy-
    handed approach to defining, implementing and enforcing
    consequences for departure from somebody's understanding of
    patriotism.
        Chairman Hatch. I don't agree with that because basically
    what the General is arguing for is for a right of Congress to
    decide what to do in this matter and to let the people decide
    this, not five Justices on the Supreme Court. I think there is
    a real, real significant difference.
        Now, you might take issue with some of the language,
    General, if you would care to respond.
        Mr. Brady. Yes. You have taken that, of course, out of
    context, but I do believe that patriotism should be defined by
    the majority of the people and not the majority on a court.
        Chairman Hatch. That is a good point.
        Mr. Brady. I do believe that patriotism is not just love of
    country. A patriot is someone who will support and defend a
    country. That is the definition; that is the definitive part of
    it. And we certainly do force patriotism when we force our
    people to join the services, when we force our people to ration
    in time of war. Many things that are patriotic, causing people
    to support and defend the country, are, in fact, by law,
    forced.
        So you would have to go through the whole thing there,
    Professor May, to get the full intent of what I am saying about
    patriotism. But the key point is that the majority must rule,
    the majority must determine what is patriotic, certainly not
    the majority on a court.
        Chairman Hatch. My time is just about up.
        Professor Parker, let me ask one other question of you. One
    of the most commonly used arguments against a flag amendment--
    and I am getting kind of sick of it--is that the Constitution
    is precious and should not be amended without a great deal of
    thought and good reason. In all honesty, I am very sympathetic
    with that view, and I believe personally that the Constitution
    is an inspired document. But I get a little tired of that being
    a major argument here.
        Would you please explain why people who share my belief
    that we must protect the Constitution should support an anti-
    flag desecration amendment?
        Mr. Parker. Let me mention just two reasons, first, because
    the Court--and this is not the first time it has happened--may
    radically turn upside down the meaning of the precious
    Constitution. Thus, to defend that Constitution requires
    checking the Court's power.
        Secondly, one of the most precious parts of the
    Constitution, its very keystone, is Article V involving
    amendment. It is that article that makes operational the
    principle of popular sovereignty that we, the people, rule in
    this country.
        Chairman Hatch. Well, thank you. My time is up.
        Senator Durbin, we will turn to you.
        Senator Durbin. Thank you, Mr. Chairman. Mr. Chairman, the
    reason we are holding this hearing today is because so many
    veterans are in Washington, and that is an important reason.
    And I don't think it is unreasonably for Mr. Korb or others to
    raise veterans issues while our veterans have gathered here.
        I oppose this amendment. When I meet with my veterans, some
    of them will say, Senator, we disagree with you on that. That
    is fair. That is what our system of Government is all about.
    But those of us who have raised other veterans issues hope that
    our veterans friends won't stop the conversation with this
    amendment.
        I have yet to find a single veterans group come into my
    office and say, listen, we are just doing fine in funding
    veterans medical care, we have really done a great job, thank
    you very much, Senator--not a single one. Everyone comes in and
    says this isn't working, you have got to do more, you promised
    you would do more when we promised we would put our lives on
    the line.
        So last night, when we had an amendment to put $2.7 billion
    back into veterans care and veterans hospitals, and paid for it
    by cutting the tax break for the wealthiest people in America
    from $140,000 a year to $112,000 a year so that money could go
    for veterans, it was defeated.
        I hope that you will take a look at the roll call, and the
    Senators who come in to talk to you about how much they love
    the flag amendment--ask them why they voted against you last
    night. That is a reasonable request. You want to put me on the
    spot on this amendment? Fine. Put them on the spot for not
    voting for you when it comes to veterans health care. That is
    not unreasonable, and I think that is what Mr. Korb is saying.
        There have been plenty of opportunities for those who say
    they love veterans and their issues to stand up for you, and
    time and time again they have not done it and they didn't do it
    last night.
        And I will add one to your list, Mr. Korb. I passed the
    reserve security amendment on the floor of the Senate, which
    said that when it came to Guard and Reserve who are Federal
    employees, when they are activated--and now we know those
    activations are going for a longer and longer period of time--
    the Federal Government will make good on their salaries so that
    they won't face a financial hardship.
        State and local governments and private businesses do that
    across America. The Federal Government does not. Ten percent of
    the Guard and Reserve are Federal employees. They are now over
    in Iraq and Afghanistan and all around the world, and many of
    them suffering serious economic hardship. It sounds like a
    reasonable amendment. Who could vote against that, that the
    Federal Government would stand behind activated Guard and
    Reserve?
        I passed it on the floor 96 to 3. Pretty good. Then it got
    in the conference Committee and, with one exception, was
    defeated on a partisan roll call. They stripped it out of the
    bill and that protection is not there today. Can I ask you to
    please add to the veterans agenda, Guard and Reserve who are
    serving who are Federal Government employees? I don't think
    these are unreasonable issues, since the veterans are in town
    and care about the flag amendment, that they also care about
    other things. I hope they do.
        I think frankly, too, to argue that the statute and the
    constitutional amendment are basically the same thing is just
    plain wrong. Let me tell you, I hope that I have developed some
    skill at writing legislation. But when it gets right down to
    it, I think the bottom line is we make mistakes. We pass
    statutes that need to be changed, and that is the way it should
    be. We should change them to make them right.
        But when you put the language in the Constitution of the
    United States, it really reaches a different level. This isn't
    just another law. It is the highest law of the land, and we
    ought to take care and make certain that we do it as the last
    possible resort.
        I would like maybe to ask Professor Parker or those who
    would like to comment on it--Professor, we have a statute which
    says that--and this is Title IV, Chapter 1, section 8--``The
    flag should never have placed upon it, nor on any part of it,
    nor attached to it, any mark, insignia, letter, word, figure,
    design, picture or drawing of any nature.''
        Are you familiar with that, Mr. Parker?
        Mr. Parker. Is that part of the flag code?
        Senator Durbin. Yes.
        Mr. Parker. It is much, much broader than the Flag
    Protection Act of 1989 that Senator Feinstein was discussing
    earlier.
        Senator Durbin. It certainly is.
        Mr. Parker. I agree with Mr. Bryant that the Act passed in
    the Senate, 91 to 9, in 1989 presents no problem. If the law
    you are describing carried with it criminal penalties, then I
    think there would be constitutional issues, although I haven't
    studied the precise language.
        Senator Durbin. Well, here is what I am trying to get to.
    We have put fairly general language in our statutes and even in
    this proposed constitutional amendment about what we are trying
    to do. Our statute said, ``knowingly mutilate, deface,
    physically defile, burn, maintain on the floor or ground, or
    tramples upon.'' That was in the statute.
        Mr. Parker. Right.
        Senator Durbin. Now, the words ``mutilate, deface,
    physically defile'' are up for some interpretation. The flag
    code said it would include, as I have just read, ``mark,
    insignia, letter, word, figure, design, picture, or drawing of
    any nature.''
        Here is the point I am trying to get to. If I take a flag
    and I spray-paint on that flag ``death to America,'' have I
    defiled that flag?
        Mr. Parker. Under the Flag Protection Act of 1989?
        Senator Durbin. Just your opinion.
        Mr. Parker. I think it is certainly possible, yes.
        Senator Durbin. Now, let me ask you this question, if I
    might. If I take the spray paint and instead of putting ``death
    to America,'' I put ``God bless America,'' is that defiling the
    flag?
        Mr. Parker. Sure, although, you know, as--Senator, I am
    sorry. I don't know if you are a lawyer or not. You must be;
    you are on the Committee.
        Senator Durbin. Not necessarily every member is a lawyer. I
    happen to be a recovering one.
        Mr. Parker. So then as you know all too well, what lawyers
    is do is work with the ambiguity of words in the laws.
        Senator Durbin. I am trying to take this to a point, and
    you are consistent. If I spray-paint ``death to America,'' it
    defiles the flag. If I spray-paint ``God bless America,'' it
    defiles the flag. What if I spray-paint my name on the flag?
        Mr. Parker. Again, I was going to point out that in
    criminal law the intent is always important, as you know. The
    mens rea requirement is virtually considered essential to
    criminal law. So you would look at the intent, as we do under
    any criminal law.
        Senator Durbin. But isn't it a fact that is where the
    Supreme Court said we have got a problem here, trying to figure
    out what the intent in the mind was of the person?
        Mr. Parker. But then the whole criminal law would be--
        Senator Durbin. Well, let me tell you how far this goes. If
    you raise a question of whether my spray-painting my name on
    the American flag is defiling the flag, we have a photo here of
    the President of the United States signing his name to a flag.
    Do I think he defiled the flag? No, I don't. But, by
    definition, now we have got to take this to a prosecutor.
        Do you see how, when we have to delve into the mind, how
    far you are going and what you mean as to whether we are
    defiling the flag, we start getting into questions of
    interpretation here? And my question to you and to all the
    panel is do you really want to put this in the Constitution? Do
    you want to use words in the Constitution that are going to
    lead us into all of these questions?
        There are many patriotic people that are sitting in this
    audience wearing neckties made out of American flags, some
    wearing sweaters with American flags. I think you are just as
    patriotic as the next person, maybe more so. But is that
    defiling it to use it in a commercial way?
        Mr. Parker. It all would depend, as in any criminal law, on
    the intent. In the Act of 1989, the intent requirement was
    ``knowingly.'' When someone does x, y or z vis-a-vis a flag, is
    he or she knowingly mutilating it or defacing it, or does he or
    she do it with a radically different intent? That is just what
    law is all about. There is no avoiding that.
        Senator Durbin. Well, I understand that, but the point I am
    trying to make to you is people think this is absolutely cut
    and dried; this is so easy. It isn't. There are areas here
    which are very difficult, and that is why many of us have some
    reluctance to say let's change the Bill of Rights, let's put an
    exception in the Bill of Rights, and we think that we can take
    a roller to this Rembrandt and come up with a much more
    beautiful painting. I am not one of them.
        I would just say, in closing, Mr. Chairman--and I thank you
    for this--it is painful as an American sometimes to stand up
    for the rights of minorities and the right of dissent. They say
    things and do things which I despise. Sadly, that is one of the
    responsibilities of citizenship in this country to let people
    say things which we despise and know that they have the freedom
    to say them, realizing that we have enough strength in our
    values and our country to withstand any such personal assault
    on what we consider to be the values of our country. I think
    that is what is at stake here.
        Thank you.
        Chairman Hatch. Well, thank you, Senator.
        I just want to say to everybody here that there are lots of
    speeches that are outlawed by the law. This is a very important
    issue and there are two good sides to this issue. Now, I think
    one is far better than the other, no question about it, but
    there are legitimate arguments on both sides.
        The vast majority of the American people would like to see
    this flag amendment passed. And it is a very simple thing. It
    just gives Congress the right to do something about it, if
    Congress so chooses, and it gives the American people the right
    to pick who the Congress happens to be at the time. It seems to
    me that is pretty democratic.
        Naturally, as the author of the amendment, I am going to
    challenge you folks who want the amendment to get out there and
    work for it. We have always had over 60 votes for this
    amendment in the Senate, but we need 67. We have always lost by
    2, 3 or 4 votes. We have a basically different Senate right now
    than we did the last time we tried to pass this amendment.
        I, for one, hope that you will really get there and really
    work very, very hard and get this amendment passed. Then I
    think Professor May, Mr. Korb and others who are opponents,
    Senator Durbin and others, can do the democratically
    politically right thing that they think is right and fight
    against a statute that may be passed or may not be passed. I
    think that statute would go through the House like blazes. In
    the Senate, it probably would require 60 votes.
        So it is not going to be an easy thing even if we pass this
    amendment. However, I think we would have the 60 votes. I think
    that is what the fear is, is that we will pass this amendment
    that gives the Congress the right, if it so chooses, to protect
    the flag, which was protected for almost 200 years before the
    Johnson case and the Eichman case and changed by the simple
    vote of five Justices on the Supreme Court.
        The fact of the matter is that the people ought to have a
    say on this, and I think one of the greatest debates that will
    ever occur will be if this amendment will pass the Senate and
    the House and be submitted to the States. Everybody in this
    country will be able to hear the persuasive arguments on both
    sides and make up their own minds.
        I am not quite sure what would happen. I believe 38 States
    would ratify this amendment within a year. But I could be
    wrong. I don't think so, but I could be wrong. But why not give
    the American people a chance to say it, rather than five
    Justices on the Supreme Court?
        Somebody has brought up the marriage problem. Well, we had
    4 justices, 4 to 3, in Massachusetts, determining under the
    Full Faith and Credit Clause how marriage should be recognized
    in all 50 States. Now, some think that we might be able to
    uphold and maintain the Defense of Marriage Act, which was
    adopted by at least 38 States--I believe 39 States. But there
    is a real question constitutionally whether that would be
    upheld under the Full Faith and Credit Clause. Well, the fact
    of the matter is that we are going to have to face up to that
    problem as to what we do about that. But four activist judges
    up on the Massachusetts Supreme Court are going to impose their
    will upon every State in the Union to recognize Massachusetts
    same-sex marriages, whether the people want to do that or not.
        These are important issues. I agree with Professor Parker
    that it shouldn't be five Justices on the Supreme court or a
    split decision on the court in Massachusetts determining what
    everybody has to adhere to in every State of the Union. That
    ought to be battled out and there ought to be some way that the
    American people can make a decision on this themselves so that
    there won't be the tremendous dislocation of social justice in
    our society that we have had since Roe v. Wade came down on a 7
    to 2 decision, as I recall.
        Now, I don't like judicial activism whether it is from the
    left or from the right. In fact, it is particularly
    reprehensible to me when it comes from the right because I
    think they ought to know better, but it is wrong either way.
    For those who argue that we are going to infringe on the First
    Amendment when, in fact, five Justices have set the tone for
    the whole country, rather than the American people--I think
    that is one of the most specious arguments I have ever heard.
        Well, it is an important amendment. I personally appreciate
    all of you appearing. I respect the right to disagree here, and
    we have had some eloquence on the part of those who are
    opposed, as well as eloquence on the part of those who are in
    favor. I am just asking all of you as the sponsor of the
    amendment to get out there. Let's hustle and let's get this
    done this year, and then we won't have to have another one of
    these hearings, except for the statute. Then we can really have
    a democratic process to determine whether we can pass that
    statute.
        I would put the statement of U.S. Senator John Cornyn, from
    Texas, into the record immediately following the statement of
    Senator Durbin at the front of the hearing.
        With that, I want to thank you all for being here. I
    appreciate the efforts you have put in, and respect each and
    every one of you. For those who are on my side, let's go to
    work.
        With that, we will adjourn until further notice.
        [Whereupon, at 12:45 p.m., the Committee was adjourned.]
        [Questions and answers and submissions for the record
    follow.]

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