[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



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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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