[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
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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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