[Congressional Record Volume 141, Number 173 (Friday, November 3, 1995)]
[Senate]
[Page S16676]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




        FLAG-DESECRATION AMENDMENT COULD MAKE MATTERS FAR WORSE

 Mr. SIMON. Mr. President, George Anastaplo, who teaches law at 
the Loyola University of Chicago, is a longtime battler for first 
amendment rights. Recently, he had an item in the Chicago Sun-Times 
about the flag amendment to the Constitution that we will be 
confronting before too long.
  One of the points he mentions is that the amendment in the 
Constitution would elevate the flag above the Constitution. It does 
strike me as ironic that flag desecration would be enshrined in the 
Constitution, while if you burn the Constitution, nothing happens. 
Should we then have another amendment for that? And perhaps another 
amendment for anyone who would burn the Bible? Where does this stop?
  I also have noted flags made into shirts and even pants. I confess, I 
find this offensive, but I don't think we need to amend the 
Constitution because of offensive conduct.
  I ask that the George Anastaplo item be printed in the Record.

              [From the Chicago Sun-Times, Sept. 11, 1995]

        Flag-Desecration Amendment Could Make Matters Far Worse

                         (By George Anastaplo)

       The occasional flag-burning display permitted during the 
     last decade by the U.S. Supreme Court is generally offensive. 
     But the proposed constitutional amendment authorizing the 
     government to punish physical abuse or desecration of the 
     flag may make matters far worse, however patriotic the 
     motives of the amendment's sponsors.
       One implication of such an amendment is that all other 
     forms of desecration in this country would be thereafter 
     considered beyond government supervision. Also, the flag 
     would be elevated above the Constitution, even though that 
     document alone is granted special status in the Constitution. 
     (Every federal and state officer of government in this 
     country is required to take an oath to support the 
     Constitution of the United States.)
       A likely effect of legislation grounded in the proposed 
     flag-desecration amendment would be to increase the number of 
     publicized flag-burnings in this country. Those impassioned 
     flag-burners who want to provoke the authorities to act 
     against them are protected, and in effect discouraged, these 
     days by Supreme Court rulings.
       Routine abuses of the flag will continue, no matter what 
     the Constitution and laws happen to say. Most of these 
     abuses, keyed to commercial exploitation, have always been 
     ignored by a public that is aroused only by those abuses that 
     take the form of hostile flag burnings. Highly selective 
     official enforcement of flag-desecration laws, even if a 
     constitutional amendment should be ratified, would continue 
     to raise First Amendment issues.
       The proposed flag-desecration amendment is but the latest 
     of a series of exercises in constitutional frivolity that 
     have diverted recent Congresses.

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