[Congressional Record Volume 141, Number 193 (Wednesday, December 6, 1995)]
[Senate]
[Pages S18086-S18087]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




      FLAG DESECRATION CONSTITUTIONAL AMENDMENT--MOTION TO PROCEED

  Mr. DOLE. Mr. President, I now move to proceed to Senate Joint 
Resolution 31 regarding the desecration of the flag.

                             Cloture Motion

  Mr. DOLE. I send a cloture motion to the desk.
  The PRESIDING OFFICER. The clerk will state the motion to invoke 
cloture.
  The assistant legislative clerk read as follows:


                             Cloture Motion

       We, the undersigned Senators, in accordance with the 
     provisions of rule XXII of the Standing Rules of the Senate, 
     do hereby move to bring to a close debate on the motion to 
     proceed to S.J. Res. 31, a joint resolution proposing an 
     amendment to the Constitution of the United States to grant 
     Congress and the States the power to prohibit the physical 
     desecration of the flag of the United States:
         Bob Dole, Orrin Hatch, Conrad Burns, Ben Nighthorse 
           Campbell, Slade Gorton, Craig Thomas, Alan Simpson, 
           Larry Craig, Trent Lott, Connie Mack, Don Nickles, 
           Spencer Abraham, John Ashcroft, John Warner, Chuck 
           Grassley, and Strom Thurmond.

  Mr. DOLE. Mr. President, for the information of all Senators, we have 
been attempting--and have wasted the whole day--to bring up the flag 
amendment. We were precluded from doing that by the efforts of the 
Senator from New Mexico, Senator Bingaman. He has every right to do 
that. I know he is not for the flag amendment, but he indicates he does 
not mind if we vote on it.
  But I wanted to point out that tomorrow is Pearl Harbor day. Tomorrow 
is December 7. On a Sunday morning 54 years ago, more than 2,300 brave 
Americans lost their lives during the raid on the U.S. Pacific Fleet. 
As a testament to their valor, some of the dead are permanently 
entombed in the U.S.S. Arizona, one of the ships sunk during the 
attack.

  As World War II raged on, thousands of other brave American soldiers 
followed their country's flag into battle. The great sacrifices made by 
our fighting men and women during this war and in subsequent 
conflicts--Korea, Vietnam, the Persian Gulf, Somalia--reflect the 
courage and strength of character of the American people.
  Our flag is the unique and beloved symbol of these qualities. 
Representing Americans of every race, creed, and social background, the 
flag is also the one symbol that brings to life the phrase ``E Pluribus 
Unum''--Out of many, one.
  So it would seem to me that as we look back over the history of 
America, one of our most enduring national images is the famous picture 
of six courageous Americans--Sgt. Michael Trank, Cpl. Harlan Block, 
Pfc. Hamilton Hayes, Pfc. Rene Arthur Gagnon, Pfc. Franklin Runyon, and 
Pharmacist's Mate John Henry Bradley--who risked their lives to raise 
Old Glory at the top of Iwo Jima's Mount Suribachi.
  These men were not constitutional scholars. They were not legal 
experts. They were young enlisted men, like so many of the 6,000 
American soldiers who gave their lives to their country during the 
deadly ascent up that hill.
  Because of the sacrifices of these men and countless thousands like 
them, I support this amendment. Because of the flag's unique status as 
the symbol of the American spirit and experience, I believe it deserves 
constitutional protection.


                      amending the bill of rights

  Now, there are those who charge the supporters of the flag amendment 
with attempting to amend the Bill of Rights. I strongly disagree with 
this characterization.
  It is the Supreme Court--and more precisely five Justices on the 
court--who amended the bill rights when they concluded in the Texas 
versus Johnson decision that the Act of flag-burning was 
constitutionally-protected speech. This misguided ruling effectively 
overturned 48 State statutes and a Federal law proscribing flag 
desecration. Most of these statutes had been on the books for decades, 
without threatening any of our freedoms, including our freedom of 
speech guaranteed by the first amendment.

  And, after all, the first amendment is not absolute. One cannot use 
libel to convey an opinion and claim first amendment protection. 
Obscenity, and fighting words, and yelling fire in a crowded theater, 
all fall outside the first amendment's free-speech guarantee.
  In fact, even some of the strongest supporters of the first amendment 
never imagined that the act--the act--of flag-burning would merit 
constitutional protection.
  As Justice Hugo Black, considered by many legal experts to be a 
first-amendment absolutist, once put it: ``It passes my belief that 
anything in the Federal Constitution bars a State from making the 
deliberate burning of the American flag an offense.'' Or as former 
Chief Justice Earl Warren explained: ``I believe that the States and 
the Federal Government do have the power to protect the flag from acts 
of desecration and disgrace * * *''
  So, Mr. President, it's time for a little reality check: We can pass 
laws making it illegal to destroy U.S. currency, or deface your own 
mailbox, or even rip the warranty label off your own bedroom mattress. 
But, according to the Supreme Court, if you want to burn our Nation's 
most cherished symbol, the flag, just go right ahead.
  And that is why we need a flag amendment: not to amend the Bill of 
Rights, not to change the first amendment, but to correct the Supreme 
Court's own red-white-and-blue blunder.
  Let me make another point: The Framers of the Constitution 
intentionally made the amendment process a difficult one, requiring the 
assent of two-thirds of each House of Congress and three-fourths of the 
State legislatures before an amendment's ratification. These sensible 
hurdles were designed to protect the Constitution from ill-conceived 
and frivolous changes. But once an amendment has been ratified, 
clearing the high hurdles built into the amendment process itself, the 
American people have spoken.


                        opening a pandora's box

  Some of those who oppose the flag amendment also claim that ratifying 
it will open a Pandora's Box--that supporters of other national 
symbols, no different from the flag, will clamor for similar protection 
from desecration.

  I reject this argument because the flag is unique.
  Do we pledge allegiance to the Constitution, or to the Presidential 
seal, or to any other national symbol? No.
  Flag Day, June 14, is a national holiday, but do we have a national 
holiday honoring the Constitution, or the Presidential seal, or any 
other national symbol? No.
  The ``Star Spangled Banner,'' our national anthem, honors the 
resiliency of Old Glory. But does our national anthem honor the 
Constitution, or the Presidential seal, or any other national symbol? 
No, it does not.

[[Page S 18087]]

  And 48 States and the United States have enacted statutes prohibiting 
the desecration of the flag. Have the States and Congress passed laws 
prohibiting the desecration of the Constitution, or the Presidential 
seal, or any other national symbol? The answer, of course, is ``no.''
  So, as you can see, the flag stands alone. It stands alone as the 
unique symbol of our ideals, our hopes, our aspirations as a Nation. 
And that is why I am proud to join today with the citizens flag 
alliance, the American Legion, and 113 other civic and patriotic 
organizations representing millions of Americans across this country 
who support this amendment.


                          ``banner yet waves''

  Mr. President, I will conclude now with a few words from an article 
entitled, ``The Banner Yet Waves,'' written by the editors of the 
Reader's Digest.
  I read these words during the last debate on the flag amendment, back 
in 1989, and I want to share them once again with my colleagues. The 
words continue to ring true today. I quote:

       While Americans know that behind this rectangle of cloth 
     there is blood and great sacrifice, there is also behind it 
     an idea that redefined once and forever the meaning of hope 
     and freedom. Lawyers and justices may debate the act of flag-
     burning as freedom of expression. But a larger point is 
     inarguable: When someone dishonors or desecrates the banner, 
     it deeply offends, because the flag says all that needs to be 
     said about things worth preserving, loving defending, dying 
     for.

  Mr. President, that is what this debate is all about. It is not about 
making fine legal distinctions or trying to prove who is the best 
constitutional scholar. It is about protecting that which is sacred to 
us as citizens of this great country.
  Amidst the rich diversity that is America, we must cherish the 
principles and ideals that bind us together as one people, one Nation, 
and for which thousands of brave Americans have given their lives. As 
the unique symbol of these principles and ideals, the flag must receive 
the constitutional protection it so richly deserves.
  Mr. President, I regret that we are now in a position of having to 
obtain cloture before we can even consider this amendment. I hope that 
the Senator from New Mexico, who, as I understand, opposes the flag 
amendment, would find some other way to distract us from what I think 
is a very important amendment. I know he is concerned about 
ambassadors. I know he is concerned about treaties. But I can tell him, 
as I indicated this morning, this Senator is, too. I have tried almost 
every day to bring this matter to some resolution. We think we are 
very, very close. And I see no reason to hold up this particular 
constitutional amendment, Senate Joint Resolution 31, in an effort to 
become involved in a process that has been going on for weeks and in 
which the Senator from New Mexico, as far as I know, has not been 
involved at all. So I have no other course than to hold up other 
nominations. If he wants to play this game--we cannot bring up bills; 
we cannot determine what the legislative agenda is going to be--if any 
Senator can stand up and say I will determine what we will bring up to 
the floor, if the leaders are powerless, then we have to resort to 
whatever means we have. In this case, all we can do is file cloture, 
and we will obtain cloture on Friday morning because I know more than 
60 Members will support cloture.

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