[Congressional Record Volume 141, Number 195 (Friday, December 8, 1995)]
[Senate]
[Pages S18253-S18262]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




               FLAG DESECRATION CONSTITUTIONAL AMENDMENT

  The PRESIDENT pro tempore. Under the previous order, the Senate will 
now proceed to the consideration of Senate Joint Resolution 31, which 
the clerk will report.
  The legislative clerk read as follows:

       A joint resolution (S.J. Res. 31) 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.

  The Senate proceeded to consideration of the joint resolution.
  Mr. HATCH. Mr. President, I suggest the absence of a quorum.
  The PRESIDING OFFICER (Mr. DeWINE). The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. HATCH. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. HATCH. Mr. President, in listening to the debate on the flag 
amendment on Wednesday and some of the remarks of some of my colleagues 
here on the floor, my reaction with respect to some of their arguments 
and some of the arguments of the opponents of the flag amendment comes 
down to, there they go again. The same tired, old, worn out arguments, 
again and again.
  One of my colleagues from Arkansas says we are here because of 
``pure, sheer politics.'' Evidently, some opponents of the amendment 
believe there is only one side to this argument, and everybody else 
must be playing politics. Tell that to Rose Lee, a Gold Star Wife and 
past president of the Gold Star Wives of America.
  She testified in support of this constitutional amendment to prevent 
desecration of the American flag, our national symbol. She testified in 
support of this amendment on June 6, 1995, before the Constitution 
Subcommittee, and brought with her the flag that had draped her 
husband's coffin. She said:

       It's not fair and it's not right that flags like this flag, 
     handed to me by an honor guard 23 years ago, can be legally 
     burned by someone in this country. It is a dishonor to our 
     husbands and an insult to their widows to allow this flag to 
     be legally burned.

  Go tell Rose Lee she supports the flag protection amendment out of 
pure, sheer politics.
  Go tell the members of the American Legion who have been visiting our 
offices. Go tell our colleague, Senator Heflin, a Silver Star winner 
from World War II, that he is playing politics. Tell the Senate 
Democratic whip, Senator Ford, that he is playing politics by 
cosponsoring and supporting this amendment, a man who has suffered a 
lot for this country. Tell the Democratic leader of the other body, 
Congressman Richard Gephardt, and 92 other House Democrats that they 
played politics when they voted for this amendment.
  As for the number of flag desecrations--again, my friend from 
Arkansas was wrong. He said there were none this year. In fact, there 
have been published reports of at least 20 American flags destroyed at 
a cemetery in Bloomington, IN, alone. They were cut or ripped from 
flagpoles and burned. These desecrations were also reported on local 
television. 

[[Page S 18254]]

  In July of this year, according to USA Today, a flag was defaced with 
obscene messages about President Clinton and Speaker Gingrich in New 
Hampshire. Are there not countless ways of expressing these views 
without defacing the flag?
  In June, a flag was burned in Hays, KS. Just a short time ago, I saw 
a news clip about a motorist at a gas station using an American flag to 
wipe the car's dipstick. A veteran--a veteran-- called it to the 
police's attention but, of course, the individual cannot be prosecuted 
today for that desecration of the flag. He can keep using it as he has, 
or perhaps he will next use it to wash his car.
  My friend from Arkansas raised a concern about a person being 
punished for refusing to salute or honor the flag. No law enacted under 
the flag amendment can compel anyone to salute or honor the flag, to 
say nice things about the flag, or otherwise compel anyone to respect 
the flag. There is an obvious difference between prohibiting physical 
desecration of the American flag, and compelling someone to express 
respect for it. So it is totally irrelevant, in this debate, to talk 
about punishment for failing to respect or salute the flag or pledge 
allegiance to it. The pending amendment simply does not authorize such 
punishment. Nor does it authorize punishment for saying critical things 
about the flag, or anything else.
  Some of my friends who have spoken here also drew attention to a 
chart with various flags on it from places like Nazi Germany, the 
Soviet Union, Cuba, and Iraq, with the American flag in the middle. One 
of my colleagues pointed out that these other countries prohibited flag 
desecration.
  But when opponents of the amendment trot out these comparisons among 
countries and their flag desecration laws, they never really explain 
fully their point. To begin with, the difference between the American 
flag and these other flags is certainly self-evident to all of my 
colleagues and to the American people. And, of course, I know that 
those of my colleagues who think these comparisons are useful, 
recognize the difference between what the American flag represents and 
what Nazi Germany's flag represents.
  So what really is the point of the comparisons of flag desecration 
laws in these countries? Is it that, in some undefined way, there is a 
kind of moral equivalence between Nazi Germany, Iraq, and the United 
States if all three prohibit physical desecration of their flags? That 
is too nonsensical to be the point. Indeed, until 1989, 48 States and 
Congress had outlawed physical desecration of the flag. Did any 
opponent of the amendment feel they were in a police state during that 
time? I do not think anybody did. Did the American people not have 
numerous ways to express themselves without physically desecrating our 
flag? Indeed, as I explained in my opening remarks on Wednesday, 
freedom of speech actually expanded in this country through 1989, even 
as flag protection statutes were being enacted.
  If I told my colleagues that Nazi Germany also had stringent gun 
control laws, do the opponents of the flag protection amendment 
believe, for that reason, America better not adopt a particular gun 
control measure? They did. To use that kind of reasoning, why would 
that not follow?
  If I told the opponents of the flag protection amendment that a 
police state had liberal abortion laws, would that turn them into pro-
lifers in America? Would it turn them into supporters of the Partial-
Birth Abortion Ban Act of 1995?
  So what is the point of comparing whether Nazi Germany, Iraq, and the 
United States protect their respective flags?
  Certainly, it is not to compare those who voted for a measure 
protecting the flag, such as the Biden statute, including the Senator 
from Arkansas and almost every other Senator, with the dictators of 
Nazi Germany and Iraq.
  I was struck by the highlighting of the Nazi flag on the same chart 
as the American flag. It reminded me of another use of these two flags.
  Stephan Ross is a psychologist in Boston, MA. He gave a presentation 
in the Hart Senate Office Building earlier this year. He began by 
displaying a Nazi flag, and told the audience he had lived under that 
flag for several years.
  In 1940, at the age of nine, the Nazis seized him from his home in 
Krasnik, Poland. He was a prisoner for 5 years in 10 Nazi death camps. 
The American army liberated Mr. Ross from Dachau in April 1945. In Mr. 
Ross's words:

       We were nursed for several days by these war-weary, but 
     compassionate men and women until we had enough strength to 
     travel to Munich for additional medical attention.
       As we walked ever so slowly and unsteadily toward our 
     salvation, a young American tank commander--whose name I have 
     never known--jumped off his tank to help us in whatever way 
     he could. When he saw that I was just a young boy, despite my 
     gaunt appearance, he stopped to offer me comfort and 
     compassion. He gave me his own food. He touched my withered 
     body with his hands and his heart. His love instilled in me a 
     will to live, and I fell at his feet and shed my first tears 
     in five years.

  The young American tank commander gave Mr. Ross what he at first 
believed to be a handkerchief. Mr. Ross said:

       It was only later, after he had gone, that I realized that 
     his handkerchief was a small American flag, the first I had 
     ever seen. It became my flag of redemption and freedom. . . .
       Even now, 50 years later, I am overcome with tears and 
     gratitude whenever I see our glorious American flag, because 
     I know what it represents not only to me, but to millions 
     around the world . . . .
       Protest if you wish. Speak loudly, even curse our country 
     and our flag, but please, in the name of all those who died 
     for our freedoms, don't physically harm what is so sacred to 
     me and countless others.

  Go tell Stephen Ross that protecting the American flag from physical 
desecration is in any way like protecting the Nazi flag from such 
desecration, or in any way represents some notion, however small, of 
moral equivalence between Nazi Germany and the United States, or in any 
way puts the United States on some kind of par with Nazi Germany. That 
analogy just will not float.
  Mr. Ross still has the flag the American tank commander gave him in 
1945. Mr. Ross is a supporter of this amendment, and one can read about 
his story on the front page of the July 4, 1995, USA Today.
  Mr. President, some of my other colleagues argue that enactment of 
this flag amendment would be the beginning of a long slide down a 
slippery slope to further restrictions on free speech. Give me a break. 
They even make a thinly veiled comparison between prohibiting physical 
desecration of the American flag with the Chinese Government's 
execution of three dissidents. Give me a break. This argument is 
incredibly overblown. In answer to this, I would like to quote from a 
letter Bruce Fein, an opponent of the amendment who testified against 
the amendment. He wrote to the Judiciary Committee in June of this year 
in response to my questions. He states:

       The proposed amendment is a submicroscopic encroachment on 
     free expression that would leave the U.S. galaxies beyond any 
     other nation in history in tolerating free speech and press. 
     If foreign nations were to emulate the constitutional 
     protection of freedom of expression in the United States even 
     with a flag burning amendment, they would earn glittering 
     accolades in the State Department's annual Human Rights 
     reports and from Amnesty International and Human Rights 
     Watch.

  Mr. President, it is time for us to recognize that the American flag 
is our national symbol; that it has meaning to millions and millions of 
Americans all over this country, many of whom have fought for this 
country, many of whom have suffered as family members who have lost 
somebody who has fought for this country under our flag. About 80 
percent of the American people are for this amendment. The remaining 20 
percent either do not know, or are people who would not be for anything 
that contrasts values.
  Mr. President, all this amendment would do is allow the Congress to 
enact a law prohibiting physical desecration of the American flag. We 
are going to take out of the amendment the three words ``and the 
States,'' so that we will not have 51 different interpretations of what 
flag desecration is. This change will be made at the request of a 
number of Senators who are concerned, as I am, about that possibility. 
At the appropriate time, an amendment to make that change will be 
filed.
  All this amendment does is restore the symbol of our American flag to 
a constitutionally protected status. And it allows the Congress, if it 
chooses to--it does not have to, but if it chooses to--to enact 
implementing legislation to protect the flag. 

[[Page S 18255]]

  There is no one in Congress who is going to go beyond reason in 
protecting the flag. We will still have our emblems on athletic 
equipment. We will still have little flags. We will still be able to 
have scarves and other beautiful and artistic renditions of the flag. 
What we will not have is the ability to physically desecrate the 
American flag.
  All we are asking here is to let the American people decide this. If 
we have enough support, 66 people in favor, we will pass this amendment 
through the Senate. That is, of course, only the beginning of the 
process, because three-quarters of the States will then have to ratify 
this amendment before it becomes the 28th amendment to the 
Constitution. I believe three-quarters of the States will ratify it, 
because almost all of the States have already called for this amendment 
through effective legislative enactment.
  But what will ensue once this amendment passes--something that is 
worth every effort we put forward--is a tremendous debate in our 
country about values, about patriotism, about what is right or wrong 
with America, about things that really will help us to resurrect some 
of the values that have made America the greatest country in the world. 
It will be a debate among the people.
  For those who do not want a constitutional amendment passed, they 
will have a right to go to every one of our 50 States and demand that 
people not allow us to protect the flag from desecration. They will 
have an equal right with anybody else to make their case. We are here 
to make the decision to let that debate over values, over right and 
wrong, over patriotic thoughts and principles ensue. It is worth it.
  I personally resent anybody indicating that this is just politics. I 
have heard some people say, ``Well, if this was a secret ballot, it 
would not pass at all.'' I do not agree with that. I believe there are 
enough people in this body who realize that we are talking about 
something pretty valuable here, something pretty personal, something 
that really makes a difference in all of our lives; our national 
symbol. The symbol that soldiers rally behind, fight under, went up San 
Juan Hill to retrieve. For those of us who have lost loved ones in 
various wars, this particular debate plays an especially significant 
role.
  There are those here who are themselves heroes, and who may disagree, 
and they have a right to do so. I think they do so legitimately in 
their eyes, and certainly sincerely. I respect them and respect their 
viewpoints, just as I hope that those on the other side will respect 
the viewpoints of those of us who believe that this is an important 
thing, that this is a value in America that is important, that ought to 
be upheld.
  In my case, our family has seen suffering. I can remember as a young 
boy playing in the woods down in front of our very, very humble home 
that my dad had built from a burned-out building. In fact, for the 
early years of my life our house was black. I always thought all houses 
were black, or should have been. One side of it had, as I recall, a 
Meadow Gold Dairy sign on the whole side of the house, because he had 
to take that wood from another building. It was either that or a 
Pillsbury Flour sign. I believe it was a Meadow Gold Dairy sign. It was 
one or the other. I always thought that was a pretty nice thing to have 
on our house as a young kid.
  I was down in front of the house playing in the woods, when I heard 
my mother and dad. I could tell there was something wrong. I ran out of 
the woods and ran up to the front porch of our house, this humble 
place, and there was a representative of the military informing my 
folks that my brother, my only remaining brother, who we all loved 
dearly, Jess Hatch, Jess Morlan Hatch, was missing in action. It was a 
sad occasion. My folks were just broken up about it. They loved all 
nine of us kids, two of whom had predeceased Jess, who was missing in 
action.
  When my brother was home, my mother had some beautiful yellow roses 
that she had grown. She really had a green thumb. She could raise 
beautiful flowers. He used to kid her about taking those yellow roses 
and giving them to his girlfriend, or taking the plants and giving them 
to his girlfriend. She always laughed. She knew he would never do it. 
But, for a couple of months after my brother was listed as missing in 
action, my mother received a dozen yellow roses from my brother. She 
believed right up until the day that they found his body and brought 
him back that he was still alive.
  He had flown in that fateful Foggia, Italy mission and helped knock 
out the oil fields that really helped to shorten the war. He flew in a 
B-24 bomber. He was a hero, and one of the few people who ever shot 
down a German jet, which were new planes. I have his Purple Heart in 
our home out in Salt Lake City, as well as a number of his military 
memorabilia. I also have all of his letters to my mom and dad. I have 
read every one of them within this last year, and it was interesting to 
see how he was evolving as a high school graduate to the great person 
that he really was.
  My mom and dad died--my mother last June and my dad 2 years before. 
They would have given their lives to save the American flag. My brother 
did. One of my most prized possessions is the American flag that draped 
my brother's coffin. I have that in my home out at Salt Lake as well, 
along with his medals.
  There have been hundreds of thousands of Americans who died to 
preserve liberty around the world who fought--maybe not for the flag, 
but under the flag--and who have revered the American flag. Who could 
forget the Iwo Jima Monument, commemorating the soldiers who risked 
their lives to see that our Nation's flag was lifted and flown above 
that island, a symbol for all of them.
  You can go through literally thousands of stories on why the flag is 
important. I do not want to make this so emotional, but the fact is 
that it is emotional. I think it is wrong for anybody to come here and 
say that this is just a political exercise. That is not a knock at my 
dear friends who feel that way. I am sure they are sincere, but I think 
they are sincerely wrong.
  Paul was sincere, I guess, when he held the coats of the people who 
stoned the first Christian martyr. He was as sincere as anyone could 
be. He held their coats. He believed in what they were doing. He 
persecuted the saints. But Paul was sincerely wrong, and I believe 
anybody that denigrates the intentions of those who want to preserve 
and protect the flag is, in this case, sincerely wrong.
  I guess what I am saying here is that this is a much more important 
issue than just a political issue. To me, politics does not even enter 
into this. It is an issue of whether we value the values of our 
country, the things that made this country great. It is an issue of 
whether we want to have this debate over values, whether we want to let 
the American people really decide for themselves whether the flag is 
important or whether it is not.
  In a day and age where we seem to be denigrating values all the time, 
why should we not stand up for one of the values that really has helped 
make this country great, that has meant something from the beginning of 
this Nation? Why should we not have that debate? For those who 
disagree, however sincerely their opposition, I invite them to join the 
debate. Prove us wrong, not only here on the floor, but do it, once 
this amendment passes, with the American people. I think they are going 
to find that the vast majority of the American people do not agree with 
them.
  Last but not least, there are those who would argue that this is a 
denigration of the First Amendment, or that nobody has ever amended the 
Bill of Rights. Let me tell you something. The Bill of Rights was no 
sooner passed when the 11th amendment was passed to overcome a faulty 
Supreme Court decision. A number of the other amendments have been 
passed since then to overcome Supreme Court decisions that were wrong. 
It is a legitimate thing.
  Keep in mind that Earl Warren, Abe Fortas, Hugo Black, three of the 
most liberal members ever on the Supreme Court, wrote that they 
believed the flag could be protected. It had nothing to do with first 
amendment rights or freedoms in the sense of denigrating the first 
amendment.
  The fact that in the Johnson case, the Supreme Court alluded to the 
first 

[[Page S 18256]]
amendment, and spoke of the first amendment right of free speech being 
violated, does not make it right. How can anybody say that we are 
trying to stop any person from saying whatever they want to, to 
denigrate the flag. They can denigrate the flag all they want to, with 
all the free speech in the world, and I am certainly going to uphold 
their right to do it.
  What we are against here, and what we need to establish through a 
constitutional amendment, is that this does not involve speech. It 
involves improper and offensive conduct. And that is what Justices 
Warren, Fortas, and Black basically said. This is not a violation of 
first amendment protected free speech. Anybody can speak any way they 
want. Physically desecrating the American flag, however, is a violation 
of the sensitivities and the values of America by means of offensive, 
improper conduct, physically treating our national symbol with 
contempt.
  And even though desecrations of the flag occur more than they should, 
but certainly not in overwhelming numbers, every one of them is 
reported by the media, seen by millions of people.
  So it is a lot bigger issue than some would make it on the floor. I 
have to say, I hope that our colleagues will vote for this amendment. 
It is worthwhile to do it. All we are going to do is give Congress the 
right to define this matter once and for all, and then we are going to 
have a debate in this country about values, one that I think is long 
overdue. I hope that our colleagues will consider that, and I 
personally believe we can pass this amendment, although it is always 
uphill on a constitutional amendment. We understand that, and that we 
may have to keep bringing this amendment forth. Ultimately, however, 
this amendment is going to pass. I guarantee it is going to pass 
someday, even if it does not pass this time. But I personally believe 
we have a good shot at it this time.
  Mr. President, I will yield the floor to my colleague from Wisconsin.
  The PRESIDING OFFICER. The Senator from Wisconsin.
  Mr. FEINGOLD. I thank the Chair.
  I certainly want to join with the chairman's comment that this is a 
worthy debate and one that people should join in if they have either 
strong feelings in favor of or against the constitutional amendment 
regarding flag desecration.
  Mr. President, in response to the chairman's challenge, I would like 
to rise today in opposition, strong opposition, to the proposed 
constitutional amendment relating to the flag.
  I do so with the utmost respect for my colleagues and especially the 
distinguished chairman of the Judiciary Committee and the many 
Americans who support this effort and, of course, in the spirit of my 
own utmost respect for the flag of this country.
  Mr. President, I and all Members of this body share the enormous 
sense of pride that all Americans have when they see the flag in a 
parade or at a ball game or simply hanging from store fronts and 
porches all across their home State. It is one of my favorite sights 
regardless of the occasion. It makes me feel great to be an American 
when I see all those flags.
  I appreciate that this is a deeply emotional issue, and rightly so. 
Like most Americans, I find the act of burning the American flag to be 
abhorrent and join with the millions of Americans who condemn each and 
every act of flag desecration. I understand those who revere our flag 
and seek to hold it out as a special symbol of this Nation. It is a 
very special symbol of our Nation.
  However, I think the key to this whole issue is that we are not a 
nation of symbols--we are a nation of principles. Principles of 
freedom, of opportunity, and liberty. These are the principles that 
frame our history and these are the principles, not the symbols but the 
principles, that define our great Nation. These are the principles 
found in the U.S. Constitution and the Bill of Rights.
  No matter how dearly we all hold the flag, it is these principles we 
must preserve above all else, and it is adherence to these principles 
which forms the basis of my opposition to the proposed constitutional 
amendment.
  As a threshold, Mr. President, let me say that I view any effort, any 
effort at all, to amend the U.S. Constitution as something that we 
should regard with trepidation. The chairman in his comments this 
morning said to those of us who suggest that maybe if we do the flag 
amendment, it might lead to other similar amendments, a slippery slope 
if you will. The chairman kept saying, ``Give me a break. Give me a 
break''--that this was unlikely; that the emotions that fuel this issue 
would not fuel other attempts to amend the Constitution.
  That those emotions would be just as worthy and just as heartfelt and 
patriotic and just as full of values as the emotions that drive this 
effort, I think is clear on its face and that this is a first step that 
could lead to many other steps that could leave the first amendment in 
tatters.
  Since the adoption of the Bill of Rights in 1791, the Constitution 
has been amended on only 17 occasions. Yet, Mr. President, this is the 
third amendment that has been considered by our Judiciary Committee in 
the first term of the 104th Congress alone, with hearings being held on 
what could very well be a fourth constitutional amendment. According to 
the Congressional Research Service, over 115 amendments--115 
amendments--have been introduced thus far just in the 104th Congress--
amendments to the U.S. Constitution.
  While I do not question the sincerity of these efforts, there is much 
to be said for exercising restraint in amending this great document. 
The Constitution has served this Nation well and withstood the test of 
time, and the reason it has withstood the test of time is that we have 
typically, almost always resisted the urge to respond to every 
adversity, be it real or imagined, with that natural instinct to say, 
``Let us pass a constitutional amendment.'' It is a gut feeling we have 
when we see a wrong. Let us just nail it down. Let us not pass a law--
put it in the Constitution and forever deal with the issue.
  However, history, as well as common sense, counsel that we only amend 
the Constitution under very limited circumstances. I strongly believe 
that those circumstances do not exist in the case of the so-called flag 
burning amendment. Proponents of this amendment argue that we must 
amend the Constitution in order to preserve the symbolic value of the 
U.S. flag. However, they do so in the absence of any evidence that flag 
burning is rampant today or that it is likely to be in the future. But 
perhaps more importantly, this amendment is offered in the absence of 
any evidence, any evidence at all, that the symbolic value of the flag 
has in any way been compromised in this great Nation. It has not. No 
evidence has been offered to show that the small handful of misguided 
individuals who may burn a flag each year have any effect whatsoever on 
this Nation's love of the flag or our Democratic way of life.
  The inescapable fact of the matter is that the respect of this Nation 
for its flag is unparalleled. The citizens of this Nation love and 
respect the flag for varied and deeply personal reasons, some of which 
were eloquently expressed today by the distinguished chairman of the 
Judiciary Committee. That is why they love the flag, not because the 
Constitution imposes the responsibility of love of the flag on them.
  As a recent editorial in the La Crosse, WI, newspaper pointed out, 
``Allegiance that is voluntary is something beyond price. But 
allegiance extracted by statute--or, worse yet, by constitutional 
fiat--wouldn't be worth the paper the amendment was drafted on. It is 
the very fact that the flag is voluntarily honored that makes it a 
great and powerful symbol.''
  I think that is a great statement one of our Wisconsin newspapers 
made.
  Mr. President, the suggestion that we can mandate, through an 
amendment to the Constitution, respect for the flag or any other symbol 
ignores the premise underlying patriotism; more importantly, it belies 
the traditional notions of freedom found in our own Constitution.
  Mr. President, some would argue this debate is simply about 
protecting the flag, that it is just a referendum over who loves the 
flag more. This faulty premise overlooks the underlying issue which I 
think is at the heart of the debate, that being to what degree are we 
as a free society willing to retreat from fundamental principles of 
freedom when faced with the actions of just a handful of misguided 
individuals? 

[[Page S 18257]]

  In my estimation, Mr. President, the answer is clear. The cost 
exacted by this amendment in terms of personal freedom--in terms of 
personal freedom--is just far too great a price to pay to protect a 
flag which already enjoys the collective respect and admiration and 
love of an entire nation. If adopted, this amendment will have an 
unprecedented direct and adverse effect on the freedoms embodied in the 
Bill of Rights. These are freedoms which benefit each and every citizen 
of this Nation.
  Yes, Mr. President, it is true, despite what the chairman said today, 
it is true that for the first time in our history, for the first time 
in this great Nation's history, the Constitution and the Bill of 
Rights, both premised on limiting the Government--they are premised on 
limiting the Government--will be used to limit individual rights, and, 
in particular, for the first time the constitutional process will be 
used to limit, not guarantee, but limit individual freedom of 
expression.
  I do not know how you could overstate the significance of such a new 
course in our constitutional history. As Dean Nichols of the Colorado 
College of Law noted before the Constitution Subcommittee of the 
Judiciary Committee, said, ``I think there would be a real reluctance 
to be the first American Congress to successfully amend the first 
amendment.''
  Do not let anyone kid you. That is what this would do. It would amend 
the first amendment. It will have a different number, it will be listed 
in the high twenties, but it will change and alter the first amendment.
  The chairman tries to address that by saying, well, shortly after the 
Bill of Rights was passed, the 11th amendment was passed in 1798. That 
is accurate. But it did not change the right to free speech. It did not 
limit the scope of the Bill of Rights.
  In fact, the 11th amendment was consistent with the spirit of the 
Bill of Rights by guaranteeing that the States cannot be compromised by 
the Federal Government. The 11th amendment was not about limiting free 
expression or any other freedom of the Bill of Rights. It states:

       The Judicial power of the United States shall not be 
     construed to extend to any suit in law or equity, commenced 
     or prosecuted against one of the United States by Citizens of 
     another State, or by Citizens or Subjects of any Foreign 
     State.

  It is not about free speech. The point is really that this would be 
the first time--the first time--in this Nation's history that we would 
change something I consider to be very sacred, the Bill of Rights. That 
we would choose now, after 200 years of the most unparalleled liberty 
in human history, to limit the Bill of Rights in the name of patriotism 
is inherently flawed. And I think it is really, ironically very tragic.
  Some will argue that we should not attach too much significance to 
this unprecedented step, while still others argue that the amendment 
has no effect whatsoever on the first amendment. This is despite the 
fact that this amendment, if adopted--make no mistake about it--if it 
is adopted, it would criminalize--make it a crime--the very same 
expression that the Supreme Court has previously held to be explicitly 
protected under the first amendment.
  So it is clearly an erosion of the Bill of Rights. You may argue that 
it is a justified erosion or a necessary erosion, but it clearly limits 
what the U.S. Supreme Court has said is part and parcel of our freedom 
as an American to express ourselves.
  Mr. President, I think it is essential to carefully consider the 
basis for the adoption of the Bill of Rights before we go ahead and 
alter it for the first time in our Nation's history. Many who 
originally opposed the Constitution, those not entirely comfortable 
with the ratification, sought the Bill of Rights in particular because, 
in their view, the Constitution in its original form without the Bill 
of Rights, failed to properly consider and protect the basic and 
fundamental rights of the individuals of this country. That is why we 
have a Bill of Rights.
  Although many Federalists, including Madison, felt that the limited 
powers conferred to the Government by the Constitution, the limitations 
in the Constitution itself, were sufficiently narrow so as to leave 
those rights safe and unquestioned, people still felt we had to go 
ahead and have a Bill of Rights adopted in order to provide the 
reluctant States with the assurance and the comfort necessary so they 
would approve the Constitution, so they would enter into this great 
Federal Union. And everyone today in the 104th Congress should 
understand this.
  What is so much of the rhetoric of the 104th Congress about? The 
concern that the Federal Government is too strong, that it does too 
much, that we ought to leave enough power to the States and to 
individuals. That is what all the rhetoric is about today. Well, that 
is what the Bill of Rights was about also. And that is why we have 
never changed it. Because the notion of the Contract With America is 
not a new one. It is a heartfelt feeling of all Americans that the 
Federal Government must be tightly limited in its powers so that our 
liberties as individuals and as States cannot be compromised.
  From this beginning in compromise, almost exactly 204 years ago, the 
Bill of Rights has evolved into the single greatest protector of 
individual freedom in human history. It has done so in large measure, I 
believe, because attempts to alter its character have to date been 
rejected. If this great document was changed every few years, as I am 
sure every Congress has been tempted to do, it would not be the great 
Bill of Rights that not only Americans revere but people around the 
world revere as well.
  That individuals should be free to express themselves, secure in the 
knowledge that Government will not suppress their expression based 
solely upon its content, is a premise on which the Nation was founded. 
The Framers came to this land to escape oppression at the hands of the 
state. Obviously, there is no dispute about that, that Government 
should not limit one's ability to speak out. That is established in our 
Constitution by the simple words in the first amendment, ``Congress 
shall make no law * * * ''--no law--``* * * abridging the freedom of 
speech * * *.''
  Of course, over time this Nation has had to grapple with the exact 
parameters of free speech, regulating in regard to defamation or 
obscenity for example. However, the fact that some expression may be 
proscribed, can be stopped, does not obviate the presumptive invalidity 
of any content-based regulation.
  In the words of Justice Scalia of the U.S. Supreme Court:

       . . . the Government may proscribe libel; but it may not 
     make the further content discrimination of proscribing only 
     libel critical of the Government.

  In other words, you cannot chose which messages you like and which 
messages you do not like. You cannot say libel against this Government 
is different than other kinds of content that might also be libel. 
Although we need not concern ourselves with the exact parameters of 
speech subject to limitation here because the expression in question, 
political expression, is clearly protected under the first amendment. 
This points out the fact that the one defining standard that has marked 
the history of free expression in this Nation is that speech cannot be 
regulated on the basis of its content.
  The presumptive invalidity of content regulation protects all forms 
of speech, that which we all agree with, as well, of course, as the 
speech we may disagree with or find objectionable. To do otherwise 
would make the promise of free speech a hollow promise. What does it 
mean if we only protect that which we like to hear or is pleasant to 
our ears?
  As the Supreme Court stated in Street versus New York:

       . . . freedom to differ is not limited to things that do 
     not matter much. That would be a mere shadow of freedom. The 
     test of its substance is the right to differ as to things 
     that touch the heart of the existing order.

  Yet, Mr. President, this amendment departs from that noble and time-
honored standard. It seeks instead to prohibit a certain kind of 
expression solely, solely because of its content.
  The committee report accompanying this amendment makes it explicit 
that this effort is directed at that expression which is deemed 
disrespectful--disrespectful. This amendment attempts to deal only with 
disrespectful expression. Even more troubling is that this amendment 
leaves the determination of what is disrespectful to the 

[[Page S 18258]]
Government, the very Government that we were trying to limit after we 
won the Revolutionary War and got together and passed a constitution. 
It is that Government that we are going to allow to define what is 
objectionable by this amendment.
  What could be more contrary to the very foundations of this country? 
For the purpose of free expression to be fulfilled, the first amendment 
must protect those who rise to challenge the existing wisdom, to raise 
those points which may anger or even offend or be disrespectful.
  As the great jurist, William O. Douglas, observed, free speech:

       . . . may indeed serve its high purpose when it induces a 
     condition of unrest, creates dissatisfaction with conditions 
     as they are, or even stirs people to anger.

  Mr. President, adherence to this ideal is exactly what separates 
America from oppressive regimes across the world. We tolerate dissent, 
we protect dissenters, while those other countries suppress dissent and 
jail dissenters or, for example--and I can give you many examples, as I 
know the Chair can--as recent events illustrate in Nigeria, the 
condemnation of dissenters to a fate far more grave than incarceration: 
summary execution.
  The first amendment to the U.S. Constitution is not infallible. It 
cannot sanitize free expression any more than it can impart wisdom on 
thoughts which otherwise have none. Nor can the first amendment ensure 
that free expression will always comport with the views of a majority 
of the American public or the American Government.
  But what the first amendment does promise is the right of each 
individual in this Nation to stand and make their case, regardless of 
their particular point of view, and to do so in the absence of a 
Government censor. In my estimation, this right is worthy of 
preserving, and I think that right is at risk today on the floor of the 
U.S. Senate.
  When we start down the road to distinguishing between whose message 
is appropriate and whose is not, we risk something far greater than the 
right to burn a flag as political expression.
  Much of what is clearly protected expression can easily be deemed 
objectionable. For example, as I said many times before and a lot of 
people have said before me, I deplore those who proudly display the 
swastika as they parade through our neighborhoods. I deplore these who 
hide behind white sheets and espouse their litany of hate and ignorance 
under a burning--a burning--cross. I deplore those comments which 
suggest that the most effective way to deal with law enforcement is to 
shoot them in the head. We hear that these days. Just as I object to 
speech which seeks to equate particularly vile criminal acts with a 
particular political ideology.
  Each of these forms of expression, Mr. President, is reprehensible to 
me and to traditional American values of decency and tolerance. But 
they are all protected forms of expression nonetheless, and they would 
continue to be protected after this amendment was passed and ratified. 
So do I believe that we ought to outlaw them through an amendment to 
the Constitution of the United States? Of course not.
  So too it is with flag burning. As the Supreme Court has repeatedly 
stated, the act of flag burning cannot be divorced from the context in 
which it is occurring, and that is political expression. It was pretty 
clear from our Judiciary Committee hearings if somebody is out in the 
backyard grilling on July 4th and accidentally burns their flag, that 
would not be the necessary intent. There has to be some mental 
element--it cannot just be an accident. So this amendment is about what 
somebody is thinking. It is about what somebody is thinking when they 
burn the flag. It is about the content of their mind.
  This Nation has a proud and storied history of political expression, 
much of which, obviously, can be characterized and is characterized 
sometimes as objectionable. Does any Member of this body believe that 
if the question had been put to the Crown as to whether or not the 
speech and expression emanating from the Colonies in the form of the 
Boston Tea Party or the Articles of Confederation, should be sustained, 
the answer, I think, we all know would have been a resounding no. Could 
not the same be said of messages of the civil rights and suffrage 
movements? This Nation was born of dissent and, contrary to the view 
that it weakens our democracy, this Nation stands today as the leader 
of the free world because we tolerate those varying forms of dissent, 
not because we persecute them.
  In seeking to protect the U.S. flag, this amendment asks us to depart 
from the fundamental ideal that Government shall not suppress 
expression solely because it is disagreeable.
  As Justice Brennan wrote for the majority in Texas versus Johnson:

       If there is a bedrock principle underlying the first 
     amendment, it is that the Government may not prohibit 
     expression of an idea simply because society finds the idea 
     itself offensive or disagreeable. We have not recognized an 
     exception to this principle even where our flag has been 
     involved.

  In charting a divergent course, this amendment would create that 
exception, an exception at odds with free expression and with our 
history of liberty. If adopted, this amendment would, for the first 
time in our history, signal an unprecedented, misguided and troubling 
departure from our history as a free society.
  Mr. President, there are also definitional and practical flaws with 
this amendment. Beyond the proposed amendment's departure from 
traditional notions of free expression, there are practical aspects 
that raise concerns, not just for those who may offer objectionable 
points of view, not just for the purported or possible flag burners, 
but for all Americans. This amendment will subject the constitutional 
rights of all Americans to potentially an infinite number of differing 
interpretations, the parameters of which the proponents themselves 
cannot even define.
  Without any guidance as to the definition of the key terms, the 
proposed amendment provides the Congress and the States the power to 
prohibit the physical desecration of the U.S. flag.
  Testimony was received by the Constitution Subcommittee that the term 
``flag of the United States,'' as used in this amendment, is, as they 
said, ``problematic'' and so ``riddled with ambiguity'' as to ``war 
with the due process norm that the law should warn before it strikes.'' 
Even supporters of this amendment, including former Attorney General of 
the United States William Barr, have acknowledged that the term 
``flag'' could mean many different things. The simple fact of the 
matter is that no one can lend any guidance as to what the term 
``flag'' will mean, other than to suggest that it will be up to various 
jurisdictions.
  Senator Hatch, the chairman, has indicated today that the States will 
be removed from the amendment. If that is not the case, leaving them in 
would raise a second practical problem with this effort to amend the 
Bill of Rights, that being that the fundamental constitutional rights 
would be explicitly subject to the geographic boundaries of political 
subdivision.
  The report accompanying this measure acknowledges that the extent to 
which this amendment will limit your freedom of expression could well 
depend on where you live. Therefore, if you live in Madison, WI, your 
rights could be vastly different than the rights of your cousin who 
lives in Seattle, WA, for example.
  Furthermore, the rights of the States to limit the first amendment 
would not prohibit subsequent legislative bodies from expanding or 
further limiting rights under the first amendment. In other words, 
fundamental rights to free speech could vary from one election to the 
next.
  So I will await with interest the amendment regarding the States, but 
as the amendment is written now there will be at least--at least--for 
the first time in our country's history, 51 interpretations of the 
first amendment.
  I think this is counter to the very premise of the Bill of Rights, 
that being that the rights of individuals should remain beyond the 
purview of unwarranted governmental intrusion or intervention. That is 
what led to the adoption of the Bill of Rights in the first place.
  In the words of Justice Jackson, speaking for the Supreme Court in 
1943:

       The very purpose of the Bill of Rights was to withdraw 
     certain subjects from the vicissitudes of political 
     controversy, to place them beyond the reach of majorities and 
     officials, to establish them as legal principles 

[[Page S 18259]]
     to be applied by the courts. One's right to life, liberty and property, 
     to free speech, a free press, freedom of worship and 
     assembly, and other fundamental rights may not be submitted 
     to vote; they depend on the outcome of no elections.

  Yet, this amendment does exactly that and subjects those fundamental 
rights to the outcome of elections. What comfort is a first amendment 
which tells the American public that the appropriateness of their 
political expression will be left up to the Government?
  At the core of this proposed amendment is the desire to punish that 
expression which is disrespectful. The ability to accomplish this 
troubling goal turns upon the interpretation that would be given to the 
term ``desecration.'' Mr. President, despite attempts to argue that it 
means to ``treat with contempt'' or ``disrespect'' or to violate the 
``sanctity'' of the flag, it is just obvious that this is subject to 
interpretation. The word ``desecration'' could not be more subject to 
interpretation. It is almost an inherently vague term.

  If, as the report accompanying this measure suggests, every form of 
desecration is not the target of this amendment, then it logically 
follows that the Government--the Federal Government --will make 
distinctions between types of political expression, and the distinction 
will be this: that which is acceptable and that which is not. The flaws 
in this process should be obvious to every American.
  So long as your political expression comports with that of the 
governing jurisdiction, you are going to have your freedom of 
expression, and it will be preserved. We can certainly debate this 
point, but in punishing only that expression which is 
``disrespectful,'' someone--in this case the Government--has to decide 
what is disrespectful and what is not.
  For those of us who think that this is an easy distinction and there 
is not going to be a problem deciding what is desecration and what is 
disrespectful, I have an example. A Vietnam war veteran, a friend of 
mine from Wisconsin, Marvin J. Freedman, recently wrote in an article, 
aptly entitled, ``The Fabric of America Cannot Be Burned,'' that the 
fatal flaw in this amendment will be its application. In Mr. Freedman's 
words:

       The real potential for crisis is one of context. Consider 
     the star spangled bandanna. Let's say a highly decorated 
     veteran is placing little American flags on the graves at a 
     veterans cemetery for Memorial Day, works up a sweat and 
     wipes his brow with one of those red, white, and blue 
     bandannas. If the flag amendment were on the books, would the 
     veteran's bandanna be deemed a ``flag of the United States''? 
     Probably not. But if it were, would his actions be 
     interpreted as ``desecration''? I cannot imagine anyone 
     thinking so.

  Mr. Freedman continues:

       However, if a bedraggled-looking antiwar protester wiped 
     his brow with the same bandanna after working up a sweat and 
     denouncing a popular President and the United States 
     Government's military policy, a different outcome could be a 
     distinct possibility. Whether the bandanna would be deemed a 
     ``flag'' and the sweat-wiping considered desecration would 
     very likely be directly related to the relative popularity of 
     the President and the war being protested. That is where the 
     flag amendment and the first amendment would bump into each 
     other.

  Mr. President, we are all free to draw our own conclusions as to the 
validity of Mr. Freedman's hypothetical. I think it does a good job in 
pointing out, in very simple terms, that which the Supreme Court has 
often stated: You cannot divorce flag desecration from the political 
context in which it occurs. Ultimately, value judgments have to be 
made, and I think these are judgments that this amendment, 
unfortunately, reserves to the Government. For the first time in our 
history, it gives that judgment to the Government, not to individuals, 
not to the citizens of this country.
  Mr. President, the rights at the heart of this debate are far too 
fundamental and far too important to be subjected to the uncertainty 
created by this amendment. We must not abandon 2 centuries of free 
expression in favor of an unwarranted and ill-defined standard which 
allows Government to choose whose political message is worthy of 
protection and whose is not. This is counter to the very freedoms the 
flag symbolizes.
  The very idea that a handful of misguided people could cause this 
Nation--a Nation which has, from its inception, been a beacon of 
individual liberty, and a Nation which has defended, both at home and 
abroad, the right of individuals to be free--to retreat from the 
fundamental American principle that speech should not be regulated 
based upon its content is really cause for great concern.
  I cannot believe we are going to let a few people who are not even 
around, as far as we know, not even doing this flag desecration, cow us 
into passing this amendment. That would give the victory to the flag 
burners. It would be score one for the flag burners if we are foolish 
enough to amend the Constitution and Bill of Rights, for the first time 
in our history, just to deal with such misguided people.
  Again, Mr. President, there is no doubt that the American people care 
deeply about the flag. But I really believe they care just as deeply 
about the Constitution. I was recently contacted by a man from Sturgeon 
Bay, WI, a veteran of the Navy. What did he have to say? He wrote:

       The most important part of the Constitution is the Bill of 
     Rights, the first ten amendments. The most important one of 
     those is the first amendment. Burning a flag, in my opinion, 
     is expressing an opinion in a very strong way. While I may 
     disagree with that opinion, I must support the right to 
     express that opinion. To me, the first amendment is the most 
     important thing. The flag is a symbol of that and all other 
     rights, but only that, a symbol.

  My constituent, I think, said it quite well. I appreciated very much 
the time and effort taken to write to me, not because we share the same 
perspective, but because the letter makes the very important point 
that, in the final analysis, and as the proponents of the amendment 
readily concede, the flag is but a symbol of this Nation. As I said at 
the outset, Mr. President, we are not a nation built on symbols; we are 
a nation built on principles.
  We will be paying false tribute to the flag, in my opinion, if in our 
zeal to protect it we diminish the very freedoms it represents. The 
true promise of this great and ever-evolving Nation is rooted in its 
Constitution. Ultimately, the fulfillment of this promise lies in the 
preservation of this great document, not just of that which symbolizes 
it. If we sacrifice our principles, ultimately, our symbols will 
represent something less than they should.
  Therefore, Mr. President, I must respectfully oppose this effort to 
amend the Bill of Rights. While I do not oppose this effort with 
anything less than the utmost respect for the American flag, my belief 
that we must be vigilant in our preservation of the Bill of Rights and 
the individual freedoms found therein really dictates my opposition.
  Mr. President, to conclude, the measure before us limits the Bill of 
Rights. It actually limits the Bill of Rights in an unprecedented, 
unwarranted, and ill-defined manner. As such, I intend to oppose this 
resolution.
  Mr. President, I ask unanimous consent that a series of editorials 
from throughout the State of Wisconsin, all opposed to flag burning and 
also to this amendment, be printed in the Record.
  There being no objection, the articles were ordered to be printed in 
the Record, as follows:

           [From the Wisconsin State Journal, June 14, 1995]

            Our Opinion: Flag Burning Amendment Unpatriotic

       Today, Flag Day, is an occasion to celebrate liberty. And 
     one of the best ways you can celebrate liberty is to writer 
     your congressman to urge a vote against the proposed 
     constitutional amendment to ban flag burning.
       It may seem unpatriotic to stand up for a right to burn the 
     American flag. But the proposed amendment is not about 
     whether it is patriotic to burn a flag. It is about whether 
     it is right to limit the liberties for which our flag flies. 
     A true patriot would answer no. Consider:
       It's futile, even counter-productive, to try to require 
     patriotism by law.
       In fact, it would inspire greater respect for our nation to 
     refrain from punishing flag burners. As conservative legal 
     scholar Clint Bolick of the institute for Justice told a 
     House subcommittee, we can lock up flag burners and by doing 
     so make them martyrs, ``or we can demonstrate by tolerating 
     their expression, the true greatness of our republic.''
       Laws to protect the flag would be unworkable.
       The proposal now before the House seeks a constitutional 
     amendment to allow Congress and the states to pass laws 
     banning physical desecration of the flag. It would require 
     approval by two-thirds of the House and Senate and three-
     fourths of the states. 
     
[[Page S 18260]]

       It's called the flag burning amendment because many of its 
     supporters consider burning the flag to be the most egregious 
     form of desecration.
       But what counts as desecration of the flag? What if someone 
     desecrated something made up to look like a flag with some 
     flaw, like the wrong number of stars or stripes? Does that 
     count? What if a flag is used in art that some people 
     consider rude or unpatriotic? Does that count as desecration?
       The arguments could rage on and on, enriching lawyers and 
     diminishing the nation.
       A ban on flag burning would set a dangerous precedent.
       The proposed amendment is a reaction to 1989 and 1990 
     Supreme Court rulings that invalidated federal and state laws 
     banning flag desecration. The court rules that peaceful flag 
     desecration is symbolic speech, protected by the First 
     Amendment freedom of speech clause.
       Supporters of a ban on flag burning argue that burning a 
     flag is not symbolic speech at all but hateful action. But if 
     today's cause is to ban flag burning because it is hateful 
     action, tomorrow's cause may be to ban the display of the 
     Confederate flag because many people consider it to be 
     hateful action. Or to ban the use of racial or sexist 
     comments because they amount to hateful actions. And on and 
     on until we have given up our freedoms because we are 
     intolerant.
       The right to protest is central to democracy.
       A democracy must protect the right to protest against 
     authority, or it is hardly a democracy. It is plainly 
     undemocratic to take away from dissenters the freedom to 
     protest against authority by peacefully burning or otherwise 
     desecrating a flag as the symbol of that authority.
       If the protesters turn violent or if they steal a flag to 
     burn, existing laws can be used to punish them.
       Flag burners are not worth a constitutional amendment.
       A good rule of thumb about amending the U.S. Constitution 
     is: Think twice, then think twice again. Flag burning is not 
     an issue that merits changing the two-centuries-old blueprint 
     for our democracy.
       This nation's founding fathers understood the value of 
     dissent and, moreover, the value of the liberty to dissent. 
     So should we.
                                                                    ____


     Our View: The American Flag--Old Glory Doesn't Need Amendment

            [From the La Crosse (WI), Tribune, June 7, 1995]

       The U.S. Supreme Court ruled in a Texas case in 1989 that 
     flag burning is protected by the First Amendment as a form of 
     speech.
       The court's decision didn't go over very well with friends 
     of Old Glory then, and six years later that ruling still 
     sticks in the craw of many patriots--so much so that 
     constitutional amendments protecting the flag against 
     desecration have picked up 276 cosponsors in the U.S. House 
     of Representatives and 54 in the Senate.
       The House Judiciary Committee takes up the amendment today, 
     with a floor vote expected on June 28. The Senate Judiciary 
     Committee tackled a similar amendment on Tuesday.
       For two centuries soldiers have given their lives to keep 
     the American flag flying. It is a symbol of freedom and hope 
     for millions. That is what infuses the stars and stripes with 
     meaning and inspires the vast majority of Americans to treat 
     it with respect.
       But to take away the choice in the matter, to make respect 
     for the flag compulsory, diminishes the very freedom 
     represented by the flag.
       Do we follow a constitutional amendment banning flag 
     desecration with an amendment requiring everyone to actually 
     sing along when the national anthem is played at sports 
     events? An amendment making attendance at Memorial Day 
     parades compulsory?
       Sen. Howell Heflin, D-Ala., argues that the flag unites us 
     and therefore should be protected. But Heflin and like minded 
     amendment supporters are confusing cause and effect. The flag 
     is a symbol of our unity, not the source of it.
       Banning flag burning is simply the flip side of the same 
     coin that makes other shows of patriotism compulsory. What 
     are the names of the countries that make shows of patriotism 
     compulsory? Try China. Iraq. The old Soviet Union.
       Coerced respect for the flag isn't respect at all, and an 
     amendment protecting the American flag would actually 
     denigrate that flag.
       Allegiance that is voluntary is something beyond price. But 
     allegiance extracted by statute--or, worse yet, by 
     constitutional fiat--wouldn't be worth the paper the 
     amendment has drafted on. It is the very fact that the flag 
     is voluntarily honored that makes if a great and powerful 
     symbol.
       The possibility of the Balkanization of the American people 
     into bickering special interest groups based on ethnicity or 
     gender or age or class frightens all of us, and it's tempting 
     to try to impose some sort of artificial unity. But can the 
     flag unite us? No. We can be united under the flag, but we 
     can't expect the flag to do the job of uniting us.
       We oppose flag burning--or any other show of disrespect for 
     the American flag. There are better ways to communicate 
     dissent than trashing a symbol Americans treasure. But making 
     respect for the flag compulsory would, in the long run, 
     decrease real respect for the flag.
       The 104th Congress should put the flag burning issue behind 
     it and move on to the nuts-and-bolts goal it was elected to 
     pursue: a smaller, less intrusive, fiscally responsible 
     federal government. A constitutional amendment protecting the 
     flag runs precisely counter to that goal.
                                                                    ____


           [From the Oshkosh (WI) Northwestern, May 28, 1995]

                  Beware Trivializing Our Constitution

       It is difficult to come out against anything so sacrosanct 
     as the American flag amendment--difficult but not impossible.
       An amendment to protect the flag from desecration is before 
     Congress and has all the lobbying in its favor.
       The trouble is, it is an attempt to solve, through the 
     Constitutional amendment process, a problem that really is 
     not a problem.
       Flag burning is not rampant. It occurs occasionally; it 
     brings, usually, society's scorn upon the arsonist, and does 
     no one any harm, except the sensitivities of some.
       These sensitivities give rise to the effort to abridge the 
     freedom of expression guaranteed by the First Amendment, 
     which has been held by the courts to include expressions of 
     exasperation with government by burning its banner.
       At worst, this flag protection is an opening wedge in 
     trimming away at the basic rights of all Americans to 
     criticize its leaders. That right was so highly esteemed by 
     the Founding Fathers that they made free speech virtually 
     absolute.
       At best, the flag protection amendment trivializes the 
     Constitution.
       That is no small consideration. The Constitution was 
     trivialized once before. The prohibition amendment had no 
     business being made a constitutional chapter. It was not of 
     constitutional stature. It could have been done by statute 
     alone. Its repeal showed that it was a transitory matter 
     rather than being one of transcendent, eternal concern.
       The flag protection amendment is trivial in that flag 
     burning is not always and everywhere a problem. If the 
     amendment succeeds, what else is out there to further 
     trivialize the document?
       Must the bald eagle be put under constitutional protection 
     if it is no longer an endangered bird?
       This is a ``feel good'' campaign. People feel they 
     accomplish something good by protecting the flag from 
     burning. (Isn't the approved method of disposing of tattered 
     flags to burn them, by the way?)
       But it offers about the same protection to flags that the 
     18th offered to teetotaling.
       If someone has a political statement to make and feels 
     strongly enough, he'll do the burning and accept the 
     consequences. The consequences surely will not be draconian 
     enough that flag burning would rank next best thing to a 
     capital offense.
       Congress has more pressing things to do than put time into 
     this amendment.
                                                                    ____


       [From the Milwaukee (WI) Journal Sentinel, June 12, 1995]

                       Flag Amendment Ill-Advised

       Probably nine-tenths of the knuckleheads who get their 
     jollies from burning the American flag or desecrating it in 
     other ways have no idea what freedoms that flag symbolizes. 
     Because these people are stupid as well as ungrateful, they 
     never think about the precious gift they have been given.
       The irony is that the American flag stands for, among other 
     things, the freedom to express yourself in dumb and even 
     insulting ways, like burning the flag. This is a freedom 
     literally not conferred on hundreds of millions of people.
       A few years ago, several states passed laws that made it 
     illegal to desecrate the flag, but in 1989 the Supreme Court 
     ruled that such statutes violated the Bill of Rights. 
     Congress is now moving to amend the Constitution itself, so 
     that flag desecration laws can be enacted.
       That movement is as ill-considered as it is understandable. 
     The Constitution should be amended only reluctantly and 
     rarely, when a genuine threat to our nation emerges and when 
     there is no other way to guard against it.
       That is why the founding fathers made it so difficult to 
     revise the Constitution, and why, as a Justice Department 
     spokesman pointed out the other day, the Bill of Rights has 
     not been amended since it was ratified in 1792.
       The unpatriotic mischief of adolescent punks is 
     infuriating. But it is not a serious enough act to warrant 
     revision of the nation's charter. The Bill of Rights exists 
     to protect people whose behavior, however repugnant, injures 
     nothing but people's feelings.
       The American flag protects even people who burn it; it 
     prevails over both them and their abuse. That is one of the 
     reasons the flag and the nation it stands for are so strong.

  Mr. KYL addressed the Chair.
  The PRESIDING OFFICER (Mr. Gorton). The Senator from Arizona.
  Mr. KYL. Mr. President, I would like to respond briefly to the 
remarks of the Senator from Wisconsin and other arguments in opposition 
to this proposed amendment and to speak briefly in favor of the 
amendment. Senator Roth from Delaware is here to speak to an important 
subject as well. So what I will do is truncate my remarks, and Senator 
Hatch will be here a little bit later to speak at greater length on the 
constitutional amendment. 

[[Page S 18261]]

  Mr. President, I think we need to start with some fundamentals. I 
have never questioned the sincerity, or the judgment, or reasoning, or 
conclusions, even, of those who oppose a constitutional amendment on 
desecration of the flag. There are very sound constitutional arguments 
on both sides of this issue. It is one of those classical issues on 
which people on both sides can marshal evidence, historical commentary, 
and reasoning to support their views. In my view, it is not an easy 
question to resolve. But I do take some offense at the suggestion that 
those who propose the amendment--just to use one quotation used 
before--are involved in misguided rhetoric, and terminology of that 
sort. We can disagree over something of this importance, without 
suggesting that those who hold a different view are dangerous, 
misguided, or simply engaged in rhetoric.
  I think, to some extent, that while nothing--except perhaps declaring 
war--is a more solemn right and responsibility of the Congress than 
amending the Constitution, it is also possible that some in Congress, 
from time to time, become consumed by their own importance. It is easy 
to do. Yet, I think it is equally important for us to recognize that we 
do not amend the Constitution, that while it is important for us to 
raise all of these questions and to debate this as solemnly as we can, 
that we do not amend the Constitution, Mr. President. The people amend 
the Constitution. All we can do is recommend an amendment. It is the 
people who make the ultimate decision.

  To put it in the simplest terms, what we are suggesting is we ask the 
American people: Do you want to amend the Constitution to protect the 
flag? If the people say no, then it will not happen; if the people say 
yes, I suggest that we should rely upon their judgment in this matter, 
the very people who, after all, elect us to represent them in all other 
matters except amending the Constitution, which under our document is 
reserved to the people for final decision.
  I think we have to put some trust in the American people here to do 
the right thing.
  It is interesting to me that historically in this country for 200 
years we got along very well living under a Constitution that protected 
free speech, and yet in 49 of the 50 States, prevented desecration of 
the flag. This is not a choice between protecting the flag and the U.S. 
Constitution, as was suggested a moment ago. That is a false choice. 
For 200 years we did both. We can do both.
  Since the decision of the Supreme Court which struck down the 
protection of the flag, 49 States, including my State of Arizona, have 
passed memorializing resolutions calling on Congress to pass a flag 
desecration amendment so that the States could consider it.
  In 1991, Arkansas, while President Clinton was still serving as 
Governor, became the 11th of 49 States to ``urge Congress of the United 
States to propose an amendment to the U.S. Congress, for ratification 
by the States, specifying that the Congress and the States shall have 
the power to prevent the physical desecration of the flag of the United 
States.''
  I also note that the decision of the Supreme Court invalidated the 
law that then-Governor Clinton had signed months earlier which 
prohibited the intentional desecration of the flag, though the 
President now opposes this particular amendment.
  The House passed a companion measure to that which is being 
considered here, on June 28, by a vote of 312 to 120. This has 
bipartisan support. The Senate Judiciary Committee, with equally 
bipartisan support, approved the amendment on July 20 by a vote of 12 
to 6.
  The purpose of this resolution is to restore the authority to adopt 
statutes protecting the U.S. flag from physical desecration. As I said, 
it is not a choice between the flag and the Constitution. We proved for 
200 years that both are possible to protect.
  The flag is worthy of protection. It is a unique national symbol, 
representative, among other things, of the men and women who have 
served this country. It is draped over the coffins of those who have 
paid the ultimate price to preserve our freedom and invokes very strong 
emotions in all Americans. It is important to protect the symbol for 
these reasons.
  You cannot burn or deface other national symbols which have far less 
emotional symbolic value than the flag, but we allow it because the 
Supreme Court said a few years ago we would allow the desecration of 
the flag.
  This resolution, frankly, is in direct response to the Texas versus 
Johnson decision in Texas of the Supreme Court. It was a 5-to-4 
decision. So literally, one unelected judge decided that a law that had 
existed for over 200 years was now mysteriously unconstitutional.

  The Court later ruled in United States versus Eichman that Congress 
could not by statute protect the flag making it very clear that our 
only response could be a proposed constitutional amendment.
  Mr. President, I am not going to respond to each of the arguments 
made because Senator Roth has some important things to say on another 
subject. Let me just respond to a couple.
  One of the arguments and probably the key argument of the proponents 
is that we would be trampling on the right of free speech by adopting 
this amendment. I understand that argument. It is not a frivolous 
argument.
  The argument of some opponents that flag burning is a nonproblem 
because it is hardly ever done and therefore why would we even want to 
bother with this, I think is a good argument against the notion that 
this would be a significant intrusion on the first amendment.
  It seems to me opponents cannot argue on the one hand that this is 
insignificant, never happens, why are you worrying about it, and on the 
other hand say it would be the biggest travesty and impingement on free 
speech to be visited on the U.S. Constitution and the people of 
America.
  You cannot have it both ways. The truth of the matter is it is true 
that this is not a big problem, but it does not follow from that that 
we should not offer the States the ability to restore the protection of 
the flag that it enjoyed for 200 years. Mr. President, 49 States seem 
to think this is important enough to have memorialized Congress, asking 
for the ability to once again restore that protection.
  Now, the passing of a constitutional amendment would not prevent 
those who hate America or who have particular grievances from 
expressing this contempt through any other speech or even certain 
conduct as the Supreme Court has permitted. You do not have to burn the 
flag to express your views.
  I suggest in civilized society people should be able to express 
themselves in ways that are not so personally and viscerally offensive, 
for example, to a family grieving over the flag-draped coffin of a 
loved one.
  Mr. President, let me just conclude by quoting from some people who 
have spoken to this issue before in a way which I think is instructive. 
This is not misguided rhetoric by extremists or superpatriots. I refer, 
Mr. President, to the words of Chief Justice Earl Warren, an eminently 
respected jurist of this country: ``I believe that the States and the 
Federal Government do have the power to protect the flag from acts of 
desecration and disgrace.''
  A famous liberal jurist, a man greatly respected on the Supreme Court 
of the United States, Justice Hugo Black:

       It passes my belief that anything in the Federal 
     Constitution bars a State from making the deliberate burning 
     of the American flag an offense. It is immaterial that the 
     words are spoken in connection with the burning. It is the 
     burning of the flag that the State has set its face against.

  And Justice Abe Fortas, a respected liberal, a Democrat, not an 
extremist conservative patriot: ``* * * the States and the Federal 
Government have the power to protect the flag from acts of desecration 
* * *.''
  Let me quickly also demonstrate this point further by noting the 
names of many respected members of the Democratic Party who have 
sponsored or voted for this amendment. This is not a partisan issue, as 
I said: 93 House Democrats voted for the flag amendment, including 
Richard Gephardt the minority leader, Deputy Whips Bill Richardson and 
Chet Edwards, and a host of other ranking and subcommittee members and 
key members of the Democratic Party. Democrats and Republicans alike, 
liberals and conservatives, can appreciate the importance of doing 
this.
  And the final argument that was made that these words are so subject 
to 

[[Page S 18262]]
interpretation, ``desecration'' and ``flag''--who knows what ``flag'' 
means? Mr. President, the American experience of 200-plus years teaches 
us what the word ``flag'' means, and ``desecration'' has meaning which 
can be interpreted by judges of good will.
  The Bill of Rights and the 14th amendment to the U.S. Constitution 
are filled with general statements which the Framers of the 
Constitution and of the 14th amendment clearly understood need to be 
phrased relatively generally in order to deal with the variety of 
circumstances to which they would be applied. Words like 
``establishment of religion,'' ``unreasonable searches and seizures,'' 
leaving ``unreasonable'' to the interpretation of the courts. ``Due 
process of law''--I can hear the arguments now. What do you mean by 
``due process''? What do you mean by ``just compensation,'' by ``speedy 
trial''? You need to define it.

  Mr. President, one of the geniuses of the Constitution is that it is 
not defined with all of the precision that we apply to legislation, to 
laws, and the even greater precision that is applied to regulations to 
execute those laws. That is the genius of the Constitution.
  So, all of the generalized phrases, the ``cruel and unusual 
punishment,'' ``equal protection of the laws,'' and other generalized 
statements have served us very well for over 200 years. Certainly for 
words like ``flag,'' which I suggest has a pretty specific meaning, and 
even ``desecration,'' which is less so, it is possible to interpret 
those words in a meaningful and consistent way, particularly, as was 
noted earlier, if we amend the proposal here to provide for the Federal 
Government, the Congress, rather than the States, to adopt the 
legislation that would provide for the protection of the flag.
  So, much more will be said about this amendment. Senator Hatch will 
be here in a moment to discuss the amendment in more detail, to explain 
the reasons why the Judiciary Committee was able to pass it out with 
such an overwhelming majority.
  I am going to close by quoting from Chief Justice Rehnquist in his 
dissenting opinion from the decision in the Texas versus Johnson case, 
which precluded the Congress and the States from any longer protecting 
the flag. I think these words are appropriate as we think about the 
possibility that American soldiers will again be sent to foreign lands 
to fight, and the concern for those people who we put in harm's way, 
people who defend the ideals of our country. It is appropriate to 
reflect upon the value of the flag as a symbol to those people.
  Let me quote again, as I said, from the dissenting opinion of Justice 
Rehnquist in Texas versus Johnson. He said:

       At Iwo Jima, United States Marines fought hand to hand 
     against thousands of Japanese. By the time the Marines 
     reached the top of Mt. Suribachi they raised a piece of pipe 
     upright and from one end fluttered a flag. That ascent had 
     cost nearly 6,000 lives.

  Mr. President, that sacrifice could never be put adequately into 
words, but the flag symbolizes perfectly what words cannot describe. 
And it is that symbol that we see when we go to the monument just a 
couple of miles south of here and see the flag being raised over Mt. 
Suribachi that recalls so many memories and evokes so many emotions 
among Americans, that we come to the conclusion that this one very 
special symbol of America and everything for which it stands should 
receive minimal protection by the people of the United States. That is 
why I urge my colleagues to follow the lead of the House of 
Representatives and submit this question to the people of the United 
States to determine whether or not they want to amend the Constitution 
to protect the flag from desecration.
  Mr. President, I yield the floor to Senator Roth. At the time that 
Senator Hatch comes, he will speak further to the issue of the flag.
  The PRESIDING OFFICER. The Senator from Delaware.
  Mr. ROTH. Mr. President, first of all, let me express my appreciation 
to the distinguished Senator from Arizona for his courtesy and 
compliment him on his most eloquent statement.
  Mr. President, I ask unanimous consent to speak as in morning 
business.
  The PRESIDING OFFICER. Without objection, it is so ordered.

                          ____________________