[Congressional Record Volume 141, Number 195 (Friday, December 8, 1995)]
[Senate]
[Pages S18272-S18286]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




               FLAG DESECRATION CONSTITUTIONAL AMENDMENT

  The Senate continued with the consideration of the joint resolution.
  Mr. KERREY addressed the Chair.
  The PRESIDING OFFICER. The Senator from Nebraska.
  Mr. KERREY. Mr. President, I come to the floor to speak on Senate 
Joint Resolution 31, the proposed resolution that would present to the 
States the opportunity to amend the U.S. Constitution for the 20th 
time. It is a very straightforward, simple proposal that I believe is 
not necessary and would, indeed, create an environment that would 
produce, potentially, the opposite of that which we seek to produce, or 
at least, as I hear, proponents of this amendment are seeking to 
produce--and that is, that our people have at least one symbol that 
they respect, that we have a unifying symbol, which is our flag, and 
that the flag creates, as a consequence of our reverence for it, a 
sense of national purpose, at least in that one instance.
  This proposal, Mr. President, I believe, is well intended in that 
regard. If I were to identify the thing that troubles me the most about 
our country today, it is the question of whether or not we are 
developing the kind of personal character that is needed for the 

[[Page S 18273]]
Nation to have the courage and the strength to respond to whatever may 
happen to us in the future. That kind of individual character 
development requires a considerable amount of effort and attention not 
just on the part of young people who are working to acquire it, but 
adults who are working to try to help them. I note, in particular, that 
this proposal is a top priority of the American Legion and Veterans of 
Foreign Wars and the several other service organizations. In both the 
VFW and American Legion's cases, they have as a top priority as well 
working with young people to help them acquire the capacity to be good 
citizens, to respect their country, to respect their flag, to respect 
their role in a free and independent nation and the requirements that 
fall to us as individuals in a free and independent nation.

  The loss of respect for not just the flag but for many other things 
in our country today troubles not just members of the Legion but 
troubles almost anybody who is an observer of American life today.
  I know a couple of days ago, Senator Lieberman and Senator Nunn, 
along with former Secretary of Education Bill Bennett, made a public 
presentation of proposals to try to deal with the deterioration in the 
quality of presentations made on daytime broadcast television.
  I listened a couple weeks ago to Senator Nunn on the floor go through 
some things being broadcast on daytime television, and I had a feeling 
I was on a different planet. Most of us in this body probably do not 
watch much daytime television, and it was shocking to hear the sorts of 
things that were being not just discussed, but offered as being OK, 
offered as being acceptable, offered as being sort of a legitimate kind 
of behavior.
  This deterioration in the quality of our character is a great 
concern. I see it as a principal motivator behind what I consider, as I 
said, to be a well-intended proposal.
  Mr. President, one of the things I think citizens should understand 
as we consider this constitutional amendment is that our flag is 
already protected. You cannot burn or desecrate our flag. If it is a 
flag that I own personally, you cannot desecrate my flag. You certainly 
cannot desecrate a flag that you and I own. That is our flag. A flag 
flying over Iwo Jima, the flag that flies at half-mast today around the 
Washington Memorial, flags at cemeteries, flags that we own. That is 
our flag. You cannot desecrate that. It is a violation of current law 
to desecrate in any fashion, to approach in any fashion that would be 
desecration of our flag under current law.
  What this legislation proposes to do is say not only are we going to 
protect our flag, we are going to protect someone else's flag from us.
  If an individual in their home, for example, has a flag in their home 
and a law is passed, say, in the State of Nebraska, as I think it 
probably would be, saying that desecration of a flag is a violation of 
the law, someone could call up and report and say, ``Gee, I saw my 
neighbor do something with the flag in their home and I think it is a 
violation of law. I think what they were doing with their flag in the 
home is a violation of the law, and I think you should investigate and 
make sure they are not desecrating their own flag inside of their 
home.''
  Mr. President, I genuinely believe this is going to set off and 
create the very sort of division and the very sort of problem that we 
seek to avoid.
  I think it is, again, a well-intended constitutional amendment, but I 
for one do not look forward to an opportunity where the people of this 
country are debating at the local level whether or not it is a 
desecration of our flag to have someone sewing the flag on their pants. 
It may end up being if you are driving down the highway going from, 
say, California to Florida, it may be legal to have a pair of pants 
with a flag on it in California; it may be illegal in Texas or 
Mississippi or vice versa.

  One may have to get from AAA information about what the various flag 
ordinances are from State to State. I think that will, rather than 
causing us to deepen our respect for the flag and using it as a symbol 
to inspire us--not just us as adults but to help us inspire our young 
people to consider the sacrifices that have been made under that rather 
glorious symbol--rather than inspiring us, it is apt to cause us to 
deteriorate into an argument that, frankly, I view as something that 
will produce a negative, not a constructive, result.
  This constitutional amendment does not protect our flag. Our flag is 
already protected. What this does is say it will extend the protection 
of our flag to the protection of somebody else's flag that they have in 
their home in any way, shape or form. It will set off a debate about 
whether or not the Government has the right to come in, and if it is 
somebody else's property, take action to protect all of us or what they 
might be doing with their flag.
  The next thing I say, Mr. President, if the flag was not revered, as 
it clearly is, if it did not set off such a strong emotional reaction, 
I think a majority of Americans who have experienced in some fashion 
people giving of themselves--if not giving of their lives--as a 
consequence of being inspired by that flag, if it was not already 
revered, if there really was a threat to our flag, you would see a 
substantial amount of instances out there where people were, as a part 
of expressing their anger with their country or as part of expressing 
their anger with something that their Congress is doing or that their 
Government has done to then, they would be setting the flags on fire. 
They are not.
  The reason they are not is that they know there is a taboo that you 
are breaking, that you are violating something holy, and if you are 
trying to score a point, if you are trying to persuade somebody of your 
point of view, the last thing you want to do is to take a flag that 
belongs to you and desecrate it in any fashion, or let it traipse along 
the ground, trample it in any way, disrespect the flag at all.
  Mr. President, again, I know if the answer is no to this 
constitutional amendment, that Members are going to have to explain to 
citizens at home or to organizations at home, why are you not simply 
allowing us to express the will of the people? Why do you not just let 
the Constitution be amended?
  The clearest answer I can give is that I genuinely believe that this 
constitutional amendment will produce less respect for the flag, not 
more respect for the flag. It will make the flag an object of political 
controversy. We ought to use the flag to educate our young people, 
rather than telling them that they have to respect the flag at birth 
without explaining why, without talking to them and giving them the 
evidence that many of us as adults already have that causes us to tear 
up and feel emotional around the flag, rather than taking the time and 
saying: This is what the cold war was. This is what we did in World War 
I. There were 50 million people under arms in World War I, and 8 
million men died in World War I. This is what happened in World War II. 
This is what men and women of this country did in the Second World War. 
This is what our fighting people did, as well, in Korea, to stop the 
Communists from coming down from the North. This is what we did in 
Vietnam.
  Even as controversial and as difficult as it was, there was a 
movement, a desire to give the people of Vietnam freedom. Did it come 
off the tracks? Was it loused up? Yes. But people like myself who 
volunteered, who served, did so because we believed in freedom. That is 
what the flag does stand for. We should not require somebody to respect 
it by passing a law saying, If you violate the law, we will punish you. 
We should bring them into our presence and say: Understand what 
character is all about. You do not have character if your behavior is 
willful. You have character if your behavior is obedient--obedient to 
your parents, obedient to your church, to your synagogue, obedient to 
your country. That is what character requires us to do.
  If we simply pass a law and say you have to respect the flag, in my 
judgment, what we are going to do is turn the flag into a political 
instrument. We are going to diminish its value. We should use it as an 
object lesson when we are debating the budget, for example, when we are 
debating anything that requires us to put ourselves on the line, to 
take risks, to take a chance for freedom, to take a chance for someone 
else, to say: Rather than just taking care of myself, I am going to 
take care of somebody else.
  The description of the young people--and they were all in their late 
teens and early twenties, several hundred 

[[Page S 18274]]
thousand men who landed on the beaches of Normandy 51 years ago--if you 
hear that story, and I had the chance last year to hear it told in 
detail by men now in their seventies who were on that landing, who went 
on that voyage, there was no guarantee. Indeed, many arguments were 
given that this thing was going to be a failure. People well informed, 
leaders with great knowledge believed that it would fail, that it would 
not be successful.
  The sea conditions that day were rough. They got sick on the voyage 
to France, and they were terrified of the prospect of being killed by 
German artillery and German weapons. They knew that their lives could 
end the minute they stepped off of that landing craft. They knew that 
was a possibility.
  That is what we should do when it comes to the flag. When it comes 
time for talking to our young people, teach them why they should 
respect the flag. The reason why is that these men who serve and women 
who serve our country today are saying, We are going to be obedient to 
this country. We are going to follow orders because we believe that 
there is a moral principle at stake here, and that principle is giving 
ourselves to someone else, sacrificing for someone else, paying 
attention, being considerate, being willing to do things that are good 
for somebody else, rather than simply trying to figure out how to stick 
it to them, how to make them look bad, how to make them feel bad as 
well.

  The flag will not be a symbol that inspires us if we require respect, 
if we say to our young people: Now, we just amended our Constitution. 
Now we have a law on the books.
  There was no law on the books in 1941 when this Nation was attacked 
by the Japanese at Pearl Harbor. We did not require that of Americans, 
and say: Under penalty of the police coming into your home, if you 
desecrate our flag we are somehow going to take action against you. We 
knew what it meant to be patriotic. We knew that this Nation's freedom 
was at risk and this world's freedom was at stake and responded as a 
consequence.
  I have talked to many members of the Legion, the VFW, the DAV, the 
Vietnam veterans, American veterans, and many other veterans and 
citizens of Nebraska who say: Just let us amend our Constitution. Just 
let us pass a law. Let us do this. That is all we are asking, is for 
the opportunity to do it.
  I have to say I am not just sympathetic with that view, I believe I 
understand it. I understand what they are trying to do. They are 
concerned about the loss of respect. They are concerned about the loss 
of respect, not just for the flag--where, in fact, it may be one of the 
icons left in America where there is automatic respect--but the loss of 
respect for parents, the loss of respect for our leaders, the loss of 
respect for institutions, the loss of respect for one another; the 
unwillingness to be considerate, the unwillingness to be obedient, the 
deterioration in the value of serving someone else, of risking your 
life for someone else's freedom.
  I understand and believe it is a great challenge for this country to 
try to build character one person at a time, to say that we are going 
to reach to our youth and inspire them with a narrative of this 
country, the stories of this country. The sacrifice that led us to 
where we are today should cause anyone who pays attention to the 
history of the United States of America to say that our flag deserves 
the reverence that this constitutional amendment is attempting to give 
it with the force of law.
  It should be the force of our knowledge, the force of our conscience, 
the force of our willingness to give it back in kind that causes us to 
revere this flag, not the force of the police in our local community, 
not the force that we are afraid something bad is going to happen to us 
if we desecrate the U.S. flag.
  I hope when it comes time to vote that at least 34 Members of this 
body will vote against this constitutional amendment, not because we 
believe that the flag should not be revered, not because we are not 
concerned for the loss of respect for it and other institutions in this 
country, but for precisely the opposite reason. I hope this debate does 
not lead us down the road to converting the flag into a political 
object, which I deeply believe it will if we amend our Constitution.
  I hope we take some stock of ourselves, we read a recent assessment 
that was done about what our young people and our adults know about the 
history of this country, where we came from, how it was we got to where 
we are today. We see a daunting challenge ahead of us. Far too many 
Americans do not know how it is that we got to where we are today. Far 
too many Americans still believe that freedom is somehow free, that it 
is our birthright, and that we need do nothing to remain free. It is 
ours; we have a right to it; we can do whatever we want with it. We can 
act and behave in a willful fashion. We do not have to regard at all 
the feelings or lives not only of other people in our presence, but our 
future as well.

  I know the challenge that this constitutional amendment presents to 
colleagues is a rather substantial one. You fear you are going to be 
accused of not being in favor of protecting our flag if you vote 
against it. I hope, as I said, 34 Members will at least stand on this 
floor sometime next week when it comes up and say that because we 
respect this flag of ours, because we believe that it should be 
revered, because we believe that Americans should make the choice, the 
personal choice based upon a personal and active knowledge of what this 
flag represents, that they will say we do not need a law to cause us to 
behave in the fashion that we know is right. We do not need to amend 
our Constitution to get us to respect Old Glory.


                      Unanimous-Consent Agreement

  Mr. MACK. Mr. President, I ask unanimous consent the following 
amendments be the only amendments in order to Senate Joint Resolution 
31, and they must be offered and debated during Monday's session of the 
Senate: McConnell, relevant substitute; Hatch, two relevant amendments; 
Biden, relevant; Feinstein, relevant; Hollings, two relevant 
amendments.
  I further ask that at 9 a.m. on Tuesday, December 12, there be 1 hour 
40 minutes for closing debate, to be equally divided in the usual form, 
and the votes occur on or in relation to the amendments beginning at 
2:17 p.m., with the first vote limited to the standard 15 minutes and 
all remaining stacked votes limited to 10 minutes in length, with 2 
minutes for debate prior to the votes for explanation to be equally 
divided in the usual form.
  I further ask unanimous consent that following the disposition of the 
amendments, the joint resolution be read for a third time and a final 
vote occur immediately without any intervening action or debate.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. MACK. In light of this agreement, there will be no rollcall votes 
during Monday's session of the Senate and any votes ordered with 
respect to amendments and the final vote will occur beginning at 2:17 
p.m. on Tuesday, December 12, 1995.
  Mr. SHELBY. Mr. President, I strongly support Senate Joint Resolution 
31, which amends the Constitution to protect the flag of the United 
States from those who would desecrate it.
  The American flag is a national symbol of the values this country was 
founded on. Many Americans have fought and died to defend these values 
and this country. It is an insult to these patriots, their relatives, 
and all other citizens who hold this country dear, to burn or desecrate 
the symbol of our nation and our freedom.
  I certainly support the right of all citizens to freedom of speech, 
but that right has never been absolute in our country. That's why there 
are laws against libel, slander, perjury, and obscenity. Similarly, our 
freedom of political expression is also limited. No one can legally 
deface the Supreme Court building or the Washington Monument, no matter 
how much he or she might wish to protest a particular government policy 
or law. The American flag, as the symbol of all the great values this 
country stands for, deserves special protection under the Constitution. 
It simply is not necessary to commit an act of violence against this 
flag to register protest against the government. Passage of Senate 
Joint Resolution 31 will help ensure our national symbol receives the 
respect and protection it deserves. 

[[Page S 18275]]

  Again, Mr. President, I offer my strong support for Senate Joint 
Resolution 31 and I urge my colleagues to support it as well.
  Mr. COATS. Mr. President, today we consider a constitutional 
amendment which allows States to enact laws to protect the American 
flag. I am cosponsor of this amendment and I strongly believe that it 
is necessary to render this protection to the most important symbol of 
our Nation.
  The debate about the flag began in 1989 when the Supreme Court 
curiously determined that it was perfectly legal to burn the American 
flag as a form of political speech. This ruling led to shock and 
outrage from all across the United States. Congress immediately took 
action, passing a statute setting penalties for anyone who physically 
desecrates the flag. The Supreme Court ruled again that the Federal 
statute was unconstitutional, violating the first amendment.
  Unfortunately, the Senate failed to pass a constitutional amendment 
to protect the flag. Today, however, we are very near this goal, with 
56 cosponsors to the amendment.
  The amendment reads simply ``The Congress and the States shall have 
power to prohibit the physical desecration of the flag of the United 
States.''
  I feel an overwhelming mixture of regret and thanks--which is the 
substance of patriotism--when I consider the sacrifice of so many for 
the sake of America. This pride is rooted in one solid and 
extraordinary fact--the selflessness of thousands of men and women who 
have given their lives to preserve American freedom.
  I believe for the vast majority of Americans the flag intrinsically 
represents this pride. Americans do not blindly follow traditions. But 
we do care deeply about symbols--particularly that one symbol of ideas 
and values for which men and women have sacrificed and died in every 
generation. To desecrate the flag, I believe, is to desecrate the 
memory and make light of their sacrifice.
  Justice Stevens writing in dissent to the 1989 Supreme Court decision 
said:

       So it is with the American flag. It is more than a proud 
     symbol of the courage, the determination, and the gifts of 
     nature that transformed 13 fledgling colonies into a world 
     power. It is a symbol of freedom, of equal opportunity, of 
     religious tolerance, and of good will for other peoples who 
     share our aspirations. The symbol carries its message to 
     dissenters both at home and abroad who may have no interest 
     at all in our national unity or survival.

  There is a type of patriotism that is held so deeply that if finds 
expression in concrete things like a patriot's crippled body--or in 
bits of colored cloth. For men who have risked death in service of a 
flag it is more than just a symbol, it is sacrifice you can hold in 
your hand--or trample underfoot in contempt.
  Men and women who we ask to die for a flag have a right to expect 
that flag to be respected by those who benefit from their sacrifice. It 
is part of the compact we make with those who will serve. At the time 
of the Supreme Court decision, it was the law in 48 States. Since that 
time, 49 State legislatures have called for a constitutional amendment 
to prohibit physical desecration of the flag. No other amendment in our 
history has had the same degree of support in State legislatures.
  Tolerance is an important thing in a free and diverse society. 
Agreement must never be a prerequisite for civility. But tolerance can 
never be rooted in the view that nothing is worth outrage because 
nothing is worth our sacrifice.
  In Chief Justice Rehnquist's stinging dissent to the court decision, 
labeled flag burning as ``conduct that is regarded as evil and 
offensive to the majority of people--in a category with--murder, 
embezzlement or pollution.'' The Court's ruling, he noted, ``found that 
the American flag is just another symbol, about which not only must 
opinions pro and con be tolerated, but for which the most minimal 
public respect may not be enjoined. The Government may conscript men 
into the Armed Forces where they must fight and die for the flag, but 
the Government may not prohibit the public burning of the banner under 
which they fight.''
  Yes, we must be tolerant but we must never adopt and enervating and 
cowardly disdain that strips us of patriotic conviction and dulls our 
ability to be offended by the desecration of vital symbols. ``In the 
world it is called tolerance,'' wrote author Dorothy Sayers, ``but in 
hell it is called despair * * * the sin that believes in nothing, cares 
for nothing, enjoys nothing, finds purpose in nothing, lives for 
nothing, and remains alive because there is nothing for which it will 
die.''
  Mr. FORD. Mr. President, yesterday we marked the bombing of Pearl 
Harbor. Many of us can still remember the gripping of our hearts 54 
years ago today, as the realization spread over us that nothing would 
ever again be quite the same. Yet, I think it is fair to say that there 
is already a whole generation of Americans who have no grasp of the 
meaning World War II has for so many of us. Young people who might 
never hear a parent or a grandparent tell of the time they felt their 
commitment to a way of life being tested, of a time they could finally 
close their eyes and rest, knowing an important fight had been won on 
the world stage.
  But when those same young people turn their eyes toward this 
country's flag, I know they understand that in its fabric was woven the 
dramas of thousands of battles fought on the shores of foreign lands 
and over the lunch counters or Main Streets of our own home towns.
  There are many good reasons for protecting the unique symbol of the 
American flag, from the basic liberties it represents to the promise of 
a better future it holds out. But some of the greatest reasons for 
protecting the flag lie in its ability to bind one generation to the 
next in their love and respect for this country, so that even as the 
memories of yesterday's battles begin to fade, the importance of what 
they secured continues to hold fast in our hearts.
  A flag that flies proudly in this country serves as a reminder of how 
war can change the course of a life, of a nation, of a world, so that 
even individuals who were never there, who might never have heard the 
stories, recognize that those hours of destruction and suffering have 
altered the future irrevocably, and that their own liberty was a hard 
won prize.
  It follows then that a desecrated flag mocks the millions who have 
reached out or fought for all that our flag symbolizes, from the basic 
liberties written into our Constitution to the dreams of a better 
future for their families.
  That's why I believe so strongly that the physical integrity of the 
American flag must be protected. Back in 1989, the U.S. Supreme Court 
declared unconstitutional a Texas flag desecration statute, ruling that 
flag desecration was free speech protected under the first amendment.
  In response to that decision, the Senate overwhelmingly passed the 
Flag Protection Act, which was also declared unconstitutional. The 
Supreme Court's action made it clear that a constitutional amendment is 
necessary for enactment of any binding protection of the flag.
  Up to this point, neither House of Congress has been able to garner 
the two-thirds super majority necessary for passage of a constitutional 
amendment. But because grassroots support for this amendment continues 
to grow, I've joined with Members on both sides of the aisle to again 
try passing this amendment. I'm hopeful that this time we'll get the 
necessary votes.
  Clearly no legitimate act of political protest should be suppressed. 
Nor should we ever discourage debate and discussion about the federal 
government. The narrowly written amendment gives Congress and the 
States the ``power to prohibit the physical desecration of the Flag of 
the United States,'' without jeopardizing those rights of free speech.
  On July 14, 1861 a Union soldier wrote his last letter to his wife. 
He said:

       My courage does not halt or falter. I know how American 
     civilization now bears upon the triumph of the government and 
     how great a debt we owe to those who went before us through 
     the blood and suffering of the Revolution, and I am willing, 
     perfectly willing, to lay down all my joys in this life to 
     help maintain this government and pay that debt.

  Today, our task here in the Senate seems trivial in comparison. But 
if we want the flag that hangs in school rooms, over courthouses, in 
sports stadiums and off front porches all across America, to continue 
symbolizing that same commitment to country, then it is a challenge we 
cannot fail to meet. 

[[Page S 18276]]

  Mr. President, I urge my colleagues to join me in voting in favor of 
this important legislation.
  Mr. President, I yield the floor, and I suggest the absence of a 
quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. WARNER. 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. WARNER. Mr. President, I see present the distinguished Senator 
from Ohio on the floor, and I just wish to inform him that I will only 
be speaking for about 2 or 3 minutes.
  Mr. President, I am a cosponsor of the flag protection constitutional 
amendment, and I am privileged to join my colleagues in cosponsoring 
this very important piece of legislation.
  It is of tremendous interest to the constituents of the State of 
Virginia, and particularly those who are members of the American Legion 
and the VFW--both organizations I am privileged to be a member of--and 
other service organizations. I want to salute their contribution and 
support toward this legislation.
  Today, as I move about the Halls of the U.S. Senate, I have had the 
opportunity to meet members of those service organizations who come 
here today to speak to Members and otherwise encourage the strongest 
support for this legislation. I salute them.
  Those who have been privileged to wear the uniform of our country 
have a constant--what I call--trustee relationship to that flag, a very 
special trustee relationship.
  I served briefly in World War II in the U.S. Navy, and then for a 
second period of active duty service in the U.S. Marines during the 
Korean war with a brief period of service in Korea. I have always 
looked upon those opportunities as a privilege. I would not be a U.S. 
Senator today had it not been for the training that I received both in 
the U.S. Navy and in the U.S. Marine Corps. I have always felt that my 
duty here as a U.S. Senator as one to pay back--particularly those 
young men and women now wearing the uniform of our country--all that I 
have received by way of not only education but the first lessons of 
what leadership means.
  I served my country very humbly--never to be added to the columns of 
those who served with great valor. But I did volunteer twice to do my 
duty, as others saw fit.
  That is all a part of what we are incorporating in the support of 
this resolution because those of us who served remember so well the 
many friends that marched with us, or flew with us, or sailed with us--
whatever the case may be--who paid the ultimate price, many others who 
came back with loss of limb and still bear the scars of war.

  So I wish to pay special recognition to all and to speak in a very 
humble manner on their behalf and thank them for their contribution in 
making possible this legislation and what I hope will be the adoption 
by the Senate.
  I yield the floor.
  Mr. GLENN. Mr. President, to take up the issue before us on a 
constitutional amendment regarding the flag is a very difficult thing 
to do. The different expressions on the floor are certainly ones to 
consider whether people are for the amendment or against the amendment. 
It is very difficult because the feelings run so deep in both 
directions. I do not know whether there is anyone who is still on the 
fence with regard to their views on this matter.
  Until today, I have not said a much about this. I talked about it in 
the Chamber several years ago when we had the issue before us. But I 
think people who have very deep feelings on this can have their 
feelings and we respect those feelings. I do not quarrel one iota with 
people on the other side of the aisle who have their feelings for 
whatever reason. But I do think there is a danger here. I think the 
danger is that the flag does not need the protection in this argument. 
What needs protection is really the Bill of Rights, from those who 
would look at it rather superficially from my view.
  So until today, I have tended to hold my tongue and have kept my 
peace about this issue before us because it is no fun being attacked or 
being labeled as unpatriotic or a friend of flag burners. And I can 
assure you that I am neither simply because I have doubts about the 
wisdom of a constitutional flag burning amendment. I am not taking the 
floor to speak about this issue, as I say, because some of our feelings 
about the flag are difficult to discuss. Feelings run very deep and 
very strong. Let me make a few things very clear up front.
  We all, of course, love the flag, and I would say nobody in this 
Chamber or this country loves our flag more than I do. We all can make 
that same statement on the floor. I fought hard for this flag through 
two wars and representing the country in the space program, and so on. 
I am both honored and proud that few people in this Nation have been 
able to take this flag where I took it, at least on the first space 
flight. That is the first thing I selected when I had a personal 
preference pack, as they called it, along on the trip. I took along 
little silk flags so I could give them to my children, and they remain 
among my children's most cherished possessions to this day.
  I also know, more importantly, from my own personal experience that 
every last fiber, every stitch, every thread in that flag can be looked 
at as standing for someone who gave their life to defend it. At my age, 
I can tell you that I probably have more friends buried over in 
Arlington Cemetery bearing silent witness to our flag as I do bearing 
public witness to it in the world of the living. Maybe that is why I 
have so little patience and even less sympathy for those pathetic and 
insensitive few who would demean and defile our Nation's greatest 
symbol of sacrifice, the flag of the United States of America.
  Those are some of the reasons I have kept silent until now. It is now 
clear that a legislative alternative to amending our Constitution is 
probably not going to be possible before we have to vote on this. It is 
now equally clear that those of us who question the wisdom of watering 
down our Bill of Rights have no choice but to stand up to the political 
mud merchants in some respects, from some of the comments that have 
been made, and to speak out against those who would deal in demagoguery 
on this issue.
  It is now clear that those of us who remember and care deeply about 
the sacrifices made on behalf of freedom have a special responsibility, 
and we do, to point out that it would be a hollow victory, indeed, if 
we preserved the symbol of our freedoms by chipping away at those 
freedoms themselves. That is the important choice here. Are we to 
protect the symbol at the expense of even taking a small chance at 
chipping away at the freedoms that that symbol represents?
  On that score, let us be honest with each other and with the American 
people. The flag is this Nation's most powerful and emotional symbol, 
and it is. I have been here with Senator Kerrey once in the Chamber 
when he said he thought in Nebraska they did not need this because if 
somebody started to burn a flag, they would take care of it themselves 
right then and there and on the spot. And I agree with that. Back home 
in Ohio, we have almost 11 million people, and I think there are very 
few, who, if they saw a flag being burned, would not be willing to take 
action against that person or persons. It is a gut feeling. I feel that 
same way myself, and I would join into that.
  But we have to think a little longer score on this, it seems to me. 
So the flag is the Nation's most powerful and emotional symbol, and it 
is our sacred symbol. It is a revered symbol, but it is a symbol. It 
symbolizes the freedoms we have in this country, but it is not the 
freedoms themselves. And that is why this debate is not between those 
who love the flag on the one hand and those who do not on the other, no 
matter how often the demagogs try to tell us otherwise. Everyone on 
both sides of the aisle politically within this Chamber and everyone on 
both sides of this debate loves and respects the flag. The question is 
how best to honor it, to honor it and what it represents.
  Those who made the ultimate sacrifice for our flag did not give up 
their lives for just a piece of cloth, albeit red, white, and blue, and 
it had some stars on it. Not just for the flag. They died because of 
their allegiance to this country, to the values and the rights and 
principles represented by that flag and to the Republic for which it 
stands.
  Without a doubt, the most important of those values, the most 
important of 

[[Page S 18277]]
those values, rights and principles is individual liberty, the liberty 
to worship and think, to express ourselves freely, openly and 
completely, no matter how out of step those views may be with the 
opinions of the majority. And that is what is so unique about this 
country of ours--unique among all the nations around this world--
Britain, France, you name them, any place where they have democracy, 
but ours is especially unique in that regard.
  That commitment to freedom is encapsulated, it is encoded in our Bill 
of Rights, perhaps the most envied and imitated document anywhere in 
the world. The Bill of Rights is what makes our country unique. It is 
what has made us a shining beacon in a dark world, a shining beacon of 
hope and inspiration to oppressed peoples around the world for well 
over 200 years. It is, in short, what makes America America.
  You may look back a little bit. You know, the Bill of Rights came 
into being because the States at that time were not going to approve 
the Constitution unless we had some of these additional protections 
included. And so those additional protections that were to be included 
became known as the Bill of Rights. They are the first series of 
amendments to the Constitution. Those States were only prepared to 
accept the Constitution with the understanding that these additional 
protections for each individual and each individual's rights were 
incorporated in that Constitution.
  That is how the Bill of Rights came to be. The very first item in 
that Bill of Rights, the first amendment in it to our Constitution has 
never been changed or altered even one single time. In all of American 
history, over 7,000 attempts have been made to put amendments through. 
Just 27 have gotten through, and there was not a single time in all of 
American history when this was changed, not during our Civil War even, 
not during the Civil War when passions ran so high and this Nation was 
drenched in blood like few nations have been throughout their history. 
That Constitution was not changed. It was not changed during any of our 
foreign wars. It was not changed during recessions. It was not changed 
during depressions. It was not changed during scares or panics or 
whatever happened in this country.
  That Bill of Rights has not been changed even during times of great 
emotion and anger like the Vietnam era, when flags were burned or 
desecrated far more than they are today. Our first amendment was 
unchanged, unchallenged, as much as we might have disagreed with what 
was going on at that time, as abhorrent as we found the actions of a 
lot of people at that time in their protests against the Vietnam war. 
But now we are told that unless we alter the first amendment, unless we 
place a constitutional limit on the right of speech and expression that 
the fabric of our country will somehow be weakened. Well, I just cannot 
bring myself to believe that that is the case.
  I think once the American people think this issue clear through, I do 
not think they will buy it, either, whether this passes or not. I do 
not think the American people will buy it. Once you get past the first 
gut feeling, if you saw a flag burning, of doing something about it, as 
I would--so many of the people who visited me in my office the last 
couple of days would do the same thing--would take action themselves 
against such activity. Much as that might be the case and satisfying 
though that might be, I think we have to look at the long term on this, 
get by the emotion of that moment and think what it is we are dealing 
with.
  What we are dealing with is the Bill of Rights, dealing with that 
first amendment to the Bill of Rights. We are saying for the first time 
in our country's 200-year history, we are going to make, albeit maybe 
just a tiny crack, but it will be a tiny opening that could possibly be 
followed by others.
  That first amendment says, ``Congress shall make no law respecting an 
establishment of religion, or prohibiting the free exercise thereof;'' 
or the second item, ``or abridging the freedom of speech, or of the 
press; or the right of the people peaceably to assemble, and to 
petition the Government for a redress of grievances.''
  The part we are dealing with today is freedom of speech--freedom of 
speech. We are talking about freedom of expression. The Supreme Court 
has held on two separate occasions that no matter how much the majority 
of us, 99.999 percent of the people of this country disagree, that 
tiny, tiny, fractional, misguided minority, still under our Bill of 
Rights they have the right to their expression. Their expression is 
looked at as coming under that freedom of speech.
  You have to look at it from that standpoint. Are we going to even 
make a tiny opening in changing that first amendment that could be 
followed on, if we have a tiny, tiny, tiny minority that we do not 
agree with their religious beliefs, if we have a tiny, tiny, tiny 
minority that we do not agree with what the press says? There is no 
body more critical in this whole country of the press than the people 
in this very room, and me included along with them. We do not like some 
of the things that happen in the press.
  Do we want to open even a tiny, tiny, tiny chance that they might 
restrict our ability to assemble peaceably? And do we want to take a 
tiny chance that we would not be able to petition our Government for 
redress of grievances? Those are the things that are covered in that 
first amendment, known as the Bill of Rights, along with the other 
amendments that were incorporated before the Constitution was signed, 
before it even came into being.
  I think there is only one way to weaken the fabric of our country, 
our unique country, our country that stands as a beacon before other 
nations around this world. You know when you think about someone 
burning the flag, I truly do feel sorry for them. I honestly do. My 
initial gut reaction would be to stomp them, go after them, get them, 
stop the burning, and so on. It would be a natural reaction that so 
many people would have as well. I know all the ones that visited my 
office yesterday, I would not have to ask them to do that same thing.
  But that would be one way of showing our unhappiness with these few 
misguided souls. At the same time we would be taking action against 
them, I truly would feel sorry for them. Have they never known the 
feeling inside of looking at that flag and being proud? Have they never 
been able to apparently work in any way for their country or the 
military in war or peace, either one, in which they were called to take 
action for a purpose bigger than themselves?
  I say this morning that is one of the most exhilarating things that 
can ever happen to a man or woman, to be able to represent their 
country and be called to something, to a purpose bigger than 
themselves. I feel sorry for people who have never had that experience. 
It is something you cannot really explain.
  We had a parade once I was involved in down on Pennsylvania Avenue 
and I addressed a joint meeting of Congress down at the other end of 
the Capitol, and everybody was waving flags out there. Everybody was 
waving flags. My comment when I opened down there, I said it just meant 
so much to me to see all the flags waving coming down Pennsylvania 
Avenue. It made a hard-to-define feeling within that I could not really 
describe in words, but I hope that we never lose that hard-to-define 
feeling as a nation, as individuals and a nation. We would be a lesser 
country if we lost that exhilaration, that feeling of pride when we see 
a flag and see it displayed and see people's excitement.
  But I feel sorry for those people who have never known that feeling. 
I truly do. There would not be any problem with people burning the flag 
if everyone had that individual experience. But it is by retreating 
from the principles that the flag stands for--``principles'' underlined 
16 times--principles that this flag stands for, that if we retreat from 
those principles, that will do more damage to the fabric of our Nation 
than 1,000 torched flags ever could do.
  The first amendment--I read it a moment ago--says simply and clearly: 
``Congress shall make no law * * * abridging the freedom of speech''--
freedom of speech. For 200 years, in good times and bad, in times of 
harmony and times of strife, we have held those words to mean exactly 
what they say. That ``Congress shall make no law''--no law--that will 
in any way cut back on that freedom of speech, meaning freedom of 
expression, as the Supreme Court has said. 

[[Page S 18278]]


  And now, ostensibly to prohibit something that very rarely happens 
anyway, we are asked to alter those first amendment words to mean that 
Congress may make some laws--little ones--some laws restricting freedom 
of expression.
  I know the other side says, ``Well, what we're doing is putting this 
back to the States.'' They want us to just put it back to the States 
and let the States decide this. I do not care for that approach.
  Let me tell you, we are one Nation, one Nation under God, 
indivisible. It does not say we are going to split things up and we 
will treat our flag differently and the Constitution will only apply 
here, the Bill of Rights only applies one way in one State and a 
different way in another State. I do not agree with that.
  So I do not want to see us make some laws, even tiny laws, even the 
potential of a tiny little crack in that Bill of Rights that would 
restrict freedom of expression. I agree with, I believe the man's name 
is Warner. He is a lawyer here in town. He was in the Marine Corps and 
prisoner of war. One of his captors brought to him a picture of a flag 
burning in this country and said, ``There, that shows what the people 
think; that shows that it is no good. See this.''
  He said, ``That is what freedom is all about. That is what expression 
is all about,'' or words to that effect. I did not bring his exact 
words here. He said he was proud of it, and it completely crushed his 
captor. The fellow did not know how to react to that.
  Yet, he was right. We can say that this time this law might be about 
flag burning. The next form of political expression that we might seek 
to prohibit would be in the religion area. There are lots of religions 
today. Splinter groups I do not agree with at all and, I would say, 
99.99 percent of the people of the country would not agree with them at 
all. But do we make any restriction on how they can practice their 
religion? No.
  I do not like a lot of things the press writes today, but do we make 
any tiny little restriction on the press to pull back on what they can 
do? Or assemble or petition the Government, the other things that are 
covered in that first amendment.
  So we can say this time the laws would be about flag burning or flag 
desecration, to use the exact words. But what will the next form of 
political expression be that we seek to prohibit, if we start a crack 
that has not occurred, not in the 200-plus year's history of this 
country?
  I do not think there is necessarily a slippery slope out there that 
if we make this little crack here that everything is going to go 
downhill from there and away we go and we are going to see freedom of 
speech restricted, everything else and we do not know where that slide 
will end. I do not think that will happen, but do we want to take a 
chance that any misguided group of people in the future would even 
think about going to that end? And for what? For a threat that, at 
least in current years, is practically nonexistent?
  I had been told there was not a single flag burning this year. I was 
corrected yesterday, and the people visiting me said they believe there 
were three they had documented this year. That is one per approximately 
90 million people in this country. We are about 260 million, close to 
270 million. Even if those are true, and I do not question it. The 
gentleman who told me seemed to know what he was talking about, so I 
accept his version of this. But we are talking about one incident out 
of 90 million people. So I find it a little difficult to think that 
this is a very major problem at the moment.
  But some will ask, is not desecrating the flag obnoxious, abhorrent 
and offensive to most, and yet it is within our right? You bet. I find 
it just as obnoxious and abhorrent as any person possibly can, but I 
try to look beyond that.
  I said before, if I was present when somebody started to burn a flag 
right there, I have no doubt whatsoever I would join the many others 
here, and the galleries, who would take whatever action to stop it, 
physical or however we had to do it.
  But then you have to think beyond this. Do we want to change the 
Constitution of the United States and take even a chance of something 
that is 1-in-a-90 million shot of our citizens doing something like 
this, if that is the number from this year?
  Of course, desecrating the flag is offensive. It is offensive to the 
vast majority of Americans. Almost everybody. But that is precisely the 
reason we have a first amendment, to protect the kinds of political 
expression that are offensive and out of step with majority opinion in 
this Nation.
  The majority opinion said that we should not have civil rights in 
certain parts of this country. We went ahead with it. That was a much 
more pervasive problem than this is. But you do not need a first 
amendment to protect the expression of political views with which 
everyone else agrees. That is not what we need the first amendment for.
  You need the first amendment to protect minority points of view that 
the vast majority of people disagree with. That is what the protection 
is all about, and that is what sets this country of ours completely 
apart from any other nation in the world.
  So I think we have to get beyond just the visceral gut reaction of 
someone burning a flag and think beyond that as to what the 
implications are if we take action against those poor, misguided souls 
that I truly do feel sorry for, for reasons I spoke about a moment ago. 
They deserve to be protected. I may not like it, but they deserve to 
have their rights protected as much as I deserve to have my rights 
protected.
  So the amendment is to protect minority points of view with which the 
vast majority of people disagree. Protecting the minority viewpoints 
against the tyranny of the majority is exactly the point of the first 
amendment and why the Founders only agreed to approve the Constitution 
with the understanding that it was to be included.
  It has often been said it is possible to detect how free a society is 
by the degree to which it is willing to tolerate and permit the 
expression of ideas that are odious and reprehensible to the values of 
that society. You and I and a majority of our fellow citizens find flag 
burning and desecration to be vile and disgusting. But we also find 
Nazis marching in Skokie, IL, or the Ku Klux Klan marching and burning 
crosses in Selma, AL, to be vile and disgusting. But if the first 
amendment means anything at all, it means that those cruel and poor 
misguided souls, many of them I think demented, have a right to express 
themselves in that manner, however objectionable the rest of us may 
find their message.
  But what about the argument that the first amendment is not and has 
never been absolute, that we already have restrictions on freedoms of 
expression and that a prohibition on flag burning would simply be one 
more? After all, it said freedom of speech does not extend to slander, 
libel, revealing military secrets or yelling ``fire'' in a crowded 
theater. That is true. To the extent that flag burning would incite 
others to violence in response does not constitute a clear and present 
danger, and that is what the Supreme Court has said in their language. 
That is their language. The difference here is whether it is a clear 
and present danger that we have every right to try to avert.
  But this argument misses a key distinction, and that distinction is 
that all those restrictions on free speech I just mentioned threaten 
real and specific harm to other people, harm that would come about 
because of what the speaker said, not because of what the listeners 
did.
  To say that we should restrict speech or expression that would 
outrage a majority of listeners or move them to violence is to say that 
we will tolerate only those kinds of expression that the majority 
agrees with, or at least does not disagree with too much. That would do 
nothing less than gut the first amendment.

  What about the argument that flag desecration is an act and is not a 
form of speech or expression that is protected by the first amendment? 
Well, I think that argument is a bit specious. Anybody burning a flag 
in protest is clearly saying something. They are making a statement by 
their body language, and what they are doing makes a statement that 
maybe speaks far, far louder than the words they may be willing to 
utter on such an occasion.
  They are saying something, just the same way as people who picket, or 


[[Page S 18279]]
march in protest, or use other forms of symbolic speech are expressing 
themselves. Indeed, if we did not view flag burners as something we 
find offensive and repugnant, we surely would not be debating their 
right to do so.
  Let me say a word about something that has gotten short shrift in 
this debate, something we should consider very carefully before voting 
on this amendment. I am talking about the practical problems with this 
amendment. Let us say we pass it, the States pass it, it becomes an 
amendment, and we change the Constitution. Then what a nightmare we 
would have enforcing it.
  First off, we are going to have 50 different interpretations. There 
is not going to be just one Nation on the Constitution or on the Bill 
of Rights anymore. There are going to be 50 little interpretations of 
what is in that Bill of Rights. I do not want to see that happen.
  But if Congress and States are allowed to prohibit the physical 
desecration of the flag, how precisely are we defining the flag? We do 
not have an official flag, as such, with an exact size, type, kind of 
ink, dyes, fabric, and the whole works. There is no official flag, as 
such. So does this amendment refer to only manufactured flags of cloth 
or nylon of a certain size or description, such as the ones we fly over 
the Capitol here and send out? I send out dozens of those every year, 
and I am very proud to do it. There is no official flag, so what size 
are we talking about? Does it refer to the small paper flags on a stick 
we hand out to children at political rallies or stick in a cupcake at a 
banquet? Those flags are often tossed on the floor or in a garbage can 
at conclusion of an event. I really do not know. I am asking these 
questions here.
  How about back in 1976 when we had the bicentennial? At that time, 
they were selling flag bikini swimsuits for women and boxer shorts for 
men. I remember seeing a rock concert one day, and at that time it was 
an abhorrent thing to me. The guy is strumming away on his guitar, and 
all at once he takes his pants off on the stage on that great occasion 
because he had flag shorts on underneath. How about bikinis? Should we 
permit flags to be worn as bikinis? We know they get soiled once in a 
while, too. Think of that. I do not want to use all these improper 
words in the Senate Chamber, but do we want someone possibly urinating 
on the flag of the United States, worn as shorts or a bikini? I do not. 
I find that abhorrent. But are we going to restrict that? I probably 
would like to restrict that, I can tell you.
  How are we going to define this as to what happens? How about the guy 
who jogs down the street with a flag T-shirt on and becomes drenched 
with sweat? I do not like that, but is it desecration? He is probably 
proud that he is wearing the flag.
  How about a guy that has an old flag with grease all over it, and he 
wants to destroy it. You are supposed to burn it to destroy a flag. So 
he holds it up and he is going to burn it and then he says at the same 
time, ``I am doing this because I do not like the tax bill they passed 
last year, and I am doing it in protest. I am burning the flag because 
I do not like what they did in Washington.'' Are we going to lock him 
up? Remember, the proper way to destroy a flag that is old or has 
become soiled is to burn it. But what if he does it in protest? What 
was his intent? Every lawyer will tell you that the toughest thing to 
prove is intent.
  We could go through example after example after example. We have a 
postage stamp now that has a flag on it. I was proud when they did 
that. I wrote a letter complimenting the Postmaster General for that, 
putting that on every piece of mail going out through the country, to 
remind people that we have a flag of the United States that stands for 
something; it stands for principles. What if you take a postage stamp 
flag and put a match under that thing and it burns up and you say, 
``There,'' and you stomp on it? Can you be arrested under the new 
legislation?
  I do not know what the courts would do in a case like that. We can go 
on with all kinds of examples here of how this would be very difficult 
to administer, and it would be subject to 50 different interpretations. 
I might be able to do something in Ohio, and I drive across the Ohio 
River to Kentucky, West Virginia, or Pennsylvania and the same thing 
might be illegal. I could be arrested for doing something across the 
river, if we are going to have 50 different State interpretations along 
this line.
  So I come to the floor today to say that I think--and I regret having 
to feel that this amendment should and must be defeated, but I really 
feel that the dangers from it far outweigh the threat that we have to 
the flag from those 1 in 90 million, if the figures are correct, 
Americans that have burned a flag in protest this year, as I was told 
yesterday. I had been told there were no examples this year, but it was 
corrected, and I was told there were three certified examples of flag 
burning. That means 1 for every 90 million Americans.
  Is this something we need to correct as a major problem for this 
country with an amendment to the Constitution of the United States of 
America, which guarantees the freedom of speech and of expression in 
the Bill of Rights? It was not going to be signed by the States unless 
that was included. They felt that strongly about protecting the freedom 
of people to express themselves.
  I think history and future generations alike will judge us harshly, 
as they should, if we permit people who would defile our flag--or 
whatever disrespect they pay to the flag, whether they were stomping on 
it, or burning it, or using it as clothing, or whatever--I think future 
generations will think that they defiled our flag, but we do not want 
to let them hoodwink us into also defiling our Constitution, no matter 
how onerous their acts may be. It would be a hollow victory, it seems 
to me. We must not let those who revile our freedoms and our way of 
life trick us into diminishing them, or even take a chance of 
diminishing them.
  Mr. President, I do not think we can let the passions of the moment 
stampede us into abandoning principles for all time. My gut reaction is 
that if there was a flag burning or desecration here, or somebody 
showed disrespect for the flag, it would be the same for the Presiding 
Officer and everyone in this Chamber and all those in the gallery 
here--we would probably take our own physical action to stop it right 
here and now. But then we had better think about, before we take 
action, what that Bill of Rights means and how precious it is. In all 
200 years, we have never made a single change to it.
  This Nation was not founded until that provision was included in the 
Constitution. They would not sign it unless that first amendment was 
included. If we are going to continue to be the land of the free and 
the home of the brave, I think we had better be very, very careful. We 
pledge allegiance to the flag, and that is not an official Government 
document. Something came up and it became adopted as sort of a pledge 
of allegiance. We say, ``I pledge allegiance to the flag of the United 
States of America, and to the Republic for which it stands,'' and we 
reel that off sometimes at a dinner, while we are looking at our steak 
and waiting for the dinner to get started, and we think, Well, OK, and 
we sort of reel those words off and do not think about them. The rest 
of that pledge we should think about. I think it does tie in with this.

  Then we say those words ``one nation.'' We pledge that we will be one 
nation. These are the principles our flag stands for--one nation. We 
are going to stand before the rest of the world not as North and South, 
East and West, black and white, Republican or Democrat. We will be one 
nation before the rest of this world, and every single person is 
important, and we will be in every part of this country, and we will be 
one nation, a nation of might, a nation of resolve. One nation--not 
split up with 50 interpretations of the Constitution, 50 
interpretations of the Bill of Rights for different parts of the 
country.
  The next words are truly unique. I have traveled all over the world 
and looked at government documents all over this world and never seen 
the next two words anywhere--``under God.'' We say, whether we are 
Protestant, Catholic, Jewish, Moslem, Buddhist, Baptist, Presbyterian--
as I am--or whatever you are, we recognize there is a higher power than 
all of us. If we just pray and listen a little bit--listen a little 
bit--maybe we will get enough guidance about how to go about helping 
this country in the future. 

[[Page S 18280]]

  It is under God; not just under getting money, not just under the 
greed of power, not just under a single standard of enforced religious 
beliefs which are also covered in that very first amendment of the 
Constitution. Our religious beliefs are not to be imposed by those that 
think that they, and only they, know and hold the truth. We sure have 
enough of those around these days. ``Under God.'' Pray a little, listen 
a little, and maybe we will get some guidance.
  Then we say ``indivisible.'' Not rich against poor, young against 
old, workers against owners, but indivisible. We stand before the rest 
of this world as an indivisible nation.
  Then we say words which I have not found anywhere else in the world, 
six almost magic words--``with liberty and justice for all.'' ``For 
all''--underline that in our discussion today--``for all.''
  Liberty of what? Of course, liberty of opportunity. Sure, we want to 
see everyone have an opportunity. We want everyone to get a good 
education. We want much to have a fair shot at a good job and all the 
other things that we know about.
  It is not just for a favored few. It is not just for the rich and the 
wealthy and the land owners. It is for everyone in this country. And 
the protections are for everyone in this country. It is not just for 
those born to power and privilege.
  That first amendment talks of this. It says we will be free in our 
religion; we will be free in our speech, including ``expression'' which 
we are talking about today; we will be free in our assembly; and we 
will be free in redress of our Government. ``With liberty and justice 
for all''--liberty of opportunity and liberty of expression of those 
freedoms without any question for every single person--for all.
  Then we say ``and justice for all.'' That means equality. We are all 
equal, whether you are President of the United States or you are 
outside digging a ditch, you have the same protections, the same rights 
as any other person in this country. It does not say ``except'' in the 
case where there are 90 million and one goes astray we will penalize 
that guy and lock him out. It does not say that.
  I think that is a dream for which America still strives. We do not 
have a perfect society, not by a long shot. We have a long way to go, 
whether we are talking about civil rights or economic fairness in our 
country or the rights of every kid to get a decent education. We have 
so far to go.
  I am so proud of this country for addressing these problems. We are 
willing to stand up and address them and do it in an open forum. We do 
it every day here on the Senate floor. Where else in the world are 
people so concerned about the rights of every single individual in 
their nation--nowhere else in this world.
  Take the pledge. ``I pledge allegiance to the flag of the United 
States of America, one nation''--we will keep it one nation, under God. 
You bet. That is something unique in this country. We say there is a 
higher power, whatever our approach to that throne of grace may be. 
``Indivisible''--we will not do things that tear our Nation apart and 
make us live under different rules. We will live under the same rules 
as much as we can. ``And with liberty and justice for all''--the 
liberty of opportunity, the liberty of sameness, how we are treated by 
our Government, and the justice of equality.
  Thank God for our country. I yield the floor.
  The PRESIDING OFFICER (Mr. Grams). The Senator from New Jersey.
  Mr. LAUTENBERG. Mr. President, first let me commend our colleague 
from Ohio. Few have a better right to discuss issues affecting 
attitudes about our Nation than Senator John Glenn.
  His history has been one of service in so many areas--as a pilot, as 
an astronaut, as a Senator. Now I know John Glenn very well. One area 
he is not so good in, we have gone skiing together, he is not very good 
there, but in matters of profession and decency and honor few have the 
credentials that John Glenn has. I am delighted to hear his comments. I 
share the views of my friend and colleague.

  Mr. President, this is a tough issue. It is tough because people of 
good will on both sides feel so differently about the issue. The 
veterans organizations that I belong to are very much supportive of 
taking good care of the flag, of not permitting the desecration, if 
that is possible.
  I am a life member of the VFW. I served overseas, World War II, and 
yet we come up with the kind of disagreements on this matter that we 
have. I regret it.
  I respect all the colleagues with whom there may be a difference in 
point of view--those who think we need an amendment. I disagree with 
the decision they made but I never questioned their patriotism nor do I 
expect them to question mine or Senator Glenn or Senator Kerrey or 
others who have served in uniform. Others need not have served in 
uniform to have a point view that has to be listened to and perhaps 
respected.
  I want to express my strong support, Mr. President, to the flag of 
the United States and my outrage at those who would desecrate the flag 
in any way. At the same time, I rise to express my deep concern about 
amending the U.S. Constitution and the Bill of Rights.
  I am not a lawyer, Mr. President, but as a private citizen and as a 
Senator I have always been vigilant about restrictions on the basic 
freedoms that make America unique in the world. Perhaps because I am 
the son of immigrant parents whose families fled tyranny for the 
promise of freedom, the Constitution and the Bill of Rights for me are 
not abstractions. I was raised to respect them as a sacred promise of 
freedom. Promises compelling enough to convince my grandparents as they 
carried my parents to travel halfway across the Earth to live under the 
protections of the Bill of Rights and the Constitution. They are 
protections that have drawn millions to our shores.

  I remember my dear grandmother, who was born in Russia--my mother was 
about a year old when she was brought here--talking about what a great 
country this is. With a thick accent she said, ``In this house''--it is 
funny, she drew her patriotic commitment along verbal lines--she said, 
with the heaviest accent you can imagine, ``In this house we speak only 
English.'' It was quite remarkable. It left an impression on me that 
has lasted all my life.
  This country has been so good to me and my family, beyond my wildest 
boyhood dreams; even more important, beyond my mother's most precious 
dreams. It has been that way for millions of us, and for that reason I 
volunteered to do my part in World War II. For that reason, although 
the private sector was a very comfortable arena for me, I sought public 
office as a U.S. Senator. I wanted to do whatever I could to give 
something back to our country, our country which continues to serve as 
a beacon of hope for millions seeking freedom and a better life around 
the world.
  One of the reasons I left the private sector to come here was I 
wanted to leave my children, and now my grandchildren, an inheritance 
that went far beyond the value of money and other assets, and that is a 
strong America, an America where all people could enjoy their freedom 
as long as they did not encroach upon others. That is the way I feel 
about our Nation. That is the way I feel about the symbol of our flag.
  For that reason, just as I revere the Constitution and the Bill of 
Rights, I love the flag, which we at my home fly regularly, which 
embodies our ideals, our liberties, our history and our sacrifices. In 
that, I know I stand virtually with all Americans.
  In my mind, I contrast those patriotic Americans with the image of 
the flag burner, whether on our shores or anyplace else; pictures on 
the front pages of the paper, having our flag burned by some in Bosnia. 
It angers me. We are not there to hurt. We are there to help. But the 
thousands of patriotic Americans I know, who have been touched by the 
tragedy of war or sacrifice for this country, are shocked and angered 
by the view, the image of someone destroying the flag, burning the 
flag. They are showing their contempt for this incredible Nation in 
which we live.
  The flag is a unique national symbol. I have a special, personal 
affection for it, as I said, along with all Americans. It is the one 
great symbol that unites our Nation. The flag represents more than 200 
years of our history and our culture.
  As a veteran, as a Senator, and as an American, son of immigrants, 
the flag 

[[Page S 18281]]
represents noble things to me. And flag burning is an ugly, despicable, 
and cowardly act. When I have seen it, though I have not seen it 
directly--when I have seen pictures of it, it sickens me and it saddens 
me. Those who burn the flag are ingrates. They lack the courage and the 
character to fight for change through a well-established and fair and 
just process. Instead, their mission is different. They want to 
infuriate and enrage and offend, more than they want to achieve their 
goals through their attacks on this precious symbol. They are misguided 
and they deserve the contempt of all of us.
  But I am not prepared to sacrifice the principle of freedom of 
expression embodied in the first amendment to protect a symbol. I worry 
about compromising the Bill of Rights. I am unwilling to risk, for the 
first time in our history, narrowing the freedoms expressed in the 
first amendment. Desecration of our flag is outrageous and my anger at 
such incidents wants me to seek vengeance, to strike back and to punish 
those who commit these acts.

  However, when I think about how this offensive dissent might be 
choked off, I conclude that in the process we run the terrible risk of 
trampling on a fundamental right of our democracy, the right to 
disagree, the right to speak out freely, to exercise dissent no matter 
how disagreeable.
  There is no right more fundamental to our democracy than the right of 
free speech, the right to assemble, the right to express ourselves on 
the issues of importance as citizens. That is why the first step of a 
despot is to squelch free speech. Silence the people and you cut the 
throat of democracy.
  Our first amendment protects everyone's right to speak out. It is the 
citizen's shield against tyranny. It is what makes America special. It 
is what makes America a model for those aspiring to freedom around the 
world.
  The right of the individual American to be free is the right to do 
what one wishes short of violating the rights of others, and that 
includes the right to do or say what is popular, certainly--but it also 
includes the right to do or say the unpopular. For it is then, when 
actions give offense, that our freedom is put to the test. It is then, 
precisely then, that we learn whether or not we are free.
  To defend the right to freedom of speech, freedom of expression, is 
quite different from defending the speech that flows from the exercise 
of that right. It is perfectly consistent to condemn flag burning, as 
most Americans do, while defending the right, as unpleasant as it is, 
for someone to abuse it. The flag is a symbol of our freedom. 
Desecrating it is offensive because it desecrates every one of us. But 
what would be even more offensive than the desecration of the symbol 
would be the desecration of the principle that it symbolizes. In the 
end, symbols are only symbols. If we desecrate the real thing, the 
principles our founders fought so hard to secure and that so many since 
have sacrificed their lives to preserve, we will lose something far 
more valuable, far more difficult to restore.
  I have heard it argued that flag burning is not speech but rather 
conduct, and thus is not protected by the first amendment. But that 
argument reflects a misunderstanding of the first amendment. All 
speech, in a sense, is conduct. When one vocalizes, or uses a printing 
press, or types into a computer, that is conduct. But it is generally 
protected conduct if it expresses a political idea. Flag burning is 
despicable precisely because it expresses a despicable political idea.
  Flag burning insults the United States of America. It insults the 
greatest Nation on the face of the Earth. And that is a disgusting 
idea. Just about every American is outraged by that idea. But the whole 
point of the first amendment is to protect the expression of ideas, no 
matter how despicable.
  Throughout the history of our Nation, we have never banned the 
expression of an idea solely because others have found it offensive; 
never. We have never sanctioned speech that hurts others, like yelling 
``fire'' in a crowded theater. But we have never banned speech just 
because it made others uncomfortable. And I feel that this amendment 
would do just that for the first time. This is a very, very dangerous 
precedent, as we heard from Senator Glenn a few minutes ago. A little 
opening often transfers into a giant hole.
  Once we ban one idea because it offends some people, other ideas will 
be threatened as well. Where do you draw the line? It is a dangerous 
and slippery slope, and ultimately can lead to tyranny.
  No doubt, those who are proposing this constitutional amendment are 
entirely well meaning, but I am reminded of something that the great 
Supreme Court Justice Louis Brandeis said. He said, ``The greatest 
dangers to liberty lurk in insidious encroachment by men of zeal, well 
meaning, but without understanding.''
  By no means do I intend to suggest that those who feel differently on 
this amendment are without understanding. But I think this expression, 
this sense, embraces the concerns that we have to have, that our 
greatest danger to liberty often lies within our society.
  I would add, Mr. President, that if freedom is lost, it is most 
likely to be lost not in some cataclysmic war. Americans are too 
patriotic, too willing, too dedicated a country for that to happen. It 
is most likely to be lost a word at a time, a phrase at a time, a 
sentence at a time, an amendment at a time. We saw that happen in one 
of the great--formerly great--nations of the world before World War II 
in Germany. One of the first things they did was start to ban speech, 
ban expression, and the rest is one of man's darkest hours, or periods, 
in history.
  Mr. President, I think it is dangerous to tinker with the Bill of 
Rights, and especially with the first amendment.
  I hope my colleagues will stand by the first amendment and support 
our laws for the flag by working to make our democracy even stronger.
  Thank you. I yield the floor.
  Mr. HATCH addressed the Chair.
  The PRESIDING OFFICER. The Senator from Utah.
  Mr. HATCH. Mr. President, I have listened to the various speeches 
presented today about the flag amendment. There are people on both 
sides who speak on this issue with sincerity. For the life of me, I 
have a rough time understanding some of these arguments. People come to 
the floor and say that they want to protect the flag, that they love 
the flag, and that they are patriotic. I do not question that.
  All that this amendment says is that Congress has the power to 
prohibit flag desecration. Everybody knows Congress is going to want to 
pass a statute once the amendment passes. It will be done reasonably.
  With regard to the first amendment, let me point out that this is not 
an amendment to the first amendment. The flag amendment is the 
correction of a faulty Supreme Court decision. Chief Justice Warren, 
Justice Black--first amendment absolutists--Justice Fortas, Justice 
Stevens, just to mention four liberal Justices, have said that 
prohibiting flag desecration does not violate the first amendment.
  Let me just respond to those people who think that free speech is an 
absolute, that you can never violate it, that you can never do anything 
at all to regulate it. First of all, the protection for free speech 
does not apply to flag burning. Flag burning is conduct. How can 
anybody say it is speech when in fact it is an act? But let us assume 
for the sake of argument that it is speech. Let me just list 20 types 
of speech that are not protected by the first amendment, because people 
do not realize that there is a lot of speech not protected by the first 
amendment. Society has chosen not to protect these types of expression. 
The Supreme Court chooses not to do so.
  Let me cite ``fighting words.'' In Chaplinsky versus New Hampshire, a 
1942 case, the Court said that fighting words can be banned.
  Second, in the 1969 case of Brandenberg versus Ohio, a very important 
case, as was Chaplinsky, the Court said that speech that incites 
imminent violence was not protected by the First Amendment.
  Third, libel is not protected by the first amendment, see New York 
Times versus Sullivan, 1964.
  Fourth, defamation Beauharnais versus Illinois, a 1952 case.
  Fifth, obscenity is not protected by the first amendment. See Miller 
versus California, a 1973 case.
  Sixth, speech that constitutes fraud, conspiracy, or aiding and 
abetting is not protected by the first amendment. 

[[Page S 18282]]

  The first amendment is not absolute. There is a lot of speech that is 
not protected by the first amendment.
  Seventh, commercial speech in certain situations is not protected, 
see Central Hudson Gas & Electric versus Public Service Commission, a 
1980 case.
  Eighth, political contributions are not protected by the first 
amendment under certain circumstances, see Buckley versus Valeo.
  Ninth, child pornography is not protected by the first amendment. 
That is the case of New York versus Ferber.
  Tenth, political speech of Government employees in certain situations 
is not protected by the first amendment--Pickering versus Board of 
Education, a 1968 case.
  How about speech interfering with elections? That is No. 11. See 
Burson versus Freeman, 1992 case.
  These are all cases where we have content-based restrictions on the 
first amendment.
  So people come out here and claim: ``My goodness. We cannot amend the 
first amendment.''
  All of these cases have limited the reach of the first amendment, and 
rightly so.
  Who wants to allow fighting words? Who wants to allow words that 
incite people to violence? Who wants to approve or uphold libel that 
destroys people's reputations? Who wants to approve defamation? Who 
wants to allow obscenity in this society, true obscenity, that is so 
foul that the community standards decry it? Who wants to uphold speech 
that constitutes fraud, conspiracy or aiding and abetting? Who wants to 
use commercial speech that is improper? How about political 
contributions? How about child pornography?
  Under current law, the government may regulate these types of speech 
without violating the first amendment. Naturally, all of these are 
areas where the Court, or the law, has said that the first amendment 
does not provide an absolute protection.
  Let me provide my colleagues with some reasonable time, place, and 
manner restrictions on expression.
  Twelfth, this is the 12th illustration--is restrictions on when 
Government property, such as national parks, can be used. That is Clark 
versus Community for Creative Nonviolence, a 1984 case.
  Thirteenth, picketing in front of a home--that is Frisby versus 
Shultz, a 1988 case.
  Fourteenth, posters on street posts--Members of the City Council of 
Los Angeles versus Taxpayers for Vincent, a 1984 case.
  Fifteenth, restrictions on speech in prison--the court has held in 
Turner versus Safley, a 1987 case that restrictions can be imposed on 
speech in prisons.
  Sixteenth, regulation of speech in schools--that is the Hazelwood 
School District versus Kuhlmeier, a 1988 case.
  Seventeenth, the use of soundtrucks and loudspeakers--that is speech. 
But it can be regulated under the Supreme Court's decision in Kovaks 
versus Cooper, a 1949 case.
  Eighteenth, zoning of adult movie theaters--that is a matter of 
speech, but see Young versus American Mini Theaters, a 1976 case.
  Certain speech in airports has been banned.
  Restrictions on door-to-door solicitation--that is Schneider versus 
State, a 1939 case.
  And, finally, the 21st illustration I will give--and then I will 
stop--administrative fees and permits for parades. That is Cox versus 
New Hampshire, a 1941 case.
  These are all limitations on speech under the first amendment. So I 
find it hard to understand the other side's arguments that we are going 
to interfere with the first amendment's rights and privileges and that 
we will be amending the first amendment. All 21 of these examples are 
certainly exceptions to free speech, and I am sure that the Supreme 
Court has recognized others.
  So this is not something that is unique or new. We are talking about 
the flag of the United States, the national symbol. Some people claim: 
``Oh, my goodness. The rights of free speech supersede everything.'' 
Well, they do not. And especially where speech is not involved. But why 
can we not ban in the interest of patriotism and honor and values in 
this country, despicable, rotten, dirty, conduct against our national 
symbol?
  It amazes me that these folks come in here and say how they support 
the flag, how wonderful it is, and how terrible it is for people to do 
these awful things--to smear the flag with excrement, to urinate on it, 
to tramp on it, to burn it. What do we stand for around here? Have we 
gotten so bad in this country that no values count?
  I know people are going to vote for this amendment because they are 
tired of the lack of values in our country. They are tired of people 
just making excuses for all kinds of offensive conduct in this country. 
Have we no standards at all? Do we have to tolerate every rotten, 
despicable action that people take just because we are free people? The 
answer to that is no, no, no.
  I am willing to admit my colleagues are sincere. Bless them for it. 
But they are sincerely wrong to treat the flag like this while they say 
they uphold it and honor and love it, and yet they will not vote for a 
simple amendment that gives Congress the power to say what desecration 
of the flag really is.
  That is all it does. Congress does not even have to act if this 
amendment is passed. But we all know it will. Congress will act.
  Let me just talk a little bit about the McConnell amendment.
  Mr. President, make no mistake about it, Senator McConnell and I are 
the best of friends, but this McConnell amendment absolutely would kill 
this flag protection amendment. The McConnell amendment is a killer 
amendment, and I think everybody knows that.
  It replaces the flag protection amendment with a statute which cannot 
withstand Supreme Court review after Johnson and Eichman, and is far 
too narrow to offer real protection for the flag in any event.
  The American Legion and the Citizens Flag Alliance are strongly 
opposed to the McConnell proposal.
  Any Senator who has cosponsored Senate Joint Resolution 31, the flag 
protection amendment, or stated his or her intention to vote for it, 
must vote against the McConnell amendment. You cannot be for the flag 
amendment and the McConnell statute as proposed, which will completely 
replace the flag amendment.
  Mr. President, I appreciate the desire of the Senator from Kentucky 
to do something to protect the American flag. I know he feels strongly 
about the flag. I think that is true about everybody in this body. 
Rightly or wrongly, they feel strongly. And I hope that, in the end, my 
friend from Kentucky, will see his way clear to supporting our 
constitutional amendment should his amendment fail.
  But I say to my friend from Kentucky, with great respect, we have 
been down the statutory road before on this issue. It is a dead end, 
plain and simple.
  I well recall my friend from Delaware, Senator Biden lining up a 
variety of constitutional scholars to support his statute in 1989. 
Senator Dole, Senator Grassley, and I, told the Senate that the Supreme 
Court would strike it down. The statute passed by a vote of something 
like 91 to 9. Sure enough, the Supreme Court took 30 days after oral 
argument and less than eight dismissive pages to throw it out in United 
States versus Eichman. I say with all respect, the Senator from 
Kentucky now invites the Senate down the same barren path.
  The Supreme Court, in its Johnson and Eichman decisions, has made its 
position crystal clear: Special legal protections for the American flag 
offends the Court's concept of free speech.
  In Johnson, the Court made clear that for a State to forbid flag 
burning whenever such a prohibition protects the flag's symbolic role, 
but allow such burning when it promotes that role, as by ceremoniously 
burning a dirty flag, is totally unacceptable. The Court says this 
allows the flag to be used as a symbol in only one direction.

  Similarly, if flag desecration is singled out for greater punishment 
than other breaches of the peace or incitements to violence, such 
special treatment promotes the flag's symbolic role. This, sadly, the 
Court will not tolerate--they have told us this twice, now.
  In Eichman, the Court clearly declared that no statute which protects 


[[Page S 18283]]
the flag as a symbol would survive constitutional muster. The Flag 
Protection Act was held invalid, like the Texas statute in Johnson, 
because of the ``same fundamental flaw: [they both] suppress expression 
out of concern for [its] likely communicative impact.'' [496 U.S. at 
317]. Even though Congress had attempted to write a broader statute to 
avoid the problems of the Texas law, by making all physical impairments 
illegal except for ceremonial disposal of a worn flag, the Court found 
the act unconstitutional anyway because ``its restriction on expression 
cannot be justified without reference to the content of the regulated 
speech.'' [Id. at 318]. As Prof. Richard Parker of Harvard University 
Law School has put it, the Supreme Court found the act invalid because 
it ``involves taking sides in favor of what is `uniquely' symbolized by 
the flag--our `aspiration to national unity.' ''
  Indeed, my friend from Kentucky, has made very clear in his remarks 
upon introducing the bill what this bill is all about--it is not about 
breaches of the peace or theft. It is about protecting the flag as a 
symbol. He said on October 19, 1995:

       Flag burning is a despicable act. And we should have zero 
     tolerance for those who deface our flag . . . I am disgusted 
     by those who desecrate our symbol of freedom. . . .

  Mr. President, those words reinforce the bill's fundamental conflict 
with Johnson and Eichman. So does the finding in the proposed statue 
which describes our flag as:

       a unique symbol of national unity and represents the values 
     of liberty, justice, and equality that make this Nation an 
     example of freedom unmatched throughout the world.

  But many who burn the flag disagree with every word of that finding. 
Some of them believe the flag represents oppression, exploitation, and 
racism. They are wrong, but the Supreme Court has made clear that 
Congress and the States cannot protect the flag in order to preserve 
its symbolic value in one direction. I believe the Supreme Court is no 
more correct than it was in Dred Scott and Plessy versus Ferguson, but 
we cannot overrule such errors by statute.
  While it is true that flag desecration can be penalized pursuant to a 
general breach of the peace statute, in the same way other breaches of 
the peace are punished, offering special protection for the flag is 
intended to enhance the flag's symbolic role. The Court will not buy 
it.
  Further, even if this statute was upheld, it is, with great respect, 
very inadequate. Not every flag desecration will cause or likely cause 
a breach of the peace or violence. That will depend on circumstances. 
Frankly, I do not want the protection of the flag to be limited to 
those narrow circumstances.
  And these are very narrow circumstances. A flag desecrated in the 
midst of a crowd of those sympathetic to the desecrator will not elicit 
a penalty. Those who see it on television or in a news photo or from a 
distant sidewalk may not like it, but it will not violate a breach of 
the peace statute.
  Moreover, of course, not every flag which is physically desecrated is 
stolen from the Federal Government, or stolen and desecrated on Federal 
land.

  Indeed, this statute in no way changes the result in the Texas versus 
Johnson case, which creates the problem bringing us to the floor of the 
Senate in the first place.
  In Johnson, the State of Texas defended its flag burning statute on 
the ground that it prevented speech that caused violence or breaches of 
the peace. The Court brushed aside Texas' evidence that witnesses of 
Gregory Johnson's flag burning were seriously offended and might have 
caused disorder. Instead, the Court simply noted that--

       No disturbance of the peace actually occurred or threatened 
     to occur because of Johnson's burning of the flag. . . . The 
     state's position . . . amounts to a claim that an audience 
     that takes serious offense at particular expression is 
     necessarily likely to disturb the peace and that expression 
     may be prohibited on this basis. Our precedents do not 
     countenance such a presumption. . . .'' [491 U.S. at 408].

  The Court also determined that Johnson did not run afoul of the 
fighting words doctrine. The Court concluded that ``no reasonable 
onlooker would have regarded Johnson's generalized expression of 
dissatisfaction with the policies of the Federal Government as a direct 
personal insult or an invitation to exchange fisticuffs.'' Thus, 
section (a) of the proposed statute does not cover Johnson. Nor does 
section (b) cover Johnson, because the flag he burned did not belong to 
the United States. It was taken from a bank building. Finally, section 
(c) is inapplicable--Johnson burned the flag in front of city hall, 
not, apparently, on federal land.
  If Gregory Johnson could not be held criminally liable under the 
Senator's proposed statute, who could?
  I ask unanimous consent to enter into the Record letters from Prof. 
Richard Parker of Harvard Law School, Prof. Steven Pressler of 
Northwestern Law School, concerning the McConnell statute.
  There being no objection, the letters were ordered to be printed in 
the Record, as follows:

                                          Northwestern University,


                                                School of Law,

                                     Chicago, IL, December 4, 1995
     Hon. Orrin G. Hatch,
     Chairman, U.S. Senate Judiciary Committee, Washington, DC.
       Dear Senator Hatch: You have asked for my thoughts 
     regarding the constitutionality of S. 1335, the Flag 
     Protection and Free Speech Act of 1995. I understand that the 
     sponsors of the legislation, based on an analysis performed 
     by the Congressional Research Service, and apparently also 
     advised by some legal scholars (whose names, as far as I 
     know, have not been made public) have asserted that the act 
     would be able to pass muster in any court review of the act. 
     In my view that is simply incorrect. At least as far as the 
     key section of the proposed act, subsection (a), is 
     concerned, I simply do not see any way in which the statute 
     could meet the tests for constitutionality laid down in 
     United States v. Lopes, 115 S. Ct. 1624 (1995), Texas v. 
     Johnson, 491 U.S. 397 (1989), and U.S. v. Eichman, 496 U.S. 
     310 (1990).
       Subsection (a) of the proposed Act would penalize the 
     conduct of flag-burning when the flag burner does so with the 
     primary purpose and intent to produce a branch of the peace 
     or imminent violence, and in circumstances where the offender 
     knows it is reasonably likely to produce imminent violence or 
     a breach of the peace. There is no general federal power 
     given to Congress to prevent breaches of the peace or 
     safeguard against imminent violence. For Congress to assert 
     this power, presumably under the commerce clause, would 
     result in the statute being struck down under United States 
     v. Lopez, 115 S. Ct. 1624. If Congress cannot pass the Gun 
     Free School Zones Act (which presumably had a similar 
     purpose) I can't imagine that subsection (a) of the Flag 
     Protection and Free Speech Act would survive either.
       The alternative ground for the Act, Congress's power to 
     protect the national symbol, has been clearly ruled out by 
     Johnson and Eichman, where the court has indicated as clearly 
     as can be that flag desecration, because the court believes 
     it to be a protected form of speech, is a symbolic act which 
     in no way harms the symbolic value of the flag. Indeed, in 
     the Court's view, the desecration of the flag simply 
     reinforces the symbolic value of the flag. Congress is 
     thus without power to prohibit flag burning or flag 
     desecration by statute, as we made clear in the Eichman 
     case, when an assertedly content-neutral federal statute 
     was struck down.
       As you may remember, when Judge Bork and I testified before 
     the Senate Judiciary Subcommittee holding hearings on the 
     statute, we predicted the statute would be held 
     unconstitutional, and we were proven right by Eichman. 
     Subsection (a) of this statute would also be seen by the 
     courts for what it is, an attempt to do by statute what can 
     only be done by constitutional amendment. Given the decisions 
     in Johnson and Eichman, and given the current composition of 
     the court, the court would undoubtedly adhere to its view 
     that such a statute is an attempt to prohibit what the court 
     regards as protected speech. It should be remembered that the 
     statute struck down in Johnson itself was grounded in similar 
     notions about the need to prevent violence and prevent 
     breaches of the peace, and the court simply decided that a 
     statute calculated to prevent the expressive act of flag 
     burning could not be regarded as devoted to a constitutional 
     purpose.
       I have heard it argued that the Supreme Court's recent 
     decision in Wisconsin v. Mitchell, 113 S.Ct. 2194 (1993), 
     which upheld an enhanced sentence for aggravated battery 
     because the defendant chose his victim on the basis of his 
     race, somehow suggests that the current court would be more 
     lenient in upholding statutes that implicate what has been 
     regarded as conduct protected by the First Amendment. There 
     is no merit to this argument. In Mitchell the court made 
     clear that the Wisconsin statute passed constitutional muster 
     because the conduct at which it was addressed (the infliction 
     of serious bodily harm) was ``unprotected by the First 
     Amendment.'' The conduct at which the Flag Protection and 
     Free Speech Act of 1996 is directed--burning or otherwise 
     destroying the American Flag in order to incite others--is 
     the destroying the American Flag in order to incite others--
     is the very conduct which the Supreme Court declared in 
     Johnson and 

[[Page S 18284]]
     Eichman is protected by the First Amendment. Mitchell simply has no 
     application.
       The two subsections of the Flag Protection and Free Speech 
     Act of 1995, (b) and (o), which have to do with the stealing 
     or conversion of a flag belonging to the United States, and 
     the stealing or conversion of a flag on federally-controlled 
     land could conceivably survive scrutiny under Lopez (since it 
     is the task of the federal government to patrol federally-
     controlled property), and it might be regarded as the task of 
     the federal government to punish theft and destruction of 
     federal or private property on federal lands. Even if this 
     were so, however, and it is by no means free from doubt, this 
     would do nothing to overcome the result in the Johnson case, 
     and others like it, where the flag destruction is prohibited 
     by state governments, or takes place on non-federally 
     controlled property.
       The whole purpose of the efforts undertaken by the Citizens 
     Flag Alliance and countless numbers of Americans working at 
     the grass roots level (which have so far resulted in the 
     resolutions passed by forty-nine state legislatures asking 
     Congress to send the Flag Protection Amendment to the 
     States for ratification, and the passage of the Amendment 
     by much more than the requisite two-thirds vote in the 
     House of Representatives) was to reverse the result in 
     Texas v. Johnson, and give back to the American people 
     their right to protect their cherished national symbol in 
     the manner they had enjoyed prior to 1989. This included 
     protection by either state or federal governments, as 
     provided for by the Amendment. As I indicated in my 
     testimony before your subcommittee six years ago, five 
     years ago, and most recently last summer, a Constitutional 
     Amendment is a traditional manner in which the American 
     people have corrected erroneous decisions by the Supreme 
     Court, and in which they have asserted the sovereign 
     prerogative, which belongs to them alone.
       As you have indicated many times, the Flag Protection 
     Amendment is a worthy measure, expressing noble ideals of 
     decency, civility, and responsibility very much in keeping 
     with American traditions. It should not be sidetracked by a 
     Quixotic quest for a statutory solution. I urge you to do all 
     you can to persuade the Senators who think a statute will 
     work that they are misinformed, and that the proposed 
     statute, if passed, would be declared unconstitutional with 
     regard to subsection (a), and that the remaining subsections 
     would do little to correct the unjust result of Texas v. 
     Johnson.
       I appreciate the opportunity to share my views with you, 
     and I would be happy to help in any further manner I can.
           Yours Sincerely,

                                           Stephen B. Presser,

                                         Raoul Berger Professor of
                                                    Legal History.
                                 ______



                                           Harvard Law School,

                                  Cambridge, MA, December 4, 1995.
     Senator Orrin Hatch,
     U.S. Senate,
     Washington, DC.
       Dear Senator Hatch: Over the last several months, I've 
     found, in countless conversations with all sorts of people 
     about the proposed constitutional amendment to allow our 
     representatives to prohibit ``physical desecration'' of the 
     flag, that everybody agrees. We all agree that the flag is 
     the unique expression of our aspiration, as Americans, to 
     national unity. We agree that, nowadays, this aspiration is 
     under assault by a looming tide of disrespect for the very 
     idea of shared national values, to say nothing of patriotic 
     values. We agree that this tide must be stemmed, that when 
     these values are threatened, they must be defended. Rooted in 
     our hearts, they are expressed in symbols--especially, the 
     symbol of the flag--and so, we agree, it is those symbols 
     that we must protect.
       On October 19, Senator McConnell gave voice to this basic 
     agreement on the floor of the Senate. He is, he said, 
     ``disgusted by those who desecrate our symbol of freedom.'' 
     ``[W]e should have zero tolerance for those who deface the 
     flag,'' he insisted.
       Yet he said that not to support the flag amendment--but to 
     oppose it. He proposed, instead, statute to stem the tide. It 
     would, he said, serve his purpose; showing ``zero tolerance 
     for those who deface the flag'' by punishing those ``who 
     desecrate our symbol of freedom.'' He, no doubt, means his 
     statute to be interpreted in light of his stated purpose. 
     But--for that very reason--his statute would be an empty 
     gesture, a nullity, another depressing instance of 
     Washington's alienation from reality.
       The reason is that his proposed statute would, predictably, 
     be struck down by the Supreme Court--just as, in 1990, 
     another statute, sold as a detour around a constitutional 
     amendment, was struck down. Lawyers sensitive to the the 
     spirit and tendency of the Court's recent decisions know 
     this, even if we wish it were otherwise.
       Then, on November 8, a strange thing happened. Mr. John R. 
     Luckey (a Legislative Attorney in the American Law Division 
     of the Congressional Research Service at the Library of 
     Congress) wrote a two-and-a-half page memo stating--flatly 
     and blandly--that the proposed statute ``should survive 
     constitutional attack''. It is that very odd memo that I want 
     now to answer.
       Though the memo demonstrates a truncated understanding of 
     constitutional law and the Supreme Court, it does get 
     something right. It notes that the proposed statute would not 
     reverse the decisions to which it is a response. It would not 
     protect the flag against ``physical desecration'' in most 
     instances--or even the instances involved in the Johnson and 
     Eichman cases. to show its ``zero tolerance'' for those who 
     ``deface the flag,'' it would reach but a few quirky 
     situations; where there is a ``primary'' purpose and intent 
     and a probability to ``incite or produce imminent violence or 
     a breach of the peace'' or where the flag was stolen from the 
     federal government, on or off federal lands. It would make a 
     little mole hill our of a big mountain.
       On everything but this point, Mr. Luckey's memo is off 
     base. Its reading of constitutional law is, at best, utterly 
     wooden. It is an invitation--whether wide-eyed or winking--to 
     another slap down of the Congress by the Supreme Court, 
     reminiscent of the 1990 fiasco.
       The subsections dealing with destruction of a flag stolen 
     from the federal government ``present no constitutional 
     difficulties,'' according to the memo. It offers two bases 
     for this misleading advice. First, it cites a few passages 
     and footnotes in Court opinions which leave undecided the 
     constitutional validity of prohibiting destruction of a flag 
     owned by the government. It reads those passages and 
     footnotes as deciding that such prohibition is valid. It thus 
     makes the mistake that law students soon learn not to make. A 
     question left open is not a question decided. How it will be 
     decided depends on the general principles--and tendencies--
     that are moving the Court.
       As the other basis for its advice, the memo notes three 
     present statutory provisions which prohibit the theft and 
     destruction of government property of all sorts in general. 
     By citing these provisions, it demonstrates again that its 
     author simply does not grasp the general principle that the 
     majority of the Court has been invoking since 1989.
       The general principle at work is this: The majority of the 
     Court believes that flag desecration implicates the First 
     Amendment because the flag itself is ``speech.'' Since the 
     flag communicates a message--as it, undeniably, does--any 
     effort by government to single out the flag for protection 
     must involve regulation of expression on the basis of the 
     content of its message. The statutory provisions cited by the 
     memo do not ``single out the flag'' for protection. Hence, 
     they would satisfy the Court. But Senator McConnell's 
     proposed statute, by its terms, does ``single out the flag 
     for protection.'' Hence, it would be struck down by the 
     Court, as in 1990.
       The proposed subsection dealing with incitement of violence 
     is, the memo advises, ``quite likely'' to pass constitutional 
     muster. The only virtue of this advice is in its 
     qualification. Even at that, it is wholly misleading. For--as 
     the memo notes--the Court has recently refused to allow 
     government ``to punish only those `fighting words' of which 
     [it] disapproves.'' The memo imagines that the subsection 
     would not run afoul of this principle because it supposedly 
     doesn't make a ``distinction between approved or disapproved 
     expression that is communicated'' by destruction of the flag. 
     It thereby makes the same mistake it made before. The memo 
     fails to grasp the Court's fundamental idea: that singling 
     out the flag for protection in and of itself makes a 
     ``distinction between approved and disapproved expression'' 
     and, so, violates the Constitution as it now stands.
       Thus we come back, again and again, to Senator McConnell's 
     statement of the purpose of his proposed statutory detour 
     around a constitutional amendment. (In adjudicating the 
     constitutional validity of statutes, the Court looks to the 
     statements of their sponsors.) His purpose is to single out 
     the flag for protection. Plainly--according to the majority 
     of the Justices--this purpose is unconstitutional. According 
     to the Justices, the only way to realize this purpose is to 
     amend the Constitution, as was provided for in Article V by 
     the framers of that document.
       Is there no way around it? Those reluctant to take up the 
     responsibility assigned by Article V seem to be grasping at 
     any straw. Recently, for example, I've heard that some are 
     citing Wisconsin v. Mitchell. There, the Court upheld a 
     statute under which a ``sentence for aggravated battery was 
     enhanced'' because the batterer ``intentionally selected his 
     victim on account of the victim's race.'' A prohibition of 
     the battery of a person, the Court said, is not ``directed at 
     expression'' and so does not implicate free speech. 
     Consideration of the motive for a battery--in this case 
     racial discrimination, a motive condemned under several civil 
     rights statutes--doesn't offend the First Amendment. This was 
     an easy case. It has no relevance whatsoever to Senator 
     McConnell's proposed statute. For his statute, which singles 
     out the flag for protection, is directed at expression. Its 
     purpose, stated by the Senator, is to enforce ``zero 
     tolerance for those who deface the flag.''
       What if--to avoid a constitutional amendment--Senator 
     McConnell were to take back his statements in favor of the 
     flag? What if he said he never meant it? The Congressional 
     Record could not now be erased. The Court would see it. And, 
     in any event, it would look at the terms of his proposed 
     statute. Those terms make plain its purpose, a laudable 
     purpose, to single out the flag for protection. Yet that 
     purpose is exactly what offends the majority of the Justices.
       To make good on Senator McConnell's purpose, there is one 
     and only one means under 

[[Page S 18285]]
     the Constitution: a constitutional amendment.
           Sincerely,
                                                Richard D. Parker,
                                                 Professor of Law.
  Mr. HATCH. These letters make it very clear that the analysis by CRS 
is flawed.
  My friend from Kentucky wrote an article in the December 5, 1995, 
Washington Post conceding that the Supreme Court had erred in its two 
decisions, Johnson and Eichman. As he said: ``Much to my 
disappointment, the Supreme Court has found that laws protecting the 
flag run afoul of the first amendment. It is hard to believe that 
burning a flag can be considered `speech.' But a majority of the court 
has found this despicable behavior to be `political expression' 
protected by the First Amendment.''
  It is clear that Senator McConnell disagrees with the Supreme Court's 
decision. Although, as he says, ``it is hard to believe,'' the Court 
did hold that flag burning was speech. As the Court said in Johnson, 
``The expressive, overtly political nature of this conduct was both 
intentional and overwhelmingly apparent.'' In these circumstances, said 
the Court, ``Johnson's burning of the flag was conduct sufficiently 
imbued with elements of communication, to implicate the first 
amendment.'' [491] U.S. at 406]

  My friend makes a critical mistake in acquiescing to the Supreme 
Court's erroneous decision. Simply because five Justices of the Supreme 
Court say that flag burning is protected speech does not mean that the 
Court has correctly interpreted what the Constitution means. It is, no 
doubt, the province of the judiciary to ``say what the law is,'' in 
Chief Justice John Marshall's immortal words in Marbury versus Madison. 
But it is not the exclusive responsibility of the courts to interpret 
the Constitution.
  In fact, the Framers of the Constitution believed that Congress would 
have an independent duty to interpret the Constitution and to correct 
errors of constitutional dimension. That is one of the purposes of 
article V of the Constitution, which permits the amendment of the 
Constitution after two-thirds vote of Congress and three-fourths 
approval by the States. It is clear that the Framers intended article V 
to be used to correct errors in constitutional interpretation made by 
the Supreme Court. Indeed, the 11th amendment, the first amendment 
ratified after passage of the Bill of Rights, was approved by Congress 
and the States specifically to overrule a particular Supreme Court 
decision, Chisolm versus Georgia.

  It is our responsibility to correct the Supreme Court when it is 
wrong. And surely it was wrong in calling this offensive, terrible 
conduct protected speech.
  Since my friend finds it ``hard to believe burning a flag can be 
considered speech,'' as I do, he ought to agree with me that the flag 
protection amendment does not amend the first amendment. It overturns 
two erroneous Supreme Court decisions.
  To obediently accept the Supreme Court's decisions in Johnson and 
Eichman, as my friend from Kentucky would, when we know the Court is 
wrong, is to read article V out of the Constitution, and is to abdicate 
the Senate's responsibility to the people and to the Constitution.
  My friend is also dead wrong to suggest that this amendment 
authorizes legislation to compel anyone to respect the flag. It does 
not. No one can be forced to salute, honor, respect, or pledge 
allegiance to the flag under this amendment. So my friend's invocation 
of speech codes is, frankly, totally irrelevant. It is a straw 
argument.
  Finally, my friend from Kentucky says ``it is hard to draw the line'' 
in determining what to protect. He cites vulgar or offensive renditions 
of our national anthem and asks, ``How can we single out the flag for 
special protection but not our country's song?'' Two hundred-plus years 
of history give us the answer. There is no other symbol like our flag. 
Moreover, while the national anthem is a great song, it is not a 
tangible symbol of the country. Ironically, the Senator's question 
answers itself: our national anthem, the ``Star Spangled Banner,'' is 
about our Nation's unique symbol.
  These arguments get repeated over and over, but the flag protection 
amendment is no precedent for any other legislative action because of 
the uniqueness of our flag. Even the Clinton Justice Department 
acknowledged that the flag stands apart, sui generis, as a symbol of 
our country.
  Right here behind me is a picture of what some of my colleagues call 
freedom of speech--it is pathetic. Senator McConnell said here today 
that prohibiting the burning of the flag ``strikes at the heart of our 
cherished freedom''--as overblown and exaggerated a statement as we 
will hear in this debate.
  Even one of the lawyers the Senator from Kentucky relies upon for his 
proposition on the issue, Bruce Fein, has written that Senate Joint 
Resolution 31, the flag protection amendment, ``. . . is a 
submicroscopic encroachment on free expression . . .''
  My friend from Nebraska says we should not compel patriotism. He says 
that respect for the flag would mean something less if we were 
compelled to offer such respect.
  Mr. President, this straw argument is offered over and over again. 
The flag protection amendment does not authorize any law which compels 
anyone to respect the flag, honor it, pledge allegiance to it, salute 
it, or even say nice things about it. It does not require anything like 
that. So that is a straw argument.
  There is an obvious difference between prohibiting someone from 
physically desecrating our flag and compelling someone to respect it 
and salute it.
  Moreover, I am astonished that anyone can claim that respect for our 
flag would mean something else if we enact legislative protection of 
the flag. I am surprised anybody would argue that. Until 1989, 48 
States and the Federal Government prohibited flag desecration. Did any 
of my colleagues believe their respect for the flag meant something 
less in 1989 than it did after the misguided Johnson decision?
  This issue boils down to this: Is it not ridiculous that the American 
people have no legal power to protect their beloved national symbol?
  Let me just reiterate what I said this morning. On Monday we will 
offer an amendment which deletes the States from the amendment. The 
amendment will read as follows: ``The Congress shall have power''--the 
Congress shall have power--``to prohibit the physical desecration of 
the flag of the United States.'' That is all it says. It is a very 
narrow amendment that says, ``The Congress shall have power to prohibit 
the physical desecration of the flag of the United States,'' not the 
States. So Senators concerned about the multiplicity of State laws 
protecting the flag need not worry about that anymore.
  There would be one definition of ``physical desecration'' and one 
definition of ``flag of the United States.'' And those definitions will 
be decided by the Congress of the United States, as it should be. And 
it will apply everywhere. And it will be a narrow definition. I have no 
doubt about it. It will be one that will work and one that will lend 
credibility to our values in our society, our values of patriotism, 
honor, dignity, country, family. That is what this is all about.
  This is a chance to have that debate on values, honor, dignity, 
family, country, yes, patriotism. I think that this amendment is worth 
it alone. I really do.
  And those definitions that would be set by Congress would need the 
President's signature as well because it would be a statute. And either 
the President will sign it, or veto it if he did not like it. So you 
have all these checks and balances. Let us trust the people on this 
matter.
  The American Legion and the Citizen's Flag Alliance reluctantly 
support this compromise. We have gone more than halfway, and I ask the 
opponents of the amendment to accept this compromise. Let us at least 
protect the flag at the Federal level. We can do it narrowly and do it 
fairly and do it in the right manner.
  I am just going to say one or two more words about the amendment. It 
amazes me that people come on this floor and say, ``It's terrible what 
they're doing to our flag. We should not allow people to smear 
excrement on it and put epithets and obscenities on it, and we 
shouldn't allow them to burn it and trample on it, and it is so 
terrible,'' but they are unwilling to do anything about stopping it. 

[[Page S 18286]]

  Some had the temerity to say that ``Well, we don't have that many 
flag burnings and that many flag desecrations.'' Well, I submit we do, 
because every flag desecration that occurs--and we have had them every 
year--every one that occurs is covered by the press and goes out to 
millions of people in this country, every last one. And, frankly, it 
affects everybody in this country every time we see this kind of 
heinous conduct.
  It is time for us to quit using these phony arguments and stand up 
and vote to honor our national symbol by merely giving Congress the 
power to honor it, if it so chooses, with the right of the President to 
veto whatever they do, if he or she so chooses.
  Mr. President, I think we debated this enough today.

                          ____________________