[Congressional Record Volume 141, Number 196 (Monday, December 11, 1995)]
[Senate]
[Pages S18349-S18360]
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. CHAFEE. Mr. President, the underlying matter before us is a 
proposed constitutional amendment. I see the principal sponsor of that 
amendment on the floor, the senior Senator from Utah, and I have some 
questions I would like to ask the Senator, if he would be good enough 
to respond to them.
  My first question is, as I understand the amendment that he has now 
finally come up with after some changes, but I understand the amendment 
presently before us provides that a Federal statute can pass forbidding 
the desecration of the flag. Am I correct in that, I would like to ask 
the Senator from Utah?
  Mr. HATCH. If the Senator would please state that again. I am sorry.
  Mr. CHAFEE. It is my understanding that the amendment that the 
Senator presently has--there have been some changes in it, as I 
understand--but the amendment that he hopes for us to vote on tomorrow 
will be one that will permit the enactment of a statute forbidding the 
desecration of the flag? Is that correct?
  Mr. HATCH. That is correct. All the amendment will say, should it be 
enacted tomorrow, is: ``The Congress shall have power to prohibit the 
physical desecration of the flag of the United States,'' which would 
leave it up to Congress to enact a statute later, if Congress so 
chooses to do.
  Mr. CHAFEE. I wonder if the Senator would be good enough to help me. 
What would be an example of desecration of the flag?
  Mr. HATCH. Whatever Congress calls it. Whatever Congress would decide 
to do. I suspect that Congress would pass a fairly narrow statute.
  Mr. CHAFEE. Such as burning the flag?
  Mr. HATCH. I presume that Congress would delineate very carefully 
what type of burning of the flag would be prohibited under the statute. 
I suspect Congress would also try to narrowly define what really brings 
contempt upon the American flag. But, in any event, Congress will be 
able to make that determination.
  I suspect it would be very narrow. I suspect that there would not be 
any concern about using representations of the flag as emblems for 
clothing or articles of clothing, sportswear and so forth, just actions 
that would bring the flag into contempt.
  Mr. CHAFEE. Would the Senator help me? Do we have a very serious 
problem here? What brings this statute to the floor, this need for a 
constitutional amendment?
  Mr. HATCH. We know, from the Congressional Research Service, of at 
least 45 flags that have been desecrated between 1990 and 1994, and in 
this year alone there have been over 20 additional desecrations.
  Now, those numbers represent only part of the problem. Because, as 
the Senator from Rhode Island knows, millions of people see reports on 
television and in other news media of every flag that is burned or 
desecrated. So each flag burning or desecration affects millions and 
millions of people across this country.
  Mr. CHAFEE. In 1993, as I see it, from the Senator's own statistics, 
there were three examples of a burning of the flag.
  Mr. HATCH. There may have been many more, but three that the 
Congressional Research Service knows about. Millions of people, we 
believe, were informed of those three flags that were burned, and 
millions of people were offended by it.
  Mr. CHAFEE. Now, this burning of the flag, I assume that that is 
looked on as a very troublesome procedure.
  Mr. HATCH. Only where the flag is brought into contempt, where people 
deliberately, or contemptuously treat it in a destructive manner.
  Mr. CHAFEE. Now, let me----
  Mr. HATCH. Excuse me. We certainly would make exceptions for soiled 
or damaged flags that do need to be destroyed.
  Mr. CHAFEE. Let me take a look at the Boy Scout handbook here.
  Mr. HATCH. Sure.
  Mr. CHAFEE. In the Boy Scout handbook, of which there has been 35 
million, it says regarding the flag: ``If it is torn or worn beyond 
repair, destroy it in a dignified way, preferably by burning.'' We have 
a pretty serious problem here, I suspect, if these Boy Scouts are 
burning the flag. What would we do? Would we send them to jail?
  Mr. HATCH. First of all, I think my good friend listened to me 
earlier, when I talked about actions that bring the flag into contempt, 
contemptuous conduct with regard to the flag. Of course, I think any 
statute in this area would make it very clear that the respectful 
disposal of a soiled or worn out flag, including by burning, would 
certainly be acceptable.
  Mr. CHAFEE. Let us take the situation, we have got two flag burnings 
taking place outside of a convention hall. One we have a bearded, 
untidy protester that is burning a flag. The other we have a Boy Scout 
in uniform, and he is burning the flag, shall we say, in accordance 
with the handbook. He is 

[[Page S18350]]
burning the flag in a dignified fashion. What happens? Could you help 
me out?
  Mr. HATCH. First of all, I do not think you would find a Boy Scout 
burning a flag outside a convention hall, even in a dignified fashion.
  Mr. CHAFEE. Suppose he chose to? He is a good Boy Scout. He is going 
for a Star badge. So he is burning it in a dignified fashion.
  Mr. HATCH. Let us say we have a flag that is soiled or otherwise 
ready for destruction being burned in a dignified fashion.
  Mr. CHAFEE. Let us assume the bearded protester----
  Mr. HEFLIN. Let me----
  Mr. CHAFEE. No, your chance will come.
  Mr. HATCH. I doubt any young person or Boy Scout would be doing that. 
But if they could show that was the case, that they were respectfully 
disposing of a worn or soiled flag by burning it, I do not think 
anybody is going to find any fault. Where that was the case, the law 
would not make a distinction between the Boy Scout and someone who has 
a beard or was disheveled in appearance. But I would have a difficult 
time imagining any circumstance in which the public burning of a flag 
would not be held contemptuous, unless it was literally a Boy Scout 
procedure whereby they are burning a soiled or otherwise worn flag.
  Mr. CHAFEE. Now, we have a further problem. Up in my State, the good 
ladies of 100 years ago did a magnificent hooked rug. It is on display. 
And it has a flag on it, American flag. That was made as a rug to walk 
on. Now, if the good ladies of Providence, RI, should do a hooked rug 
now and put it down and we walked on it, what would we do? Would they 
go to jail?
  Mr. HATCH. Well, I would certainly believe that the distinguished 
Senator from Rhode Island, like myself, would have a little more 
respect for the ability of Congress to do a good job of defining what 
constitutes desecration of the flag. I have no doubt that Congress 
would not do penalize conduct where it is clear that the flag is not 
being treated with contempt, such as the display of hooked rug which 
may include a depiction of a flag. What would constitute contempt for 
or desecration of the flag would be determined by whatever statute 
Congress passes, in the event this amendment is ratified and becomes 
part of our constitution.
  But let us be honest about this subject. We have all seen beautiful 
sweaters, we have seen beautiful ties, we have even seen sports 
equipment containing representations of the flag. I cannot imagine 
anybody in Congress prohibiting that. I think Congress would only be 
concerned with those instances where the flag is physically treated 
with contempt. Of course, we all know what that is, and that, in turn, 
would be determined by the courts of law in accordance with the statute 
we enact.
  Now, if the distinguished Senator from Rhode Island is concerned 
about it, then he has 534 other people who he can work with to insure 
that whatever flag protection statute is adopted is not too broadly 
written, so that it results in action being taken against people who 
really are not trying to deface or otherwise treat the flag with 
contempt.
  Frankly, I have total confidence in the Congress of the United States 
coming up with a very narrowly prescribed, very narrowly defined 
statute on what exactly is holding the flag in contempt, what exactly 
is desecration of the flag. We all know what it is. It is a little bit 
like obscenity. One of the Justices said, ``I know what it is when I 
see it.'' I think the Court will have to make that determination.
  I suspect we in Congress will do a good job. If the distinguished 
Senator sits in Congress at that time, and he does not like what 
statute is advanced by Members of Congress, he has 534 people to which 
to appeal.
  Let me make one last point. When Congress considers a flag protection 
statute under this amendment, assuming it is adopted, you will still 
have all of the legal and procedural protections of the Senate, 
including the right to filibuster, which would require 60 votes for 
cloture. In addition, we will always have the President, who can veto 
any legislation we pass. But remember, and this is the key point, 
without this amendment, or something similar thereto, neither the 
Congress nor the American people will ever--will ever--be able to 
prohibit desecration of the American flag. So that is why this 
amendment is so important, and I think people understand that.
  Mr. CHAFEE. Mr. President, to label this amendment as important is 
one of the great overstatements I have heard around this place.
  Mr. HATCH. I do not think so.
  Mr. CHAFEE. And overstatements are not rare in this Chamber, I might 
say. Here we are mustering the full power of the Federal Government to 
go after something that has occurred 45 times in 6 years and, indeed, 
in 1 year there were three occasions.
  Mr. HATCH. If I can comment----
  Mr. CHAFEE. I will give you your opportunity.
  Mr. HATCH. For a correction.
  Mr. CHAFEE. When the time comes. Let me finish my statement.
  What the Senator from Utah is proposing is to cover a situation which 
has rarely occurred in our country. He himself has said 45 instances of 
media coverage, and the truth of the matter is, the only time anybody 
burns a flag is when there is media coverage, except for these Boy 
Scouts, and he has assured me he is not going to send them all to jail 
if they follow the precepts of the handbook where it says burn the 
flag, if you do it, it is perfectly all right, according to the 
handbook.
  I do not know what the law of the Senator from Utah is going to do to 
them. But if they do it in a dignified way, it is all right.
  What is going to happen, as clear as we are here today, is you pass 
this statute and how is somebody going to get attention? They are going 
to burn the flag with hopes that the police will come along and they 
will be dragged away in chains with handcuffs, with television all over 
the place.
  Mr. President, this is serious business what the Senator from Utah is 
doing. What he is doing is adding an amendment to the Constitution that 
has served us for 206 years, and in the course of those 206 years, 
there have been 26 amendments. And, indeed, only 24 of them are still 
there because one passed and was subsequently repealed by another 
amendment, the so-called prohibition amendment. The 18th amendment was 
subsequently repealed.
  What are those amendments about? Are they about how to sing the Star 
Spangled Banner, or about burning flags? The amendments are about the 
greatest things our country stands for. They are about freedoms--the 
freedom to speak and the freedom to publish and the freedom to worship 
and the freedom from unlawful search and seizure and the freedom from 
slavery and the right to vote--rights and freedoms. They are not about 
prohibitions. They are about rights. The right to vote, the right for 
women to vote, the right for those 18 years and older to vote. They are 
what this country is all about.
  In my State, when we built the State House at the turn of the 
century, those who built it inscribed around the rotunda the following 
words in Latin. The translation is: ``Rare felicity of the times when 
it is permitted to think as you like and to say what you think.''
  That all comes from the Constitution of the United States.
  Here we are trivializing the Constitution. We are adding words about 
desecration of the flag, as though that is a real problem in this 
country, in which 45 incidents have occurred over the past 6 years.
  I just think it is a tragedy that we are spending time taking this 
great document, which is revered all over the world, not just in the 
United States, and trivializing by doing something about what is going 
to happen to the flag.
  The second point is the one I have made about not only is this not a 
great problem, but the Senator from Utah has dealt with this subject 
for 6 years. The last vote we had on it was 5 years ago in 1990, and it 
has not come up since. But the Senator has been working on it, seeking 
passage, dealing with it, and now, 24 hours before we vote, he has 
changed it.
  I would like to ask the Senator from Utah, what prompts him, when he 
has been so deeply concerned with this matter, that suddenly he comes 
in at the last moment and changes it? I ask if there have been hearings 
in his committee on the language as he is now presenting it. 

[[Page S18351]]

  Mr. HATCH. The answer to the distinguished Senator is that because 
there has been criticism by some of our colleagues that under the 
amendment, as originally worded, we could have 50 different State 
statutes, we decided it is appropriate for Congress to be able to make 
that final determination with respect to protection of what is our 
national symbol. We therefore agreed to remove the language which would 
given the State power to enact flag protection statutes, and limit this 
power to the Congress.
  But I think the Senator from Rhode Island is neglecting a key fact. 
The amendment itself does not forbid anything. It merely allows 
Congress to enact a flag protection statute. In enacting any such 
statute, the Senate would, of course, take into account the concerns of 
Senator Chafee and others. If my colleague does not believe that 
Congress can write a reasonable flag protection law, why should the 
American people trust us to do anything?
  So, I think this issue has been considered. I think we all understand 
it. I think we all know what we are doing here. There is just one 
simple change in the amendment, and I think it is an appropriate 
change. I agreed to make that change, even though there are many who 
would prefer not to do so. So instead of both the Congress and the 
States having the constitutional authority to enact flag protection 
laws, under the revised amendment, only Congress would be able to do 
so.
  In a very real sense, that is appropriate because we represent the 
whole country. We would have a uniform flag protection statute. It 
makes sense, and I would think the distinguished Senator from Rhode 
Island would be the first to admit that.
  Mr. CHAFEE. I wonder if the Senator will be good enough to respond to 
the specific question.
  Mr. HATCH. Sure.
  Mr. CHAFEE. Has there been a hearing on the amendment as the Senator 
is now presenting it to this body?
  Mr. HATCH. I think so.
  Mr. CHAFEE. Or was it a hearing on the language previous to his 
changing it here?
  Mr. HATCH. I think the hearing was on the all-embracing subject of 
whether or not we should protect our flag, and the issue of States' 
rights came up during that hearing. It has been part of the discussion. 
There is nothing new here.
  Frankly, I do not think you need a hearing to determine whether you 
should have 50 States do it or have the Congress. I think we are 
totally capable right here in the Senate of the United States to make 
that determination, and I believe that there are those who feel much 
more confident that this amendment is the way to go than there were 
those who supported having 50 States each with the power to enact a 
statute.
  Keep in mind, the reason we did it that way to begin with--and it was 
part of the hearings--is because before the Johnson case was decided, 
we had 48 States plus the Federal Government with flag protection 
statutes. Frankly, this was not something that was ignored or not 
considered. So, no, there is nothing new here. We hope this change will 
bring more people on board, thereby enabling us to pass this amendment. 
Congress will then have the power to pass a flag protection statute, 
which will hopefully put a stop to desecration of the flag, which I 
happen to think is a very, very important thing. I am not alone. The 
vast majority of Senators believe in this. They should not be 
denigrated, just as we do not denigrate those who disagree. We think 
you are patriotic, intelligent Members of the Senate, that you believe 
in the value of the Constitution, in your own sense, and that you are 
fighting against this for good principles.

  Well, we are fighting for it based on our own strongly held 
principles. This is not a political or partisan issue, as some have 
suggested. Some of us feel very deeply that the flag needs to be 
protected by a great Nation, and I am one of them.
  Mr. CHAFEE. Mr. President, I do find it interesting that at this 
time, particularly in this Senate, where the idea of States rights is 
in such complete sway and we must give the States control over 
Medicaid, the welfare, and whatever it might be, suddenly there is a 
reverse of course here in connection with this amendment, the amendment 
having been presented, in which it was either the Federal Government or 
the 50 States, has now, in the last 24 hours before the vote arises, 
been changed to eliminate the States having the power to prohibit the 
physical desecration of the flag.
  Mr. President, it seems to me that we have a lot of things we ought 
to be doing around this place. What are some of them? Well, I think we 
all recognize our education system in the United States needs some 
attention. I think we are all concerned about the recent peace 
agreement in Bosnia, whether we should commit our troops or whether we 
should not commit our troops. We are all worried about the budget, how 
to balance it, what to do, what programs to increase, what programs to 
reduce. This is a matter of major concern to Americans. I believe our 
health care system is deserving of all the attention we can give to it. 
Each of these measures--and there are others we can think of--are 
deserving of the hard work and attention of this body.
  Now, is flag burning an offensive act? Of course, it is; we all 
recognize that. And rightfully Americans are upset by it. But it seems 
to me that if we value the freedoms that define us as Americans, we 
will refrain from taking an action like this to amend our Constitution.
  I just want to read two letters, one from a Boy Scout in Rhode 
Island, who wrote me on this subject:

       Dear Mr. Chafee: I am a Boy Scout of troop 1 East 
     Greenwich, and I am a member of the civil air patrol. I am 
     writing to say that I am against amending the Constitution to 
     prohibit burning the flag as a protest. I think this because, 
     in this country, you have the right to protest peacefully. 
     Burning the flag may be offensive. But if everything 
     offensive were to be outlawed, then this country would not be 
     as free as it is today. Thank you for your consideration.
           Sincerely,
                                                   Stewart Fields.

  I would like to read another statement, by James Warner, a decorated 
marine who was held by the North Vietnamese as a prisoner of war for 
5\1/2\ years. He wrote about his experiences and about the 
extraordinary power of the idea of freedom. This is what he said:

       I did not appreciate this power before I was a prisoner of 
     war. I remember one interrogation where I was shown a 
     photograph of some Americans protesting the war by burning a 
     flag. ``There,'' the officer said, ``people in your country 
     protest against your cause; that proves that you are wrong.'' 
     ``No,'' I said, ``that proves I am right. In my country, we 
     are not afraid of freedom, even if it means that people 
     disagree with us.''
       The officer was on his feet in an instant, his face purple 
     with rage. He smashed his foot onto the table and screamed at 
     me to ``shut up.'' While he was ranting, I was astonished to 
     see pain, compounded by fear, in his eyes. I have not 
     forgotten that look nor the satisfaction that I felt at using 
     his tool, the picture of the burning of the flag, against 
     him.

  Mr. President, for those various reasons, trivializing of the 
Constitution, taking this document that provides the great freedoms 
that we all live by and putting in a provision about burning the flag--
that is not the way we deal with the Constitution of the United States. 
What is next--that you have to stand at attention when they sing the 
Star Spangled Banner?
  Mr. President, we have plenty of work to do around this body, and 
there are matters that ought to take our time, and we should not be 
spending it like this. We are dealing with a subject that is hardly an 
epidemic in the United States--45 instances in 6 years. Yet, we go to 
all this trouble to enact a constitutional amendment for it.
  Mr. President, you cannot mandate respect or pride in the flag. I 
think it is far better to act from motives of love and respect than out 
of obedience. So I urge my colleagues to reject the amendment put forth 
by the Senator from Utah.
  Mr. HATCH addressed the Chair.
  The PRESIDING OFFICER. The Senator from Utah is recognized.
  Mr. HATCH. Mr. President, first of all, it is not 45 in 6 years; it 
is 65 in 5 years. I might add that that is just the Congressional 
Research Service's figure. That does not include numerous other 
incidents of flag desecration that may have occurred, and it does not 
account for the millions of people who have seen our flag desecrated.
  Some say there is no need for this amendment, that it is not 
constitutional. Those who say that have not 

[[Page S18352]]
read the Constitution very carefully, particularly article V. Amending 
the Constitution is the mechanism provided by the Founding Fathers to 
enable us, among other things, to correct wrongful decisions by the 
Supreme Court. That is why we have article V in there, to be able to 
amend the Constitution.
  By the way, there are 27 amendments to the Constitution, not 26 as 
stated by Senator Chafee.
  I might say this to those who say there is no need for the amendment 
and that we are not faced with many flag desecrations: First, if we 
fail to provide legal protection to the American flag, it is we, as 
Members of Congress, who would be devaluating the flag. As Justice 
Stevens, one of our more liberal Justices, stated in his dissent in 
Johnson, ``Sanctioning the public desecration of the flag will tarnish 
its value--both for those who cherish the ideas for which it waves and 
for those who desire to don the robes of martyrdom by burning it.'' One 
year later, in Eichman, Justice Stevens wrote that the value of the 
flag as a symbol of the ideas of liberty, equality, and tolerance that 
Americans have passionately defended throughout our history has already 
been damaged as a result of this Court's decision to place its stamp of 
approval on the act of flag burning. We can and should act to correct 
that damage by restoring to Congress the power to protect our flag 
against physical desecration.
  Moreover, the problem of flag desecration remains with us. I have to 
say that, earlier this year for example, two American flags were burned 
in Honolulu as a show of sovereignty for what protesters called the 
Kingdom of Hawaii and as a protest against statehood. There were other 
flag burnings during protests in Illinois and Pennsylvania. Last year, 
there was a flag burning during a demonstration against proposition 187 
in California. A college student who tried to prevent a second such 
desecration was beaten by the protesters. In another instance, an 
American flag was burned during a news conference outside police 
headquarters in Cleveland, OH, after the U.S. Supreme Court let stand 
an Ohio Supreme Court ruling overturning the conviction of an 
individual who burned an American flag during a protest against the 
Persian Gulf war. Another flag burning occurred during a demonstration 
against capital punishment in Nebraska. I suspect there are many 
others.
  To compare the burning of the flag by a Boy Scout--a soiled or 
otherwise worn out flag--to that of the bearded Gregory Johnson, is, I 
think, stretching it just a wee bit. Johnson held the flag in contempt, 
and there is no doubt that his burning of the flag was done for 
publicity purposes, so that millions of Americans would see and be 
affected by how he treated our flag.
  Perhaps the Senator from Rhode Island sees little difference between 
the bearded protester burning a flag to start a riot and the Boy Scout 
who ceremoniously burns a flag to dispose of it, as Boy Scouts are 
taught to do when flags are soiled or otherwise ruined.
  Without this amendment they are both treated exactly the same. I find 
that offensive and reprehensible that we treat the respectful action of 
a young Boy Scout in burning a soiled or otherwise wornout flag, the 
same as the conduct--and it is ``action,'' not speech--of a Gregory 
Johnson. Without this amendment, they are both treated the same.
  Do my friends who make these kinds of arguments want there to be 60 
Gregory Johnsons running around defiling the flag without fear of 
sanction? They may, but 80 percent of Americans disagree with them, and 
rightfully so. They may, but 312 of our colleagues over in the House 
disagree with them, and rightfully so. They may, but 49 State 
legislatures, including that of the Senator's own home State of Rhode 
Island, disagree with him. And the other supporters of this amendment, 
Republicans and Democrats alike, disagree with him as well.
  I have to respectfully take exception with a few of my colleagues 
when they ask why we are taking time to consider this amendment when we 
have so many important things to do. We spend time around here in so 
many desultory ways that do not amount to a hill of beans; it is about 
time we spent time on something this significant.
  Ask the American Legion, the Veterans of Foreign Wars, the Gold Star 
Wives of America, and the millions of members of organizations who have 
joined together in the Citizens Flag Alliance why they brought us this 
proposal, or why they asked us to debate it.
  Mr. President, we are debating legislation these Americans consider a 
high priority. There are millions of them. I hope that the opponents of 
this measure would not argue that this citizen-initiated effort is 
unworthy of the debate by this august body.
  I suggest my colleagues would be candid and should get all our work, 
including this amendment, done. There is nothing that would stop us 
from doing that; all we have to do is do it.
  I would also call to my colleagues' attention the fact that it was a 
very short time after the Bill of Rights was passed that the 11th 
amendment to the Constitution was added to it.
  Why? It was added to it to overturn a bad Supreme Court decision, 
Chism versus Jordan. There have been other amendments to the 
Constitution overturning bad Supreme Court decisions. I think you have 
to look long and hard to find a Supreme Court decision much worse than 
the Johnson and Eichman decisions. They were 5-to-4 decisions, hotly 
contested.
  By the way, some of the most liberal people on the Court disagreed 
with those decisions, such as Justice Stevens. In the past, some of the 
most liberal Justices on the Court, including Chief Justice Warren, Abe 
Fortas, Hugo Black, a first amendment absolutist, and Justice Stevens, 
just to mention four, have all stated we have a right to protect the 
flag.
  Now, all of a sudden, because of a wrong-headed 5-to-4 decision, the 
law is otherwise. Unfortunately, it cannot be changed by mere statute, 
as some would like to do so. The fact of the matter is, why do we have 
any concern at all? Why would we take so much time debating this when 
we ought to pass it without even much of a debate?
  Let the States determine whether they want to ratify this as an 
amendment to our Constitution. Amending the Constitution is not a 
simple task. That is why we only have 27 amendments to the 
Constitution. Not only do we have to have a two-thirds vote in both 
bodies of congress, but we then have to get three-quarters of the 
States to ratify any proposed amendment.
  The reasons some of my friends do not want this amendment to be 
adopted are multifold, I am sure. I will not denigrate their reasons or 
patriotism in the process, but they should not denigrate ours, either, 
especially since we are in the vast majority, and the vast majority of 
people in this country feel the way we do.
  The fact of the matter is that if three-quarters of the States would 
vote to ratify this, then it ought to be in the Constitution. I'd bet 
money that three-quarters of the States would ratify this amendment so 
fast that it would make the head of my dear friend from Rhode Island 
spin in the process. The fact of the matter is this is what the 
American people want, and the reason they want it, is because they 
value the flag of the United States, and devalue those who would hold 
it in contempt, as they should.
  Mr. CHAFEE. Mr. President, I was interested in the presentation of 
the Senator from Utah where he stressed I should be impressed that 47 
States, or whatever it is, asked Congress to pass this amendment 
including the legislature in my own State; I should be impressed by 
that.
  It comes from the same Senator who in his own amendment has 
eliminated the State's power to pass laws in connection with the 
desecration of the flag.
  On one hand, the States are people who should be listened to with 
great caution and respect; on the other hand, he eliminates them from 
his amendment 24 hours before it comes up for a vote.
  Now, Mr. President, since we are quoting from the Supreme Court, and 
I might say he quoted extensively from the decision involving Texas 
versus Johnson. Johnson has gained greater fame from burning the flag 
than he ever would if he stood at attention and saluted it.
  That, seems to me, Mr. President, is the reason people burn the flag. 
You 

[[Page S18353]]
make it against the law and they will be out there to a far greater 
extent than they are now because that will get them attention. That is 
what they want. These are misguided individuals. Most of all, they want 
the police to come and seize them and drag them off to jail because 
they burnt the flag. Mr. Gregory Johnson is now famous, far more famous 
than if the situation had just been ignored.
  This is what the Supreme Court said:

       The way to preserve the flag's special role is not to 
     punish those who feel differently about these matters, it is 
     to persuade them that they are wrong. You courageous self-
     reliant men with confidence in the power of free and fearless 
     reasoning applied through the processes of popular 
     government, no danger flowing from speech can be deemed clear 
     and present unless the incidence of the evil is so imminent 
     that it may fall before there is an opportunity for full 
     discussion. We can imagine no more appropriate response to 
     burning a flag than waving one's own, no better way to 
     counter a flag burner's message than by saluting the flag 
     that burns, no surer means of preserving the dignity even of 
     the flag that is burned, than by, as one witness here did, 
     [referring back to the situation in Texas] according to the 
     remains a respectful burial. We do not desecrate the flag by 
     punishing its desecration, for in doing so we dilute the 
     freedom that this cherished emblem represents.

  We have not discussed here today that the whole reason this is before 
us is that the Supreme Court of the United States has said this is a 
limitation on the freedom of expression when you pass statutes such as 
suggested by the Senator from Utah.
  So instead of expanding our freedoms, it is a limitation of our 
freedom. I think it should be rejected. I certainly hope it is.
  Mr. HATCH. Mr. President, my friend quoted the Johnson decision 
``just persuade them that they are wrong.'' My goodness, I guess you 
could apply that to anything. The reason that Gregory Johnson got so 
much notoriety out of his act of desecration was not because the Texas 
flag desecration was effectively enforced, it was because the statute 
was not effectively enforced. It is because he got away with it.
  Had that statute been effective in preventing his flag desecration, 
we would never have heard of Gregory Johnson. The reason we have heard 
of him is because people were outraged by the action that he committed.
  ``Persuade them they are wrong''--I guess that is what we should do 
with regard to marijuana usage. Do not treat our children in such a bad 
way. Persuade them they are wrong.
  A reason we punish people is to persuade them they are wrong. That is 
one reason why we have criminal laws. Let me tell you, Gregory Johnson 
would have learned a lot quicker that he is wrong if he had been 
punished under that Texas statute, instead of getting away with it as 
he did.
  What if we just had 45 murders in this country? Would that mean we 
would not want to do something about murder? The fact of the matter is, 
I do not think it is a question of numbers here. It is a question of 
what is right and what is wrong.
  I do not intend to be much longer on this. I notice the distinguished 
Senator from Alabama wants to speak, and I want to listen to him, 
because, in my opinion, he is one of the people I most admire in this 
body. I think he can speak with authority on this issue, as much if not 
more than any other person.
  But for those who have been so critical about this, let me just ask a 
few questions. The equal protection clause of the 14th amendment is an 
extremely important part of our Constitution, as is the first 
amendment. Let us just assume that the year is 1900, just a few years 
after the Supreme Court's infamous 8-to-1 decision in Plessy versus 
Ferguson, interpreting the equal protection clause as permitting 
separate but equal State facilities. Suppose 49 legislatures had called 
for a constitutional amendment to overturn that decision, which is what 
is the case here. Suppose 312 Members of the other body had voted for a 
constitutional amendment that said, ``No State shall deny any person 
equal access to the same transportation, education and other public 
facilities and benefits on the basis of race''?
  Now this amendment is before the Senate. Would my friend be arguing, 
in 1900, ``Oh, I deplore and detest the States' separation of races, 
but the Supreme Court has just told us by an overwhelming majority that 
the equal protection clause allows separate but equal facilities, so 
there is nothing Congress can or should do about it''? Would the 
Senator view the amendment as amending the equal protection clause, or 
just reversing a tragically erroneous interpretation of that clause?
  Would my friend be arguing that, as much as he disagrees with Plessy 
versus Ferguson, the equal protection clause is what the Supreme Court 
says it is at any one time? Would he vote against the amendment 
overturning Plessy? Of course not. The same situation is now before us. 
The Supreme Court has misconstrued the first amendment, after all these 
years, in 1989--misconstrued it.
  We do not have to acquiesce in that error. It was a 5-4 decision. 
They were wrong. Article V gives us a right to amend the Constitution 
and change that wrongheaded decision, something that has been done 
before. I cite the 11th amendment, among others. The question is, and I 
think this is a legitimate question, and in this sense certainly my 
colleague from Rhode Island raises a good question, and that is: Is it 
important enough to the Senate to overturn the Supreme Court decisions 
in Johnson and Eichman? Is it important enough to restore to the 
American people the power they had for 200 years to protect the 
national emblem, our American flag?
  A majority of this body, and hopefully a constitutional majority of 
this body, say yes, you are doggone right it is. And I am one of them, 
and so is the distinguished Senator from Alabama. So I yield the floor.
  The PRESIDING OFFICER. The Senator from Rhode Island.
  Mr. CHAFEE. Mr. President, I can only assume the Senator from Utah 
was being facetious when he started suggesting that murder is no 
different from the burning of the flag.
  I also would point out, as I am sure the Senator from Utah knows 
being a constitutional scholar, that the equal protection amendment 
expanded freedoms in the United States. It did not limit freedoms; it 
expanded them. Whereas this amendment is a limitation on the freedom of 
expression, and there is a whale of a difference right there.
  So, Mr. President, it is my great hope that this constitutional 
amendment will be rejected.
  The PRESIDING OFFICER. The Senator from Alabama.
  Mr. HEFLIN. Mr. President, first, let me thank the distinguished 
Senator from Utah, Senator Hatch, for his kind words that he said about 
me earlier. Unfortunately, I was not on the floor. I had an appointment 
on a vital matter. I had to leave, so I did not hear him. But I thank 
him very much.
  I want to make some distinctions. One is the difference between 
constitutional language and implementing legislation. In the Biden 
amendment, there is a limitation on what can be done by the Congress if 
that constitutional amendment is adopted. It says the Congress has the 
power to enact the following law, and then sets out that law in some 
specificity.
  The Hatch amendment basically allows Congress to be able to enact 
legislation dealing with the physical desecration of the flag, and all 
of these matters pertaining to rugs, Boy Scouts and all of that as 
mentioned by my friend and colleague Senator Chafee, can be taken care 
of in implementing legislation.
  There is a distinction between constitutional language and 
implementing legislation. So, by adopting very brief language which 
gives authority to Congress to adopt implementing legislation, it does 
not mean that you are going to have a situation where it would be 
unlawful to walk on a hooked rug or where it would be unlawful for a 
Boy Scout to burn a flag in a situation where it has been torn or 
soiled or something of that nature. That is for implementing 
legislation to be able to address in order to take care of that 
situation.
  The next matter I want to address is the issue pertaining to 
triviality. I think we have entered a stage in our society where we 
look at things that are extremely important sometimes as being trivial. 
We look to some things and we say that they are trivial, but I think we 
have trivialized so many values and symbols that, basically, we no 
longer have anything that is sacred. I 

[[Page S18354]]
think it is time that we have some matters, including symbols, that are 
sacred in this United States.
  We have seen the deterioration of morals, we have seen the 
deterioration of respect for institutions and for traditions, and I 
think it is time we look at some of these concerns that are very 
important to this country. I think the flag is, and I think the flag 
ought to be sacred.
  I have spoken previously and recited statements of the feelings of 
certain great protectors of the first amendment, such as Justice Hugo 
Black, Justice John Paul Stevens, and Chief Justice Earl Warren, and 
their feelings toward the Constitution and the right to protect the 
flag. I think, when you look at their writings and see how they express 
themselves on this, that is an answer to those who feel that this is 
something that will take away from the freedoms or that Congress is 
invading an area that it should not invade. I think that we also have a 
right to likewise prohibit desecration of the American flag without 
impinging on Americans' right to freedom of speech.
  I strongly support a constitutional amendment to prevent the 
desecration of the American flag. As an original co-sponsor, along with 
Senator Hatch, I urge our colleagues to join in protecting the sanctity 
of this symbol of our great Nation. As I have said before on the Senate 
floor, I feel that the Supreme Court's decision in Texas versus 
Johnson, incorrectly places flag burning under the protection of the 
first amendment. In my judgement, it is our responsibility to change 
that decision and return the flag to the position of respect it 
deserves.
  Few people would disagree with the argument that the American flag 
stands as one of the most powerful and meaningful symbols of freedom 
ever created. Justice Stevens calls the flag a national asset much like 
the Lincoln Memorial. He states that:

       Though the asset at stake in this case is intangible, given 
     its unique value, the same interest supports a prohibition on 
     the desecration of the American flag.

  I must agree with Justice Stevens in his belief that the flag should 
be protected from such desecration. However, I believe that the flag 
also has a tangible value. I feel that the Court could have expressed 
an opinion that would have allowed protection to both values.
  The flag holds a mighty grip over many people in this country. Its 
patriotic appeal is as unique to every person as a fingerprint. 
Thousands of Americans have followed the flag into battle and many, to 
our sorrow, have left these battles in coffins draped proudly by the 
American flag. Nothing quite approaches the power of the flag as it 
drapes those who died for it--or the power of the flag as it is handed 
to the widow of that fallen soldier. The meaning behind these flags 
goes far beyond the cloth used to make the flag or the dyes used to 
color Old Glory--red, white, and blue. The flag reaches to the very 
heart of what it means to be an American. It would be a tragedy for us 
to allow the power of the flag to be undermined through desecration. 
Allowing the burning of that flag creates a mockery of the great 
respect so many patriotic Americans have for the flag.
  As I have stated before, I feel on many different levels that the 
Supreme Court's decision was wrong. I feel it was wrong for me 
personally, it was wrong for patriotism, it was wrong for this country, 
but perhaps most importantly, this decision was judicially wrong.
  I want to emphasize that although I am a strong believer in first 
amendment rights, I recognize that first amendment rights are not 
absolute and unlimited. There have been numerous decisions of the 
Supreme Court that limit freedom of expression.
  Some of history's great protectors of the freedom of speech have 
agreed that the first amendment is not absolute. Many of these 
protectors have agreed that the flag is a symbol of such profound 
importance that protecting it is permissible. I will be quoting from 
some of the protectors of the flag and the freedom of speech such as 
Supreme Court Chief Justice Earl Warren, Justice Hugo Black, Justice 
John Paul Stevens and Justice Oliver Wendell Holmes.
  In a landmark case reflecting the Supreme Court's long-held belief 
that the freedom of expression is not absolute, the Court in Shenk v. 
United States, 249 U.S. 47 (1919), stated that:

       The most stringent protection of free speech would not 
     protect a man in falsely shouting fire in a theater and 
     causing a panic.

  Justice Oliver Wendell Holmes stated that:

       The question in every case is whether the words [actions] 
     used are used in such clear circumstances and are of such a 
     nature as to create a clear and present danger that they will 
     bring about the substantive evils that the Congress has a 
     right to prevent.

  Clearly the indignation caused by the Johnson decision and the 
fisticuffs which have broken out in flag burning attempts show that 
flag burning should not be protected by the first amendment. What if 
the flag burning had occurred in wartime? Certainly, a clear and 
present danger would be present.
  Justice Stevens wrote in Los Angeles City Council v. Taxpayers for 
Vincent, 466 U.S. 789 (1984), that:

       The first amendment does not guarantee the right to imply 
     every conceivable method of communication at all times and in 
     all places.

  Arguments have been made that limitations on the freedom of 
expression refer only to bodily harm, however, the Supreme Court has 
recognized the need for individuals to protect their honor, integrity, 
and reputation when injured by libel or slander. This is seen in New 
York Times v. Sullivan, 376 U.S. 254 (1964), which provides standards 
regarding the libel of public figures and Time, Inc. v. Hill, 385 U.S. 
374 (1967), which provides standards regarding libel of private 
individuals.
  These holdings protect an individual's honor from defamation. I see 
no reason why the honor of our flag should not be protected.
  Arguments have also been made that limitations on free speech involve 
only civil suits. However, the Court has continually upheld criminal 
statutes involving obscene language and pornography. This is seen in 
New York v. Ferber, 458 U.S. 747 (1982), which upholds a New York 
statute regarding child pornography and Miller v. California, 413 U.S. 
15 (1973), which provides much of the current legal framework for the 
regulation of obscenity.
  The U.S. Supreme Court has even upheld criminal statutes involving 
draft card burning. In United States v. O'Brian, 391 U.S. 367 (1968), 
the Court upheld the Federal statute which prohibited the destruction 
or mutilation of a draft card. In reaching this decision the Court 
expressly stated:

       [w]e cannot accept the view that an apparently limitless 
     variety of conduct can be labeled ``speech'' whenever the 
     person engaging in the conduct intends thereby to express an 
     idea.

  Certainly the people of America have a right to expect that the 
honor, integrity, and reputation of this Nation's flag should be 
protected. If draft card burning can be prohibited, surely burning the 
American flag can also be prohibited. Does a draft card have more honor 
than the American flag? Certainly not.
  In his dissent in Street v. New York, 394 U.S. 577 (1969), Chief 
Justice Earl Warren wrote:

       I believe that the states and the federal government do 
     have the power to protect the flag from acts of desecration 
     and disgrace . . . However, it is difficult for me to imagine 
     that, had the court faced this issue, it would have concluded 
     otherwise.

  In this same case, Justice Hugo Black dissented stating:

       It passes my belief that anything in the Federal 
     Constitution bars a state from making the deliberate burning 
     of the American flag an offense.

  I do not think that anyone can question that Hugo Black and Earl 
Warren were champions of the first amendment, but they recognized that 
the flag was something different, something special. The Supreme Court 
substantiated this view in Smith v. Goguen, 415 U.S. 566 (1974), when 
the majority of the court noted that:

       [c]ertainly nothing prevents a legislature from defining 
     with substantial specificity what constitutes forbidden 
     treatment of the United States flag.

  Finally I would like to quote from Justice Stevens in Texas v. 
Johnson, when he says about the flag:

       It is a symbol of freedom, of equal opportunity, of 
     religious tolerance and of good will for other people who 
     share our aspirations. The symbol carries its message to 
     dissidents both home and abroad who may have no interest at 
     all in our national unity and survival.

  I am a strong believer that the rights under the first amendment 
should be 

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fully protected and do not feel that an amendment changing these rights 
should be adopted except in very rare instances. The Founding Fathers, 
in drafting article V of the Constitution, intended that if it would be 
extremely difficult to amend the Constitution, requiring a two-thirds 
vote of both Houses of Congress and a difficult ratification process 
requiring the vote of three-fourths of the States. The history of this 
country shows that only 27 amendments to the Constitution have been 
adopted and only 17 after the Bill of Rights was ratified.
  Some may ask Why have a constitutional amendment; Why not try 
legislation? To those I would say the Senate has passed statutes 
concerning flag desecration. As a body we have tried to oppose the 
protection of flag desecration, but statutory law has not worked. We 
have a number of groups that have joined together to form the Citizen's 
Flag Alliance. There are about 90 organizations in this wide ranging 
coalition. In addition, 46 States' legislatures have passed 
memorializing resolutions calling for the flag to be protected by the 
Congress.
  In my judgement, we should heed this call and act decisively to 
ensure that the American flag remains protected and continues to hold 
the high place we have afforded it in both our hearts and history. The 
flag is indeed an important national asset which we must always support 
as we would support the country herself. In closing, I want to share 
with you the eloquent words of Henry Ward Beecher's work, ``The 
American Flag,'' which expresses this sentiment:

       A thoughtful mind, when it sees a nation's flag, sees not 
     the flag only, but the nation itself. He reads in the flag 
     the government, the principles, the truths, the history which 
     belong to the nation that sets it forth.

  I hope that my colleagues will consider all that the flag means to 
them, and in so doing support this amendment, which protects those 
ideals.
  I would like to also make a statement concerning the issue pertaining 
to Judiciary Committee hearings on the amendment. I believe Senator 
Chafee asked if any hearings were held? There was an extensive hearing 
held on the proposed constitutional amendment.
  During that hearing, as is the purpose of congressional hearings, you 
have criticisms that are made, and you have alternatives that are 
offered. So, therefore, the committee had alternatives that were 
presented. The results of the hearing raised some legitimate issues 
pertaining to the question of having the States have their right to 
pass statutes banning flag desecration. The committee did not 
necessarily hear comments on the exact language of every possible 
constitutional word that might be considered.
  But in the end, you have a record which shows that the hearing 
generally covered those questions which would apply to the particular 
issue of whether or not the States ought to have the right to ban flag 
desecration. So this issue was considered and members of the committee 
were informed as to the merits of allowing States to adopt implementing 
legislation.
  Mr. President, I yield the floor.
  Mr. GRASSLEY addressed the Chair.
  The PRESIDING OFFICER (Mr. Hatch). The Senator from Iowa.
  Mr. GRASSLEY. Thank you, Mr. President. I am glad to follow my good 
friend from Alabama in remarks that he made about the amendment. I want 
to speak about the amendment as well. So I want it very clear that in 
speaking today, I do so in strong support of the constitutional 
amendment to protect the American flag.
  I also want to state that there is a pending amendment by the Senator 
from Kentucky, my good friend, Senator McConnell. And I also want to 
say that I rise in strong opposition to the statutory approach to 
protecting the American flag. I believe that Senator McConnell's 
amendment is either unconstitutional or unnecessary. Either way, I 
oppose it and stand in strong support of the constitutional amendment.
  I want to remind my colleagues that I was one of only three 
Republicans who opposed Senator Biden's statutory attempt to protect 
the flag when it passed this body several years ago. So I believed 
then, as I do now, that the only way to permit the American people to 
protect the flag is to change the Constitution.
  The approach advocated by Senator McConnell can be interpreted in two 
ways. Under one interpretation, this statute provides important new 
protections for the American flag. If this is the correct 
interpretation, then the statute is unconstitutional under the Eichman 
decision which struck down Senator Biden's statutory approach, passed 
by the Congress several years ago.
  Under the other interpretation, this statute simply makes explicit 
protections for the flag which have already existed and which exist, 
not to protect the flag by the way, but to protect the public peace and 
property.
  For example, the statute would criminalize the destruction of the 
flag if the destruction would lead to a breach of peace. Well, this 
probably is the case in most States already, most of which have 
disorderly conduct crimes already on their statute books.
  So in conclusion, I oppose the statute because it is either 
ineffective as a way of protecting the flag or it is unconstitutional 
as the Court has already expressed in the Eichman case when it struck 
down Senator Biden's statute that I was one of only three Republicans 
to vote against at that time.
  Even though I am respectful of Senator McConnell's good intentions, I 
still support the constitutional amendment. This amendment represents 
American democracy at work and American democracy at its best. I know 
that there is an overwhelming groundswell of support for this 
amendment. And I know that that is true because in my home State of 
Iowa I have seen this expressed. On a daily basis I receive letters and 
phone calls from concerned Iowans asking that we in the Senate do what 
it takes to protect the flag. I think it is time then that we do the 
right thing, and doing the right thing is passing this constitutional 
amendment.
  I also think this debate is timely as the first American troops are 
now arriving in Bosnia. I am skeptical of the mission to Bosnia, but I 
support, like all of my colleagues will do, the efforts of our troops 
there. I support the flag under which those troops will serve.
  As a rule, Iowans are very politically active and aware. Any of my 
colleagues who have tried to run for President, because we are the 
first caucus State, know that to be a fact. But with this amendment, I 
have the definite sense that even those Iowans that are not generally 
politically active have become deeply involved in the efforts to 
protect the flag.
  In other words, this desecration amendment is part of a grassroots 
effort which has energized segments of our Nation which, for whatever 
reasons, chose not to participate in the political process. And I think 
that is a wonderful thing to have happened in our democratic system.
  This flag protection amendment is the product of tireless efforts by 
the American people. I believe it would be wrong for the Senate to 
stand in the way of the American people on such a very important issue. 
Now, some may ask, ``Why have the American people become so involved in 
this effort to protect the flag?'' I believe the answer lies in the 
rediscovery of core American values, like respect for authority. Our 
flag is the ultimate symbol of our great Nation and what America stands 
for.
  For many years, starting with the so-called counterculture in the 
1960's, it seemed very fashionable to criticize our Government, to 
criticize our Nation as a people. That, of course, led to the lack of 
respect for our great country in general, and, of course, lack of 
respect for the flag in particular was one way of expressing an 
antiauthoritarian attitude. But those critics have been proven wrong, 
and their shrill anti-Americanism has been thoroughly rejected.
  With last November's election returns--and those election returns 
were expressing the view of the American people--they were expressing a 
view of support of core American values like respect for authority and 
respect for our country. It seems to me that since last November, then, 
it is only natural that right now the American people are pushing 
harder than ever before to protect the American flag.
  As far as I am concerned, we as a nation will never realize our full 
destiny as a great nation and a great people 

[[Page S18356]]
until we instill respect and concern for America in every one of our 
young people. That is a very important reason to support this 
amendment. Passing this amendment will not do that by itself, but 
passing this amendment is going to express at the highest degree that 
we do have in our society basic constitutional principles that are a 
basis for our society, a basis for our society for 207 or 208 years.
  Finally, we simply cannot discuss the flag without our considering 
what the flag means to our veterans, to those brave Americans who 
fought for freedom in far away places.
  I have to be somewhat apologetic when I speak about the 
sentimentalism that is legitimate for our veterans who have fought and 
died to protect our country, because, Mr. President, as I am sure you 
know, I have never served in the military.
  I have an awesome responsibility when I speak about what our veterans 
have done to explain that I, as an individual, do not fully understand, 
not having served in the military, exactly what that is all about. But 
that does not lessen my respect for what our veterans have gone 
through, and I praise the Lord that they have sacrificed for the 
freedom that we all enjoy today.
  On the other hand, I have seen the hand of the veteran very much in 
this grassroots movement to pass this constitutional amendment.
  So I say, if any of my colleagues in this body are undecided on this 
amendment, I encourage each of them to consult with the veterans and to 
remember all those Americans who have died protecting the American 
flag, protecting the principles of our great society that the American 
flag stands for.
  Quite frankly, if we do not pass this amendment, I do not see how we 
can go home and look our veterans square in the eyes. With budgetary 
cutbacks forcing Congress to make difficult cuts in all Federal 
programs, even including veterans programs, it seems to me the least we 
can do is to pass this amendment out of respect for what they have done 
for our country.
  With a President who has restored diplomatic relations with the 
Communist regime in Vietnam without a full accounting of our war dead 
and MIA's, it seems to me the least we can do is pass this amendment. 
And with American troops soon in harm's way, as they are with 6 million 
mines in Bosnia, of where we have only discovered 1 million of them 
thus far, it seems to me that the least we can do is to pass this 
amendment.
  Finally, I want to mention what I think is an ironic situation. Some 
who oppose this amendment feel that it is dangerous to amend the first 
amendment. I think this stems from a sincere feeling that the first 
amendment is sacrosanct and, in fact, it is, Mr. President. But the 
fact of the matter is that many of these same people who oppose this 
flag amendment as a constitutional amendment have sponsored another 
constitutional amendment, or maybe more than one constitutional 
amendment to change the first amendment in other contexts. But I only 
want to speak about one of those efforts.
  This irony certainly does not apply to everyone in the Senate who 
opposes this flag protection amendment, but there is a long list of 
people in past Congresses who opposed a flag amendment, and look at the 
list of people who have cosponsored or favored a constitutional 
amendment which amends the first amendment, the same as the flag 
amendment does, but in this other instance I am speaking of, it 
overturns the Buckley versus Valeo decision to permit limits on 
campaign expenditures.
  In other words, I am saying to you, Mr. President, that we have 
Members of this body who say that the first amendment is so well 
written and historically has never been changed--and the implication is 
that it should never be changed in the future--that we should not pass 
an amendment that would protect the flag, thereby somewhat changing the 
first amendment as it relates to that aspect of free speech.
  But those same people would say that it is all right to amend the 
first amendment when it comes to campaign expenditures and, in fact, if 
you overturn the Buckley case, it is a very significant limit on true 
political speech. It would be a limit on verbal free speech as opposed 
to our amending the first amendment in the case of the flag which, at 
the most, can be said to be a limit on nonverbal free speech.
  So, what we have here is a situation where those of us who favor this 
amendment and those who say it is wrong to amend the first amendment in 
the case of the flag, but that it is OK to amend the first amendment if 
you want to limit verbal free speech when it comes to campaign 
contributions, that you have more than enough votes right here to pass 
the amendment.
  This amendment, I think, is going to pass anyway, but if there is 
some doubt about it, there are a few Members of this body who take the 
position you should not amend the first amendment to protect the 
American flag, but it is OK to pass an amendment to limit political 
speech through limits on campaign spending. If you put those together, 
we have more than enough to pass this amendment.
  So there is some inconsistency between people who are making the 
argument that we should not amend the first amendment in the case of 
the flag because of what it might do to nonverbal speech--and I do not 
think that nonverbal speech is protected by the first amendment--and 
those who are willing to change the Constitution when they overturn the 
Valeo case. What makes this inconsistency even more ironic, when you 
tend to limit campaign expenditures, that tends to benefit incumbents 
rather than challengers. We can support that statistically. That is a 
very selfish motive for changing the first amendment.
  People can be inconsistent. I am probably inconsistent on some things 
myself, but I think it really weakens the argument against this flag 
amendment, when you are in favor of amending the Constitution to limit 
campaign expenditures, which is the ultimate of political speech.
  So, in conclusion, Mr. President, it is time that the Senate do the 
right thing. We tried it once before several years ago, did not get the 
job done and passed a statute that was declared unconstitutional by the 
Supreme Court. It seems to me there ought to be ample evidence that if 
we want to ultimately protect the flag and do it in the surest way 
possible, then the only right thing to do is for this Senate to pass 
this constitutional amendment.
  I yield the floor and suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. HATCH. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER (Mr. Grassley). Without objection, it is so 
ordered.
  Mr. HATCH. Mr. President, let me just have printed in the Record a 
few items. I have a letter from Harvard Law School from Richard D. 
Parker, professor of law, with regard to the McConnell law and why it 
was unconstitutional and why it would become such by the Supreme Court 
of the United States as a statute. There is no way the statute could be 
held constitutional under the decisions of Johnson and Eichman.
  I ask unanimous consent that the letter be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                           Harvard Law School,

                                  Cambridge, MA, December 9, 1995.
     Senator Orrin Hatch,
     U.S. Senate,
     Washington, DC.
       Dear Senator Hatch: Recently, I have read two more 
     commentaries on the constitutional validity of the proposed 
     ``Flag Protection and Free Speech Act of 1995.'' One is a 
     letter from Mr. Bruce Fein. The other is a memo from Mr. 
     Robert Peck and two professors of law [hereinafter the Peck 
     Memo]. Both claim that the narrow protection of the American 
     flag afforded by the proposed statute is ``content-neutral'' 
     and, hence, would be upheld by the Supreme Court under its 
     established principles of First Amendment law.
       The advice is inaccurate. The reason is that it is based on 
     misunderstanding of the principles and precedents to be 
     applied. Since the Fein letter is perfunctory and includes no 
     claim not also made in the fuller Peck memo, I'll concentrate 
     on the latter, breaking into three categories its 
     misrepresentation of the view--as crystallized since 1989--of 
     a majority of the Justices.
       (1) The Flag Cases: Johnson and Eichman.
       The Peck Memo misreads these two decisions by tearing them 
     away from the principle that undergirds them. It portrays 
     parts 

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     of the governing doctrine as if they constituted the whole. It mistakes 
     the tip for the whole iceberg. Thus is betrays a fundamental 
     canon of good lawyering: that the parts can be understood 
     only in the context of the whole that makes sense of them.
       The Memo observes that neither Johnson nor Eichman involved 
     a proven breach of the peace or incitement to imminent 
     violence through destruction of a flag and that neither 
     involved theft of the flag that was destroyed. It says the 
     Court noted that those factors were not present. Then, it 
     commits an elementary error. It suggests that the principle 
     underlying the two decisions is, therefore, inapplicable when 
     those factors are present--as they would be under the 
     proposed statute. Law students learn, early in their 
     education, that a step in the step-by-step unfolding of law 
     should not be read as if it were the final step, the complete 
     unfolded doctrine. The trick of interpreting court decisions 
     involves discerning the deeper general principle that is 
     immanent in them.
       The Peck Memo seems, at times, to suggest that the 
     principled focus of Johnson and Eichman had only to do with a 
     definition of what constitutes ``protected'' expressive 
     conduct. It insists that the sorts of conduct reached by the 
     proposed statute (incitement of imminent violence through 
     destruction of a flag and destruction of a stolen flag) are 
     not ``protected'' expression. It thereby obscures the deeper 
     principled focus of modern free speech law--the focus, 
     indeed, of the Johnson and Eichman opinions themselves. That 
     is to say, it obscures the Court's focus on what interest 
     government is serving. In Johnson, the Court made this very 
     clear: ``It is, in short, not simply the verbal or nonverbal 
     nature of the expression, but the governmental interest at 
     stake that helps to determine'' the validity of a regulation. 
     (491 U.S. at 406-407.) By the same token, the Eichman Court 
     located the ``fundamental flaw'' of the statute in the 
     ``concern'' of the Congress that gave rise to it. (496 U.S. 
     at 317.) The question, then, is: What kind of governmental 
     interests is it that offends the Court's basic theory of the 
     First Amendment?
       The Memo assumes that there are but two sorts of 
     governmental interest that might invite judicial criticism of 
     regulations involving the flag: a direct interest in 
     prohibiting expression and a discriminatory interest in 
     prohibiting advocacy--through destruction of a flag--of some 
     (but not other) particular ``points of view.'' It insists 
     that the interest behind Subsections (b) and (c) of the 
     proposed statute does not involve direct prohibition of 
     expression. And it insists that the interest behind 
     Subsection (a) does not involve prohibition of the 
     expression--through use of a flag to incite violence--of some 
     (but not other) particular ``points of view.'' But it thereby 
     covers up the third kind of governmental interest that 
     triggers that Court's constitutional condemnation, an 
     interest that, in fact, lies behind all three provisions of 
     the proposed statute. That is: an interest in singling out 
     certain determinate ideas or certain determinate messages for 
     governmental protection.
       This was, as is well known, the main point of the seminal 
     scholarship that gave rise to the Johnson and Eichman 
     decisions. In ``Flag Desecration: A Case Study in the Roles 
     of Categorization and Balancing in First Amendment 
     Analysis,'' John Ely (professor and former Dean of the 
     Stanford Law School) wrote that the flag ``represents'' a 
     certain set of messages and that, when government ``singles 
     out'' the flag for any sort of coercive protection, it 
     thereby acts on an impermissible interest in ``singling out'' 
     those messages for protection. ``[A]lthough improper [flag] 
     use statutes do not single out certain messages for 
     proscription,'' he wrote, ``they do single out one set of 
     messages, namely the set of messages conveyed by the American 
     flag, for protection.'' The same, he went on, ``is not true 
     of a law that generally prohibits the interruption of 
     speakers: such a law is neutral not only respecting the 
     content of the interruption but also respecting the content 
     of the message interrupted.'' Protective legislation singling 
     out the flag is definitely not ``content-neutral'' in that 
     very important sense. The distinction, Ely concluded, is 
     ``critical.'' (88 Harvard Law Review at 1505-1507.)
       In Johnson, the Supreme Court recognized this point. The 
     flag, it stated, is inherently ``[p]regnant with expressive 
     content.'' It expresses a particular message as the ``symbol 
     of our country.'' (491 U.S. At 405.) It is ``a symbol of 
     nationhood and national unity, a symbol with a determinate 
     range of meanings.'' In Johnson and Eichman, the Court noted 
     that government may ``foster'' and ``encourage'' respect for 
     the flag. But the majority of the Justices made clear that 
     they regard use of the criminal law for special government 
     protection of the flag--and the ``determinate'' message it 
     conveys--as something utterly different. (491 U.S. at 418; 
     496 U.S. at 318.)
       When Senator McConnell introduced the proposed ``Flag 
     Protection and Free Speech Act of 1995'' on the floor of the 
     Senate on October 19, he affirmed that its purpose is not 
     ``content-neutral.'' He affirmed that the interest it is 
     meant to serve is the interest in protecting the particular 
     message the flag represents. He announced that he is 
     ``disgusted by those who desecrate our symbol of freedom.'' 
     Thus--by describing its purpose--the primary sponsor of the 
     proposed statute ensured that, if enacted into law, it would 
     be struck down by the Supreme Court under the foundational 
     principle of the Johnson and Eichman cases.
       In fact, it would have made no difference if the Senator 
     had not spoken. For the impermissible interest behind the 
     proposed statute is clear on its face. It is entitled as an 
     Act for ``flag protection.'' And--tellingly--it does not 
     probit the ``waving'' of a stolen flag or the incitement of 
     violence through the ``waving'' of a flag. Instead, it would 
     punish only those who ``destroy or damage'' a flag. Its 
     ``content-discrimination--as defined by the majority of the 
     Justices--is thus doubly obvious.
       (2) The R.A.V. Decision.
       In 1992, in the R.A.V. decision, the Court further 
     elaborated the requirement of ``content-neutrality'' that 
     would lead it to strike down the proposed statute. The case 
     had to do with a St. Paul ordinance that--like the proposed 
     statute--``singled out'' certain ``fighting words'' for 
     regulation on the basis of their message. Although ``fighting 
     words'' are not protected by the First Amendment, the Court 
     condemned this ``singling out'' of some among them. The Peck 
     Memo strains to obscure the fatal relevance of the decision.
       First, the Memo suggests that R.A.V. forbids only 
     discrimination among particular ``points of view.'' The 
     proposed flag statute, it claims, applies without regard to 
     the ``points of view'' expressed through specified uses of 
     the flag. Thus the Memo (again) hides the principle that 
     singling out the flag--and so its determinate message--for 
     protection against such uses (indeed, only for protecting 
     against destructive uses) would, itself, be seen by a 
     majority of the Justices as ``content discrimination.'' In 
     the R.A.V. opinion, the Justices explicitly noted, in fact, 
     that the St. Paul ordinance involved both ``viewpoint 
     discrimination'' and ``content discrimination''--and was to 
     be held unconstitutional on both counts. (505 U.S. At 391.)
       Second, the Memo suggests that singling out the flag would 
     not violate R.A.V., because of the Court's recognition in 
     Johnson and Eichman that the flag may be afforded certain 
     sorts of ``special attention.'' What the Memo neglects to 
     mention is what sorts of ``special attention'' the Court was 
     referring to in those opinions. For the only ``special 
     attention'' it approved there specifically involved 
     ``encouraging'' or ``fostering'' respect for the flag without 
     employing the criminal law. It is the absence of a criminal 
     sanction that, according to the Court, justifies the 
     ``special attention'' it approves. The proposed statute, by 
     contrast, does employ criminal law to protect the flag 
     against destruction. The ordinance that the Court struck down 
     in R.A.V. employed it as well. The argument made in the Memo 
     is, therefore, a misleading fantasy.
       Third, the Memo cites the R.A.V. opinion's statement that 
     it is permissible to single out the President for special 
     protection against threats of violence ``since the reasons 
     why threats of violence are outside the First Amendment 
     (protecting individuals from the fear of violence, from the 
     disruption that fear engenders, and from the possibility that 
     the threatened violence will occur) have special force when 
     applied to the person of the President.'' (505 U.S. at 388.) 
     The Memo then seems to suggest that the ``reasons why'' theft 
     and destruction of stolen property and incitement to imminent 
     violence are outside the First Amendment have ``special 
     force'' when applied to thefts of flags, destruction of 
     stolen flags and incitement of violence through flag 
     destruction. The third suggestion is utterly baseless, and 
     the Memo offers no basis for it. The first two are patently 
     ridiculous. The Court, no doubt, would treat these claims as 
     frivolous.
       Fourth, the Memo cites the R.A.V. opinion's statement that 
     it is permissible to single out one industry for regulation 
     of price advertising ``because the risk of fraud (one of the 
     characteristics of commercial speech that justifies depriving 
     it of full First Amendment protection . . .) is in its view 
     greater there.'' (Id.) Again, the Memo seems to suggest an 
     analogy. It seems to suggest that the risk of theft and 
     destruction of stolen property is greater when the property 
     involved is a flag and that the risk of violence is greater 
     when a flag is destroyed to incite it than when other means 
     of incitement are employed. And, again, both claims are 
     plainly frivolous.
       Finally, two other aspects of the R.A.V. opinion deserve 
     mention. (They are not mentioned in the Peck Memo.) In 
     condemning St. Paul's singling out of certain messages, the 
     Court stated, first of all, that there was a ``realistic 
     possibility that official suppression of ideas [was] afoot.'' 
     (505 U.S. at 390.) To support its suspicion, the Court twice 
     cited statements made by officials of the city. (Id. at 394-
     395.) Were the Court to be presented with the proposed flag 
     protection statute, it would not have to look beyond Senator 
     McConnell's insistence on ``zero tolerance for those who 
     deface the flag'' to support a similar--and similarly 
     devastating-- suspicion.
       Secondly, the R.A.V. Court emphasized that St. Paul had 
     available a ``neutral'' alternative: It could simply enact a 
     ``general'' ordinance forbidding all ``fighting words,'' 
     whatever their message. By the same token, the Congress has 
     available the ``neutral'' alternative of relying on a 
     ``general'' statute prohibiting all thefts and destruction of 
     all sorts of government property, all thefts and destruction 
     of all sorts of property on government lands, and all sorts 
     of incitement to imminent violence (that may be reached by it 
     under Article I). Of course, such a ``neutral'' alternative 
     would not do what Senator 

[[Page S18358]]
     McConnell wants to do--single out the flag for protection. The majority 
     of the Justices will not, however, allow the Congress to do 
     that now.
       (3) The Mitchell Decision.
       Reaching for its last straw, the Peck Memo cites the 
     Mitchell decision. 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 victims's race.'' The Memo claims that a 
     ``fair reading'' of Mitchell indicates that the proposed flag 
     statute would not be struck down under R.A.V. Of all the 
     misunderstandings of law in the Memo, this is the wildest. 
     For the basis of Mitchell was not just that battery is not 
     covered by the First Amendment. It was, more importantly, 
     that race-discriminatory motivation--penalized under several 
     civil rights statutes--does not involve expression covered by 
     the First Amendment. The point is that the case, as the Court 
     saw it, simply was not in any way about singling out ideas or 
     messages, whether for prohibition or protection by 
     government. That fully distinguishes Mitchell from any 
     relevance to R.A.V.--or to the proposed flag protection 
     statute.
       The failure of the misleading claims in the Fein Letter and 
     the Peck Memo serves to reinforce one conclusion: The 
     proposed statute, like its predecessor in 1990, would be 
     quickly struck down by the majority of the Justices. They 
     only way to establish the constitutionality of this statute 
     or of a less oddly narrow one--the only way to single out the 
     flag for protection--is to amend the Constitution, as the 
     farmers of Article V meant us to do.
           Sincerely,
                                                Richard D. Parker,
                                                 Professor of Law.

  Mr. HATCH. Mr. President, it comes down to this: will the Senate of 
the United States confuse liberty with license? Will the Senate of the 
United States deprive the people of the United States of the right to 
decide whether they wish to protect their beloved national symbol, Old 
Glory? Forty-nine State legislatures have called for a flag protection 
amendment. By a strong, bipartisan 312-120 vote, the other body has 
passed an amendment. So it comes down to each individual Senator, no 
doubt about it.
  I will offer an amendment removing the States from the constitutional 
amendment. Only Congress will have the power to protect the flag. All 
of the concerns about conflicting or different State laws will not 
apply to the amendment that I, Senator Heflin, Senator Feinstein, and 
others will ask you to support. We are going more than halfway to meet 
the concerns of critics. I think it is time for opponents of the 
amendment to join with us in offering protection of the American flag 
at the Federal level and to send the revised amendment to the other 
body where I am sure it will be accepted.
  The words of Justice John Paul Stevens, in his dissent in the Texas 
versus Johnson decision, put it well:

       The ideas of liberty and equality have been an irresistible 
     force in motivating leaders like Patrick Henry, Susan B. 
     Anthony, and Abraham Lincoln, schoolteachers like Nathan Hale 
     and Booker T. Washington, the Philippines Scouts who fought 
     at Bataan, and the soldiers who scaled the bluff at Omaha 
     Beach. If those ideas are worth fighting for--and our history 
     demonstrates that they are--it cannot be true that the flag 
     that uniquely symbolizes their power is not itself worthy of 
     protection from unnecessary desecration. [491 U.S. at 439].

  Put somewhat differently, is it not ridiculous that the American 
people are denied the right to protect their unique national symbol in 
the law? If my colleagues step back from all the legal talk on both 
sides of this issue, I ask, ``Is there not room for a little common 
sense on this issue? Does the law have to be totally divorced from 
common sense?''
  We live in a time when standards have eroded. My colleagues can see 
this erosion in the movies they, their children, and their 
grandchildren can watch. I am aware that our colleagues, Senators 
Lieberman and Nunn, have expressed concerns about the erosion of 
standards in some aspects of daytime television. We all know the kind 
of lyrics our children can listen to.
  Civility and mutual respect--preconditions for the robust expression 
of diverse views in society--are in decline.
  Individual rights are constantly expanded, but responsibilities are 
shirked and scorned.
  Absolutes are ridiculed. Values are deemed relative. Nothing is 
sacred. There are no limits. Anything goes.
  It is ironic that a recent example of this trend involves the 
physical desecration of the American flag. In Oklahoma this year, a 17-
year-old youth stopped at a convenience store and used a full-size 
American flag to clean oil from his car's dipstick. A veteran saw it; 
the individual was arrested, but, of course, he will not be charged and 
prosecuted. When the veteran told the youngster he should not use the 
flag for that purpose, he replied that he could do whatever he wanted.
  I realize, of course, that we pride ourselves on our freedom in the 
United States. I also understand that the I-can-do-anything-I-want 
attitude has a legitimate appeal, up to a point, to many Americans, 
including me. But we all know that freedom has its limits. We all know 
that there is a difference between liberty and license. I might add 
that the veteran who witnessed the use of the flag to wipe a car's 
dipstick, upon learning that the individual would not be charged, said, 
``you go into battle behind the American flag. There has got to be a 
way to protect this symbol.''
  This Oklahoma episode reminds me of the commonsense testimony of R. 
Jack Powell, executive director of the Paralyzed Veterans of America, 
before the Senate Judiciary Committee in 1989:

       The members of Paralyzed Veterans of America, all of whom 
     have incurred catastrophic spinal cord injury or dysfunction, 
     have shared the ultimate experience of citizenship under the 
     flag: serving in defense of our Nation. The flag, for us, 
     embodies that service and that sacrifice as a symbol of all 
     the freedoms we cherish, including the First Amendment right 
     of free speech and expression.
       Curiously, the Supreme Court in rendering its decision [in 
     Texas v. Johnson] could not clearly ascertain how to 
     determine whether the flag was a `symbol' that was 
     `sufficiently special to warrant . . . unique status.' In our 
     opinion and from our experience, there is no question as to 
     the unique status and singular position the flag holds as the 
     symbol of freedom, our Constitution and our Nation. As such 
     it must be defended and provided special protection under the 
     law.
       I am concerned that there is some impression, at least in 
     the media and by some others that are around, that the 
     idea of supporting the flag is some idea of just right-
     wing conservatives, and I have heard some Senators say, 
     those veteran organizations, and that kind of thing.
       In fact, the flag is the symbol of a constitution that 
     allows Mr. Johnson to express his opinion. So, to destroy 
     that symbol is again a step to destroy the idea that there is 
     one nation on earth that allows their people to express their 
     opinions whether they happen to be socialist opinions or neo-
     Nazi opinions or republican opinions.

  Mr. Powell then goes on to say something that is so very apt, whether 
it is to the young man who wiped his car's dipstick with the American 
flag, or to the American Civil Liberties Union, or to an intemperate 
American Bar Association whose leader foolishly and wildly questioned 
the patriotism of flag amendment supporters. Indeed, Mr. Powell's next 
words say something important to all of us. Here is what else he said:

       Certainly, the idea of society is the banding together of 
     individuals for the mutual protection of each individual. 
     That includes, also, an idea that we have somehow lost in 
     this country, and that is the reciprocal, willing giving up 
     of unlimited individual freedom so that society can be 
     cohesive and can work. It would deem that those who want to 
     talk about freedom ought to recognize the right of a society 
     to say that there is a symbol, one symbol, which in standing 
     for this great freedom for everyone of different opinions, 
     different persuasions, different religions, and different 
     backgrounds, society puts beyond the pale to trample with. 
     [September 13, 1989 at 432-437].

  We seek to teach our children a pride and love of country--a pride 
that will serve as the basis of good citizenship, and for sacrifice in 
our country's interests, perhaps even the ultimate sacrifice. We hope 
our children will feel connected to the diverse people who are their 
fellow citizens. We ask our schoolchildren--we ask them, we do not 
compel them--to pledge allegiance to the flag. But five members of the 
Supreme Court dictate that we must tell them that the very same flag is 
unworthy of legal protection when it is treated in the most vile, 
disrespectful, and contemptuous manner.
  We also have a very diverse country. We all know the flag is the one 
overriding symbol that unites a diverse people in a way nothing else 
can, or ever will. We have no king, we threw him out over 200 years 
ago. We have no State religion. We have the American flag.
  I have to take exception when a few of my colleagues ask why we are 
taking time to consider this amendment. 

[[Page S18359]]
Ask the American Legion, the Veterans of Foreign Wars, the Gold Star 
Wives of America, and the millions of members in the organizations in 
the Citizens Flag Alliance why they brought us this proposal and why 
they asked us to debate it. Mr. President, we are debating legislation 
these Americans consider a high priority. I hope that opponents of this 
measure would not argue that this citizen-initiated effort is unworthy 
of debate in this body.
  I suggest to my colleagues that we can, in fact, get all of our work 
done, including this amendment.
  Now, let us clarify again this point: The flag protection amendment 
does not amend the first amendment. It reverses two erroneous decisions 
of the Supreme Court. In listening to some of my colleagues miss this 
point and talk about how we cannot amend the Bill of Rights or infringe 
on free speech, I was struck by how many of them voted for the Biden 
flag protection statute in 1989. They cannot have it both ways. How can 
they argue that a statute which bans flag burning does not infringe 
free speech, and turn around and say that an amendment which authorizes 
a statute banning flag burning does infringe free speech?
  Some of my colleagues have said, I regret that the Supreme Court 
ruled the way it did. But now that it has, we cannot do anything about 
it. Even though it is difficult to think of flag burning as speech 
rather than conduct, since the Court says so, to override the Court is 
to override this newly minted so-called constitutional right. In my 
view, this concedes too much to the judiciary.
  The Supreme Court is not infallible. Its Dred Scott decision is just 
one example of its fallibility. Let me pose a question to my 
colleagues.
  Let us suppose that the year is 1900. A few years earlier, the 
Supreme Court had interpreted a very crucial part of the Constitution, 
the equal protection clause of the 14th amendment. In its 8-1 Plessy 
versus Ferguson decision, the Court had ruled that separate-but-equal 
is equal. The Constitution only requires separate-but-equal public 
transportation and public education. We all know that is not what the 
equal protection clause means. Suppose the other body, in 1900, had 
already voted 312-120 to pass a constitutional amendment which says 
that no State shall deny equal access to the same public 
transportation, public education, and other public benefits because of 
race or color.
  Would any of my colleagues be arguing, oh, we cannot pass that 
amendment, that would be amending the sacred 14th amendment? Would they 
say, we wish the Court had ruled differently, but, the Court voted 8-1 
that separate-but-equal is equal, so that must be what the 14th 
amendment means? Of course not. Would they argue that the amendment I 
just mentioned amends the 14th amendment? Or would they admit it just 
overturns a deeply erroneous decision of the Supreme Court 
misconstruing the equal protection clause? And would my colleagues vote 
against an amendment overturning Plessy? I think we all know the answer 
to these questions.
  We are faced with a similar situation here. The Court had 
misconstrued the first amendment. The question is this: Is it important 
enough to let the American people, through their Congress, decide if 
they wish to protect the American flag, by overturning erroneous 
Supreme Court decisions?

  Let me be clear. I said this last week. Patriots can disagree about 
this amendment. Opponents of this amendment love the flag no less than 
the amendment's supporters. There are war heroes on both sides of this 
issue, including Members of the Senate. Similarly, supporters of this 
amendment are strong believers in the first amendment. It is simply a 
question of judgment on this amendment. Is it important enough to give 
the American people the right to express their traditional values 
regarding the protection of their flag? Or is it more important to 
preserve the right to engage in one particular, narrow mode of 
expression with respect to this one object, and one object only, our 
flag? That is our choice.
  As Justice Stevens said in his Johnson dissent, ``sanctioning the 
public desecration of the flag will tarnish its value * * * That 
tarnish is not justified by the trivial burden on free expression 
occasioned by requiring that an available, alternative mode of 
expression--including uttering words critical of the flag--be 
employed.'' [491 U.S. at 437.] I urge my colleagues to view the 
constitutional amendment in the same way.
  The suggestion by some opponent that restoring Congress' power to 
protect the American flag from physical desecration tears at the fabric 
of our liberties is so overblown that it is difficult to take 
seriously. Even one of the principal lawyers some opponents rely upon 
to make their case, Bruce Fein, himself a strong opponent of the 
amendment, has said, ``The proposed amendment is a submicroscopic 
encroachment on free expression that would still leave the United 
States galaxies beyond any other nation in history in tolerating free 
speech and press.''
  These overblown arguments ring particularly hollow because until 
1989, 48 States and the Federal Government had flag protection laws. 
Was there a tear in the fabric of our liberties? To ask that question 
is to answer it. Of course not.
  I should add that the American people have a variety of rights under 
the Constitution. Indeed, if it was not for the right of the people to 
amend the Constitution, set out in article 5, we would not even have a 
Bill of Rights in the first place. The amendment process is a difficult 
one, but it is there. The Framers of the Constitution gave Congress a 
role in that process. They did not expect us to surrender our judgment 
on constitutional issues just because the Supreme Court rules a 
particular way. The Framers did not expect the Constitution to be 
routinely amended, and it has not been. But the amendment process is 
there as a check on the Supreme Court in an important enough cause. 
This is one of those causes.
  I know we will debate a few amendments today. I know my friend from 
Kentucky will offer a statute as a complete substitute for the flag 
protection amendment. The McConnell amendment is a killer amendment. It 
will completely displace the flag protection amendment. A vote for the 
McConnell amendment is a vote to kill the flag protection amendment. 
Senators cannot vote for both the McConnell amendment and the flag 
protection amendment.
  I know my friend from Kentucky reveres the flag. I know he would like 
to do something to protect it in law. But I say with great respect, his 
amendment is a snare and a delusion. We have been down this statutory 
road before and it is an absolute dead end.
  The Supreme Court has told us twice that a statute singling out the 
flag for special protection is based on the communicative value of the 
flag and, therefore, in its misguided view, violates the first 
amendment. Even if one can punish a flag desecrator under a general 
breach of the peace statute, the McConnell amendment is not a general, 
Federal breach of the peace statute. It singles out flag desecration 
involved in a breach of the peace. Johnson and Eichman have told us we 
cannot do that, we cannot single the flag out in that way. The same 
goes for protecting only one item of stolen Federal property, a Federal 
Government-owned flag, in a special way, or protecting a stolen flag 
desecration on Federal property in a special way. We all know why we 
would pass such a statute. Do any of my colleagues really believe we 
are going to fool the Supreme Court? Many of my colleagues, in good 
faith, voted for the Biden statute and the Court would not buy it. They 
took less than 30 days after oral argument and less than eight pages 
and threw the statute out. They will do the same to the McConnell 
statute. The American people know better and they want to see us take 
action that can really protect the flag.
  Even if the McConnell statute is constitutional--and it is not, with 
all respect--it is totally inadequate. Far from every flag desecration 
is intended to create a breach of the peace or occurs in a 
circumstances in which it constitutes fighting words. And, of course, 
many desecrated flags are neither stolen from the Federal Government 
nor stolen from someone else and desecrated on Federal property. 
Indeed, most of the desecrations that have occurred in recent years do 
not fit within the McConnell statute.

[[Page S18360]]

  Just as an illustration of its inadequacy, if the McConnell statute 
had been on the books in 1989, the Johnson case would have come out 
exactly the same way. Why? The Supreme Court said that the facts in 
Johnson do not support Johnson's arrest under either the breach of the 
peace doctrine or the fighting words doctrine. Morever, the flag was 
not stolen from the Federal Government. Finally, the flag was not 
desecrated on Federal property. So the McConnell statute, which my 
friend from Kentucky will offer to replace completely the flag 
protection amendment, would not have reached Johnson.
  What, then, is the utility of the McConnell statute, as a practical 
matter, other than to kill the flag protection amendment?
  I urge my colleagues to support the substitute flag protection 
amendment that we will offer and to reject the other amendments to be 
offered today.

                          ____________________