[Congressional Record Volume 141, Number 197 (Tuesday, December 12, 1995)]
[Senate]
[Pages S18373-S18391]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




               FLAG DESECRATION CONSTITUTIONAL AMENDMENT

  The PRESIDING OFFICER (Mr. Thomas). Under the previous order, the 
Senate will now resume consideration of Senate Joint Resolution 31, 
which the clerk will report.
  The assistant legislative clerk read as follows:

       A joint resolution (S.J. Res. 31) proposing an amendment to 
     the Constitution of the United States to grant Congress and 
     the States the power to prohibit the physical desecration of 
     the flag of the United States.

  The Senate resumed consideration of the joint resolution.

       Pending:
       Biden amendment No. 3093, in the nature of a substitute.
       Hollings amendment No. 3095, to propose a balanced budget 
     amendment to the Constitution of the United States.
       Hollings amendment No. 3096, to propose a balanced budget 
     amendment to the Constitution of the United States.
       McConnell amendment No. 3097, in the nature of a 
     substitute.

  Mr. HATCH. Mr. President, today the Senate must decide whether this 
is freedom or the abuse of freedom--this right here--evidenced by this 
picture of the flag being burned by a bunch of antiflag activists.
  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?
  Is it not ridiculous that the American people are denied the right to 
protect their unique national symbol in the law?
  We live in a time where standards have eroded. Civility and mutual 
respect--preconditions for the robust views in society--are in decline.
  Individuals, 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.
  The commonsense testimony of R. Jack Powell, executive director of 
the Paralyzed Veterans of America, before the Senate Judiciary 
Committee in 1989 is appropriate here:

       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 that unlimited individual freedom so society can be 
     cohesive and work. It would seem 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.


[[Page S18374]]

  We all know that the flag is one overriding symbol that unites a 
diverse people in a way nothing else can or ever will. We have no king. 
We have no State religion. We have an American flag.
  Today, the Senate must decide whether enough is enough. Today, the 
Senate must decide whether the American people will once again have the 
right to say, if they wish to, that when it comes to this one symbol, 
the American flag, and one symbol only, we draw the line.
  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 opposing this amendment, 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 an 
amendment that authorizes a statute banning flag burning does impinge 
free speech?

  The suggestion by some opponents that restoring Congress' power to 
protect the American flag from physical desecration tears at the fabric 
of liberty is so overblown it is hard to take seriously. 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. Individual rights expanded during that period while 
48 States had the right to ban physical desecration of the flag.
  I should add that the American people have a variety of rights under 
the Constitution. These rights include a right to amend the 
Constitution. The amendment process is a difficult one. The Framers did 
not expect the Constitution to be routinely amended, and it has not 
been. There are only 27 amendments to the Constitution. But the Framers 
of the Constitution did not expect the Senate to surrender its judgment 
on constitutional issues just because the Supreme Court rules a 
particular way.
  The amendment process is there, in part, as a check on the Supreme 
Court and in an important enough cause. This is one of those causes.
  Let me briefly address the pending amendments to Senate Joint 
Resolution 31. The McConnell amendment is a killer amendment. It would 
gut this constitutional amendment. It will completely displace the flag 
protection amendment should it be approved. 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 and be serious.
  I say with great respect the Senator's amendment is a snare and a 
dilution. 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 a 
flag for special protection is based on the communicative value of the 
flag and, therefore, 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 out the flag in that way. The same goes for 
protecting in a special way only one item of stolen Federal property, a 
Government-owned flag, or protecting in a special way only one item, a 
stolen flag desecrated on Federal property.
  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. The Court took less than 30 days after oral argument 
and less than eight pages to throw the statute out, as they will this 
one.
  They will do exactly the same to the McConnell statute. 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 circumstance in which it 
constitutes fighting words.
  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. 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. Moreover, the flag was not stolen from our 
Federal Government. Finally, the flag was not desecrated on Federal 
property.
  So the McConnell statute would not have even reached Johnson, and the 
case would have come out exactly the same. What, then, is the utility 
of the McConnell statute, as a practical matter, other than to kill the 
flag protection amendment?
  The Biden amendment, on the other hand, insists if we are to protect 
the flag, we must make criminals out of veterans who write the name of 
their unit on the flag. If the statute that authorizes this had been 
enacted at the time, Teddy Roosevelt and his Rough Riders would have 
been criminals. Why? Because they put the name of their unit on the 
flag they followed up San Juan Hill, the flag which over 1,000 of their 
comrades died in protecting.
  Moreover, the Biden amendment blurs the crucial distinction between 
our fundamental charter, the Constitution, and a statutory code. Read 
it. It actually puts a statute into the Constitution and, for the first 
time, I might add, says Congress can vote up or down on it if it 
wishes. We have not done that in the 206 years during which we have 
lived under the Constitution. We cannot do that to our Constitution 
today.
  This same amendment was rejected 93 to 7 in 1990. It has not improved 
with age.
  The two amendments by Senator Hollings on the balanced budget and 
campaign finance reform are not relevant to the flag protection 
amendment and therefore are subject to a point of order. They should be 
debated and voted on at some other time, but do not destroy the flag 
amendment because of irrelevant matters on this occasion.
  So, I urge my colleagues to support the flag protection amendment and 
reject the other amendments to be offered here today.
  I reserve the remainder of our time and ask any time be divided 
equally.
  The PRESIDING OFFICER. The Senator from Nebraska.
  Mr. KERREY. Mr. President, I ask unanimous consent that 10 minutes in 
opposition be yielded to me.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. KERREY. Mr. President, I do not believe that we are going to get 
Americans to stop desecrating our flag as a consequence of amending our 
Constitution. I just do not believe it is going to happen.
  I see the distinguished Senator from Utah has a picture, a very 
disgusting picture of a young man, I believe, a young boy, perhaps, 
burning an American flag. Much of the desire to pass this 
constitutional amendment comes, in fact, from our observation that in 
some isolated instances, young people, angry about something, will 
desecrate a flag to make a point. Thus, we say, let us protect 
ourselves from these acts by amending the Constitution or passing a 
statute at the State level or passing, in this case, now in an amended 
form, a law at the Federal level saying that it is now against the law 
to desecrate the flag.
  The respect for the flag is something that is acquired. One makes a 
choice based upon an understanding of what the flag stands for, and 
that understanding does not come in some simple fashion. It does not 
come with a snap of our fingers: Amend the Constitution, pass a law, 
and thus, all of a sudden, young people all across the Nation--or 
adults, for that matter--will immediately acquire respect for the flag 
based upon knowing that they will be punished if they do not.

  That is basically the transaction here. We are saying, either respect 
the flag or we will punish you by invoking the law and perhaps fining 
you. I do not know, maybe there will be a jail sentence attached, some 
mandatory minimum perhaps that will be associated with the new criminal 
law of desecrating the flag. 

[[Page S18375]]

  Let me be clear on this. Many people are very confused, because I 
heard some people say, ``It is against the law to desecrate the dollar 
bill. Why is it not against the law to desecrate the flag?'' It is 
against the law to desecrate our flag. You cannot go down to the Iwo 
Jima Memorial or Arlington or up on the hill where the Washington 
Monument stands and burn a flag that is owned by the people of the 
United States of America. This issue here, this concern here is with a 
flag that some individual owns.
  If the suspicion occurs, under this new constitutional amendment--I 
assume enabling legislation will occur as a consequence--that somebody, 
in their home, is desecrating their flag, it will now fall to the 
police or to the Federal law enforcement officials, I suspect, 
depending upon how the statute is written, to go into the home to make 
sure that individual is not desecrating his or her flag. That is the 
kind of response we are going to have our law enforcement people now 
charged with the responsibility of making.
  I understand. I have spoken many times with American Legion members 
in Nebraska who are very enthusiastic about this amendment, or Veterans 
of Foreign Wars members, or Disabled American Veterans members who are 
very concerned about the loss of respect. They are very concerned about 
the loss of character.
  Indeed, one of the most impressive things in community service right 
now, that has been over the course of my life, has been American Legion 
effort, and VFW and DAV effort, to provide programs for young people, 
to teach them the history of this country, to teach them about D-day, 
to teach them about what stands behind this flag, why this flag is so 
revered by those of us who have served underneath it. But we see in 
that moment, if it is Legion baseball or a VFW youth program, you see 
in that moment the kind of effort that is required to teach respect, 
for a young person to choose to acquire the character necessary to give 
the kind of reverence due the U.S. flag.

  I know this amendment, now that it has been modified, stands an even 
better chance of passing. But make no mistake, there is going to be a 
consequence to this vote. This is not one of those deals where you just 
vote on it and say, Now I have kept faith with the American Legion, the 
VFW, the DAV, that have been lobbying very hard on it. There will be a 
consequence. We are going to pass a law and afterward there will be a 
law enforcement response. We are going to have an opportunity to 
measure, have we protected our flag as a consequence of amending the 
Constitution? Is there more reverence and respect? Do the young people 
of America now say, ``Gee, now that Congress has amended the 
Constitution, passed a law, and provided an environment where it is 
going to be illegal for us to burn the flag, we are now going to 
respect the flag more''? I do not think so.
  We see an increase today of consumption of illegal drugs by 12- and 
13- and 14- and 15-year-old youth who are using marijuana, who are 
using cocaine, who are using illegal drugs. We already have a law on 
the books where they will suffer tremendous consequences.
  There is a decline in character today with the youth of America for a 
whole range of reasons, but we are not going to reverse that decline by 
simply passing a constitutional amendment and issuing a press release 
saying that we respect the flag and all sorts of other glowing 
statements that we might make.
  I made a list of things that I would put down if I was trying to 
determine whether or not an individual had acquired, through effort, 
through work, through discipline, real character. It is not easy to do 
it. It is not just respect, reverence of the flag; it is respect and 
reverence for adults, the older people who have served, who put their 
lives at risk at Iwo Jima, who put their lives at risk at Normandy, who 
put their lives at risk at the Chosen Reservoir, who put their lives at 
risk at Khe Sanh, who put their lives at risk in Desert Storm, who put 
their lives at risk in Bosnia, who put their lives at risk every single 
day they wear the uniform of the United States of America and train to 
fly a plane and train to do the work that we ask them to do to protect 
us.
  There are 38,000 people today in South Korea, Americans serving this 
country, putting themselves at risk as the North Koreans continue to 
press.
  We need to teach our young people what it means to serve, and guide 
them in the acquisition of character and making the choices necessary 
to have character. To have character means that you are obedient to 
something higher than your own willful desire to satisfy short-term 
concerns. Obedience is not easy. It is not easy to be obedient to your 
parents. It is not easy to be obedient to your country--to answer the 
call, and say you are going to give yourself to some higher authority. 
It is much easier to say, ``Well, you know, freedom means to be 
willful. Freedom means to do whatever I want. It is not just burning a 
flag. If I want to consume marijuana, or consume cocaine, or do the 
opposite of what my parents tell me to do, that is what being free is 
all about. Freedom is not being obedient. That is to be a slave.''
  Well, Mr. President, we need to teach young people that the pathway 
to freedom, in fact, is to be obedient to something other than your own 
desire to satisfy some short-term concern, physical or otherwise. To be 
an individual that acquires character means that you pay attention to 
what is going on around you. You do not daydream. To pay attention 
requires effort to note life around you--to note the passing not just 
of time. But your own life requires you to pay attention.
  We need to help our young people learn what is necessary to do that.
  Third, I put down on my list of things for an individual to acquire 
character is that will have to learn to be considerate about others--
not self-centered but considerate.
  What the flag burning issue is all about--what the desecration issue 
is all about--is do not necessarily offend somebody. Do not offend 
them, not just by burning a flag, but by disrespecting their property 
rights, or disrespecting their right to speak. Be considerate of other 
people.
  That is one of the things that one needs, if they are going to 
acquire character. But you need to be conscious of time, and aware of 
the gift of life.
  All of us in this Chamber are old enough to have either been with 
somebody who is dying, or seen somebody lose their life. And we know 
how precious life is as a consequence of that loss. We have been with a 
parent, with a loved one, and have sat with them as the life left them. 
We have sworn that moment that we would never forget how precious life 
is. And we committed ourselves, at least for a short period of time, 
to change our ways, to abolish and banish the habits that cause us to 
behave in ways that we do not like and are not proud of.

  One must acquire, in the words of Albert Schweitzer, ``a reverence 
for life''--a respect for life as opposed to being not just 
disrespectful but perhaps destructive as well; but all of these things, 
and more besides.
  I made a list this morning. There are others beside the elements of 
character that we are trying to teach our young people that cause us to 
be alarmed when we watch daytime television, that lead to our wanting 
to amend the Constitution to protect the one symbol, the one icon that 
tends to bind us together as a nation. All of us have had various 
experiences as a consequence of serving under that flag.
  If you force people to respect the flag by amending our Constitution, 
or by passing a law, you are not going to have people respect the flag 
more. That is not the pathway to produce less desecration of the flag--
something, by the way, that happens very little at all. It is not, in 
my judgment, a great threat to this country. What is a great threat to 
this country is when 40 percent of our youth do not know what the cold 
war was; when 50 percent do not know whether Adolf Hitler was an enemy 
in the Second World War; when a large percentage of people are unable 
to associate with any of the narrative of this country--any of the over 
200 years of narrative of heroic adventures and life laid down for 
freedom that causes us in this moment to say, ``Well, let us try to 
establish once and for all that we will have character in this country 
by amending our Constitution.''
  Mr. President, I again know there is great desire on the part of the 
Legion, the VFW, and DAV, and many other well-intended people who are 
concerned about the flag and want to protect the 

[[Page S18376]]
flag. To protect the flag takes us down a much different and a much 
more difficult road, one that I believe this country needs to follow. 
But I do not believe at all that we are going to increase the amount of 
respect that Americans have for their flag as a consequence of amending 
our Constitution. Indeed, I believe quite the opposite.
  For those who think it is a fairly easy free vote--vote for it, and 
walk away--there will be consequences. We are going to amend laws. We 
are going to have the spectacle of people being arrested in their home, 
the spectacle of law-abiding citizens now being faced with all kinds of 
new charges and accusations that they do not respect the flag 
sufficiently.
  Mr. President, I hope that there are 34 votes in this Senate to block 
this because I believe that the flag of the United States of America 
should not be politicized. And I believe it will--not by the well-
intended Senators who are here today on the floor in support of this 
resolution, but by the actions that will occur as a consequence of this 
amendment.

  Mr. President, I yield the floor.
  Mr. McCONNELL addressed the Chair.
  The PRESIDING OFFICER. The Senator from Kentucky.
  Mr. McCONNELL. Mr. President, I understand that the time of the 
opponents on this is controlled by Senator Biden.
  The PRESIDING OFFICER (Mr. Jeffords). We are not certain who is 
controlling the time.
  Mr. McCONNELL. I am an opponent of the amendment, so I yield myself 
20 minutes.
  The PRESIDING OFFICER. Without objection, it will be charged to 
either side.
  Mr. McCONNELL. Mr. President, when we talk about the American flag, 
we usually do not think of it as an abstraction. It is not just a 
design on canvas.
  For most of us, the flag means even more than the treasured symbol of 
our Nation.
  Often, we think about a particular American flag we have seen or 
owned, and the special memories that surround that flag.
  Some of us may remember the flag our fathers took out every Fourth of 
July and displayed from a makeshift flagpole.
  Some of us may remember saying the Pledge of Allegiance to the flag 
in our first grade classroom.
  Or we may recall the beautiful sight of an American flag in a foreign 
country, reminding us of home and safety.
  Personally, I think of the American flag that sits on the mantle in 
my Senate office, folded up into a neat triangle.
  There is not a day that goes by without me seeing that flag and 
thinking about it, if only for a minute or two.
  I am very proud of that flag, because it was the flag that draped my 
father's coffin at his funeral, after he died of cancer in 1990.
  For the rest of my life, I will remember seeing that flag and being 
so proud that my father had earned the right to have an American flag 
laid upon his casket--the highest military honor--by serving his 
country courageously in wartime.
  My dad was a scout in the U.S. Army, fighting with the Allies in 
Western Europe during World War II.
  D-day had come and gone, and the Germans were aggressively 
counterattacking, in the desperate hope that the Allies would lose 
heart and relent, allowing Germany to rearm and retain control over 
itself. This is what we came to call The Battle of the Bulge.
  Being a scout was one of the most dangerous jobs in the Army, because 
you usually went out alone or in small groups, with minimal firepower.
  And the whole purpose of being a scout was to find the enemy--to 
locate his position and strength, and then report that information back 
to the unit command.
  Since you were virtually defenseless as a scout, you did not want to 
engage the enemy, but often that was unavoidable given the nature of 
the task.
  In fact, my dad lost two-thirds of his company in one hellish night 
of fighting; and he himself came home with the Purple Heart.
  But at least he came home.
  Those were difficult and anxious times, but there was also great 
clarity of purpose in America's participation in World War II.
  And as I look at that folded-up flag in my office, what strikes me 
over and over again is that my dad voluntarily went to war--risked his 
life like so many others of his generation--not because he was 
interested in acquiring a piece of European real estate, but because he 
believed in the cause of freedom.
  Protecting America's freedom--and restoring the freedom of other 
nations--that is why my dad went to war.
  United States Rangers scaled the cliffs of Normandy not to conquer, 
but to free. General MacArthur returned to the Philippines, not to 
conquer, but to free.
  Even as we speak, American troops are deploying to Bosnia, not to 
conquer, but to bring freedom from centuries of ethnic violence and 
bloodshed.
  Freedom is and always has been the great cause of America, and we 
must never forget it.
  If we have learned one thing from the astonishing collapse of global 
communism, it is that freedom eventually wins out over tyranny every 
time. Ronald Reagan predicted it, and as usual, he was right.
  Freedom is the most powerful weapon America has in a watching world. 
Preserving freedom--even when every impulse we feel goes in the 
opposite direction--sets an example for other nations to follow when 
their road to freedom gets rough.
  If we allow ourselves to compromise on freedom, what can we expect 
young democracies like Russia and Ukraine to do, when they are faced 
with the difficult issues and decisions that freedom brings?
  If we want to spread freedom, we need to stand for freedom--without 
equivocation or compromise.
  Just as importantly, freedom is what will preserve our own democracy 
for the long run. Without freedom, America will cease to be America.
  What does our freedom consist of?
  Perhaps the most fundamental freedom is the first one enumerated in 
the Bill of Rights: the freedom of speech. And freedom of speech means 
nothing unless people are allowed to express views that are offensive 
and repugnant to others.
  The freedom of speech that is protected by the Constitution is not 
about reaching consensus, it is about conflict and criticism.
  Freedom of speech knows no sacred cows.
  As all of us here are painfully aware, the high offices we hold 
provide no insulation from attacks by the media, even those that are 
completely unfair and inaccurate.
  And as much as I do not like it at times, that is the way it ought to 
be.
  As Justice Jackson wrote in the 1943 decision, West Virginia State 
Board of Education versus Barnette:

       If there is any fixed star in our constitutional 
     constellation, it is that no official, high or petty, can 
     prescribe what shall be orthodox in politics, nationalism, 
     religion or other matters.

  The reason we have a first amendment is that the Founders of this 
Nation believed that, despite all the excesses and offenses that 
freedom of speech would undoubtedly allow, truth and reason would win 
out in the end.
  As one constitutional scholar put it, the answer to offensive speech 
is not more repression, but more speech.
  To put it another way, the best regulator of freedom--as paradoxical 
as that sounds--is more freedom.
  The Supreme Court also has made it clear that the first amendment 
does not protect just the written or spoken word.
  That is because ideas are often communicated most powerfully through 
symbols and action.
  We do it all the time in political campaigns.
  For example, as I have cited on this floor many times, the Supreme 
Court has held that spending on political speech is constitutionally 
indistinguishable from the speech itself.
  And because campaign spending is so closely linked to political 
speech--the core of the first amendment--the Court has held that 
mandatory campaign spending limits are per se unconstitutional.
  But that is only one example where something that appears to be 
conduct has a clear expressive purpose that falls within the ambit of 
the first amendment. 

[[Page S18377]]

  So to categorize something as conduct doesn't fully answer the 
question of whether it is also speech, and therefore protected by the 
Constitution.
  Of course, when we see hateful people desecrating the American flag, 
we are instantly repulsed by it.
  It strikes at the core of our emotions.
  And it is not only because we love the flag and all that it 
symbolizes to us; it is also because of what is being communicated by 
such foul behavior.
  Those who willfully desecrate our flag are saying that America is a 
lousy country, that its faults are beyond repair, and that it deserves 
to be torn down and reviled.
  They are also saying--and this is something I take particular offense 
at--that men like my father--who spilled their blood to save America 
and liberate others--were involved in an unworthy cause.
  Thus, burning the flag is a uniquely offensive way of disparaging 
their heroism and trivializing their sacrifice.
  Ideas like these are not only reprehensible, they are also 
demonstrably false.
  They are lies: lies about America, and lies about those who fought 
and died for our country.
  Nevertheless, as divisive and distorted as these ideas are, as much 
as they deserve to be condemned, they are still protected by the first 
amendment.
  The most revolutionary facet of our Constitution--what sets it apart 
from every other document in history--is that it confers its benefits 
not only on those who love this land, but also on those who hate it.
  For years, people in other countries saw it as a weakness that we 
tolerated so much vitriolic dissent in America.
  Now they are realizing it is our strength.
  I think of the powerful testimony of Jim Warner, a prisoner of war in 
North Vietnam from 1967 to 1973, whom I had the privilege of meeting 
this year.
  During his imprisonment, Jim had been tortured, denied adequate food, 
and subjected to over a year of solitary confinement.
  When he was finally released, he looked up and saw an American flag. 
To use Jim's own words, ``As tears filled my eyes, I saluted it. I 
never loved my country more than at that moment.''
  One can only imagine how much it grieved this patriot when a North 
Vietnamese interrogator showed him a photograph of some Americans 
protesting the Vietnam war by burning an American flag.
  The interrogator taunted Warner by saying, ``There. People in your 
country protest against your cause. That proves you are wrong.''
  But Jim Warner mustered every bit of strength he had and replied 
firmly, ``No--that proves I am right. In my country we are not afraid 
of freedom--even if it means that people disagree with us.''
  As Jim tells the story, the North Vietnamese interrogator reeled 
back, ``His face purple with rage * * *. I was astonished to see pain, 
confounded by fear, in his eyes.''
  Drawing on that incredible experience, Jim Warner wrote the following 
about the issue before us today:

       We don't need to amend the Constitution in order to punish 
     those who burn our flag. They burn the flag because they hate 
     America and they are afraid of freedom. What better way to 
     hurt them than with the subversive idea of freedom? Spread 
     freedom.
       When a flag was burned in Dallas to protest the nomination 
     of Ronald Reagan . . . he told us how to spread the idea of 
     freedom, when he said that we should turn America into a 
     ``city shining on a hill, a light to all nations.''
       Do not be afraid of freedom, it is the best weapon we have.

  ``Spread freedom--spread freedom.'' If anything is a conservative 
creed, that is it.
  That is why so many die-hard conservatives flatly reject the idea of 
a constitutional amendment to ban flag burning.
  George Will called it a ``piddling-fiddling amendment.'' Cal Thomas 
said it was ``silly, stupid, and unnecessary.''
  The National Review editorialized against it twice, saying it would 
``make the flag a symbol of national disunity.''
  The College Republicans, in their newspaper the Broadside, argued 
that a flag burning constitutional amendment would not accomplish much 
of anything.
  And Charles Krauthammer warned that it would ``punch a hole in the 
Bill of Rights,'' concluding that, ``If this is conservatism, 
liberalism deserves a comeback.''
  And what about the liberals?
  Nat Hentoff wrote that a constitutional amendment to ban flag burning 
would itself be desecration of the flag and the principles for which it 
stands.
  Barbara Ehrenreich wrote a hilarious essay in Time magazine, 
envisioning all the legal conundrums that a flag desecration amendment 
would create--especially in an age when flag motifs are used on 
everything from campaign bumper stickers to underwear.
  At some point, flag desecration is in the eye of the beholder.
  In all of these writings, from across the ideological spectrum, the 
theme is the same: to use Jim Warner's deeply-felt words again: 
``Spread freedom. Don't be afraid of freedom. It's the best weapon we 
have.''
  Let me conclude with a brief story. The night of September 13, 1814, 
was one of the darkest in our Nation's history.
  The late Isaac Asimov wrote a fascinating account of this night, 
which was later published by Reader's Digest. I will attempt to 
summarize it:
  Three weeks before that fateful September night, the British had 
succeeded in taking Washington, DC, and now they were heading up 
Chesapeake Bay toward Baltimore.
  Their strategy was clear: if the British were able to take Baltimore, 
they could effectively split the country in two.
  Then they would be free to wage war against the two divided sections: 
from the north, by coming down Lake Champlain to New England; and from 
the south, by taking New Orleans and coming up the Mississippi.
  All that lay in the path of the British Navy was Baltimore. But first 
they had to get past Fort McHenry, where 1,000 American men were 
waiting.
  On one of the British ships was an American named Dr. Beanes who had 
been taken prisoner earlier. A lawyer by the name of Francis Scott Key 
had been dispatched to the ship to negotiate his release.
  The British captain was open to the idea, but they would have to 
wait; the bombardment of Fort McHenry was about to begin.
  All through the night, Beanes and Key watched Fort McHenry being 
pummeled by cannon shells and rocket fire.
  They were close enough in to hear the shouts and screams of men in 
mortal combat.
  And all night long, they could see the American flag flying defiantly 
over the fort, illuminated by the bombs and explosions.
  But when dawn came, the bombardment ceased and a dread silence fell 
over the entire battlescape.
  Dr. Beanes and Francis Scott Key strained to see any signs of life 
from the battered ramparts of Fort McHenry.
  And what they saw brought them incredible joy: despite the brutal 
onslaught of the night before, the American flag--torn and barely 
visible in the smoke and mist--still streamed gallantly over Fort 
McHenry.
  The message was clear: the British were not going to get to 
Baltimore--and the war had taken a decisive turn in America's favor.
  So let us get one thing straight: our flag survived the British naval 
guns at Fort McHenry.
  Our flag weathered the carnage and cannon-fire of a national civil 
war.
  Our flag still flapped angrily from the front deck of the U.S.S. 
Arizona--even after she had been blown in half and sunk at Pearl 
Harbor.
  And our flag stood tall in the face of machine-gun and mortar fire at 
Iwo Jima.
  Make no mistake: this is one tough flag--and it does not need a 
constitutional amendment to protect it.
  All it needs is hardy men and women who believe in freedom and have 
the courage to stand up for it, whatever the circumstances.
  Then we can say together with confidence the words Francis Scott Key 
penned after that September night in 1814: ``And the star-spangled 
banner in triumph shall wave O'er the land of the free and the home of 
the brave.''
  I yield the floor.
  The PRESIDING OFFICER. Who yields time?
  
[[Page S18378]]

  Mr. HATCH addressed the Chair.
  The PRESIDING OFFICER. The Senator from Utah is recognized.
  Mr. HATCH. Mr. President, I listened to my friend and colleague. And 
there are very few people I have as much admiration for as I do the 
distinguished Senator from Kentucky. I think he is a gracious man and 
wonderful Senator. He has led the fight on a lot of very good issues.
  The McConnell amendment has two fundamental flaws that should 
convince anyone who supports Senate Joint Resolution 31 or who wants to 
protect the flag to vote to reject the Senator's amendment. First, the 
Supreme Court will certainly strike down the statute as contrary to its 
decisions in Johnson and Eichman. Second, the McConnell amendment is so 
narrow that it will offer virtually no protection for the flag. The 
McConnell amendment would not even have punished Gregory Johnson, which 
is the cause celebre case that is really involved here, among others.
  What message does that send about our society's willingness to defend 
its values?
  The McConnell amendment's primary fault is that the Supreme Court, 
following its mistaken Johnson and Eichman decisions, will strike it 
down as a violation of the first amendment. Both Johnson and Eichman 
make clear that neither Congress nor the States may provide any special 
protection for the flag. Because the Court views the flag itself as 
speech, any conduct taken in regard to the flag constitutes protected 
expression as well.
  As Prof. Richard Parker of Harvard University Law School concludes: 
``Since the flag communicates a message--as it, undeniably, does--any 
effort by government to single out the flag for protection must involve 
regulation of expression on the basis of the content of its message.'' 
So a careful reading of Eichman bears this point out. Even though the 
1989 act was facially content-neutral, the Court found that Congress 
intended to regulate speech based on its content.
  The McConnell amendment is not going to fool anyone, least of all the 
Supreme Court. Its purpose is clear: to protect the flag from 
desecration in certain, narrow instances. Unfortunately, the Supreme 
Court has said that the American people cannot do this, something they 
had a right to do for almost 200 years, a right they had exercised in 
48 States and in Congress up to 1989, with the Johnson decision. Do we 
need a third Supreme Court decision striking down a third flag 
protection statute in just 6 years before the Senate gets the message?
  Even if the Court were to find that the McConnell amendment was not 
intended to protect the flag from desecration, it will still find it 
unconstitutional. Under its decision in R.A.V. versus City of St. Paul, 
the Court will strike down any statute that draws content-based 
distinctions, even if, as in R.A.V., those distinctions are made within 
a category of unprotected speech. Thus, even though fighting words or 
words that incite a breach of the peace are unprotected, Congress 
cannot prohibit only certain types of speech within these areas of 
unprotected speech. However, it is this that the McConnell statute 
impermissibly does.
  In fact, the Court in R.A.V. made clear that this doctrine would be 
applied to any flag protection statute. As Justice Scalia wrote for the 
Court: ``Burning a flag in violation of an ordinance against outdoor 
fires could be punishable, whereas burning a flag in violation of an 
ordinance against dishonoring the flag is not.'' Since the McConnell 
amendment is not a law of general applicability, but instead is one 
that singles out the flag for protection, it will be held to be 
unconstitutional by the Court.
  Mr. President, the McConnell amendment is so narrow that it would not 
even have punished Gregory Johnson for his desecration of the flag. And 
in Johnson--this is a pretty good representation of what Johnson and 
others did.
  In Johnson, the Court held that unless there was evidence that a riot 
ensued, or threatened to ensue, one could not protect the flag under 
the breach of the peace doctrine. Small protection, that. Do we really 
want to limit protection of the flag only to those narrow instances 
when burning it is likely to breach the peace? I think not.
  Even if sections (b) and (c) of the McConnell amendment could survive 
constitutional scrutiny, which I do not believe they can, they are no 
substitute for real flag protection. Only those who steal and destroy 
flags that belong to the United States, or only those who steal the 
flag from others and destroy it on Government property, can be punished 
under the McConnell amendment. Gregory Johnson did not steal his flag 
from the United States; it was stolen from a bank building. He did not 
burn his stolen flag on Federal property. He burned it in front of city 
hall. If the amendment would not punish Gregory Johnson, who will it 
punish?
  Adoption of the McConnell amendment will amount to the Government's 
unintended declaration of open season on American flags. Just do not 
burn it to start a riot. Just do not steal if from the Government. And 
just don't steal it and then burn it on Government property. Otherwise, 
the McConnell amendment declares, flag burners are free to burn away, 
just like they did on this occasion, represented by this dramatic 
photograph that is true.
  Mr. President, I yield the floor.
  Ms. MIKULSKI. Mr. President, I support and cosponsor the McConnell 
amendment to ban flag burning. I oppose the burning of our U.S. flag. I 
oppose it today just as I always have.
  Mr. President, I feel very strongly about this issue. I have voted 
for legislation to prohibit flag burning, and I have voted against 
amending the U.S. Constitution.
  But, more than any other time in the past, I have grappled with 
today's vote to amend the Constitution to stop flag burning. This time 
the debate is different.
  I truly believe that our Nation is in a crisis.
  Our country is in a war for America's future. It's that's being waged 
against our people, against our symbols and against our culture. And I 
want to help stop it.
  I firmly believe that we need a national debate on how to rekindle 
patriotism, values, and civic duty.
  And if there is a way to do that, then I am all for it. It's 
important to me, and it's important to the future of our Nation.
  Mr. President, I do not--and never have--intended or wished to 
inhibit America's freedom of speech. In fact, the first amendment--and 
others--got me where I am today.
  I feel so strongly about this issue that I seriously considered 
supporting an amendment to the Constitution.
  But, my colleague from Kentucky has offered an alternative to 
amending the Constitution that would protect the flag and protect the 
Constitution. I will support that alternative approach today.
  Senator McConnell's proposal does not amend the Constitution, but it 
will get the job done by punishing those people who help wage war 
against the symbol of this country and everything it stands for.
  I know that we have gone down this road before by passing statutory 
language to ban flag burning only to have the Supreme Court overturn 
it. But, the McConnell amendment should pass constitutional challenge.
  If there is a way to deal with and punish those who desecrate our 
U.S. flag without amending the Constitution, I am all for it. That is 
why I support the McConnell amendment.
  The McConnell amendment says you cannot get away with abusing the 
flag of the United States. It means that you can't get away with using 
the flag to incite violence. The McConnell amendment says you can't use 
this Nation's symbol of freedom and turn it into a symbol of 
disrespect.
  The McConnell amendment stands for the same things I do. It protects 
the principles embodied in our Constitution--as well as our U.S. flag.
  Mr. SIMPSON. Mr. President, my remarks will last a very few moments. 
I believe the Senator from Virginia was here before I was and is 
seeking recognition.
  The PRESIDING OFFICER. Does the Senator wish to speak in opposition?
  Mr. SIMPSON. No. I will be speaking in accordance with the flag 
amendment desecration, with Senator Hatch.
  Mr. HATCH. I yield 5 minutes to the distinguished Senator from 
Wyoming.
  Mr. SIMPSON. Mr. President, I would like to make certain very brief 
comments on this pending resolution. For a 

[[Page S18379]]
number of years, I have listened and been content--well, not always 
content, but I have listened--to the heated debate surrounding this 
amendment, and I now feel compelled to interject some rich personal 
thoughts of my own.
  Many of the comments I have heard that are taking issue with this 
plan to amend the Constitution center around the issue of free speech. 
Opponents claim that if the flag desecration amendment is adopted, it 
will chill free speech, or will mean that a small majority will be free 
to determine exactly what activities constitute desecration. What these 
often self-proclaimed champions of free speech forget is that certain 
forms of speech are already regulated, including that category of 
speech known as fighting words.
  Back in the 1950's, I was honored to serve my country in the U.S. 
Army. I served in the infantry in Germany for 2 years, in the 10th 
Infantry Regiment of the 5th Division, and with the 2d Armored 
Division, ``Hell on Wheels,'' serving with the 12th Armored Infantry 
Battalion. Every single day for over 2 years, I got up in the morning 
and I saluted that flag, marched in military parades behind it, 
maneuvered with it on the front of an armored personnel carrier, and 
was ready to die for it. All of us who served in the military did that, 
for that was our mission.
  So when I see someone who has never been in the military--oftentimes 
you see that--and someone who does not have a shred of respect for the 
country, but much cynicism--throw a flag on the ground and urinate on 
it, or burn it, and claim he or she is exercising his or her right to 
free speech, it does rise to the level of fighting words to me, in my 
book. And I would surely be willing to bet it does in the books of a 
lot of other law-abiding citizens of this great country.

  That is where I am coming from, and there are those who have served 
in the military and those who feel just as strongly on the other side, 
and I respect those views. But I do have a lot of trouble with people 
who were never in the military and hearing them express themselves on 
the issue on either side. That is clear, in my mind. So I more deeply 
respect the views of those who have worn the colors, who feel just as 
strongly on the other side, but I have great trouble listening to the 
prattle of those who have never even served in the Civil Air Patrol.
  Recently, I read an article on flag desecration by Paul Greenberg in 
the July 6 copy of the Washington Times. He made several points I think 
bear reiterating. He claims, in a witty and substantial style, that 
``our Intelligentsia'' have done their level best to ``explain to us 
yokels again and again that burning the flag of the United States isn't 
an action, but speech, and therefore a constitutionally protected 
right,'' and they cannot understand why a vast majority of the American 
public continues to want this amendment.
  I agree with his conclusion that ``it isn't the idea of desecrating 
the flag that the American people propose to ban.'' Anyone is free to 
stand and to state how much they detest the flag, hate the flag and all 
that it stands for. ``It's the physical desecration of the flag of the 
United States that ought to be against the law.''
  I could not agree more. For as Mr. Greenberg states so eloquently, 
some things in a civilized society should not be tolerated--such as 
vandalizing a cemetery, scrawling anti-Semitic slogans on a synagogue, 
scrawling obscenities on a church, spray-painting a national monument 
or, surely, for that matter, burning of the American flag. It really 
ought to be as simple as that. Period.
  Thank you, Mr. President.
  Mr. ROBB addressed the Chair.
  The PRESIDING OFFICER. The Senator from Virginia is recognized.
  Mr. ROBB. Mr. President, I yield myself 5 minutes against the time 
chargeable to those who oppose the amendment.
  The PRESIDING OFFICER. The Senator is recognized for 5 minutes.
  Mr. ROBB. Mr. President, I rise with a degree of reluctance because 
I'm taking the opposite side from so many friends, and veterans, and 
those who believe very strongly that we ought to have some 
constitutional protection for the flag.
  But I myself feel very strongly that this would be the wrong move for 
us to make.
  I, like many of our fellow Senators, served in the armed services. I 
served in combat. I am one of those who has always respected the flag. 
I never fail to rise to render appropriate honors. Indeed, like all 
others who served, I was willing to die for our flag if necessary--or 
for the underlying freedoms that our flag represents. And yet I believe 
that this amendment moves in the wrong direction.
  We already have in place rules and regulations and statutes that 
prohibit desecration of our flag under certain circumstances. If the 
flag that is being burned does not belong to the individual that is 
burning it, there are already laws in place to cover that kind of 
physical destruction--or desecration. If the flag is being burned for 
the purpose of inciting a riot, or anything along those lines, there 
are already laws in place to prohibit that kind of activity.
  Indeed, the manual that we have on our flag talks about the proper 
way to dispose of a flag. It is listed under ``Respect for the Flag.'' 
Section 176, paragraph K talks about the proper way to dispose of a 
flag that has been rendered no longer useful, one that is either 
tattered, torn, damaged, or somehow rendered less than an appropriate 
symbol of our country. The appropriate way to dispose of that flag is 
to burn that flag.
  The difference that we are talking about with this amendment is the 
difference between an act and an expression of opinion, of speech. And 
it is in precisely those circumstances where the flag is burned to 
convey a message that the freedom that the flag represents--the basic 
democracy of this country--is challenged.
  We nominate for the Nobel Peace Prize many in other countries who 
stand up to dissent peacefully against their government, who say that 
they believe their government is wrong for whatever reason. We have 
nominated, or others have nominated, everybody from Aung San Suu Kyi in 
Burma, who has just been released, to Nguyen Dan Que in Vietnam, Wei 
Jing Sheng in China, Nelson Mandella in South Africa, many in the 
former Soviet Union that were honored because they spoke up and spoke 
out.
  And it is precisely when an individual is threatened by his or her 
government when he or she begins to speak out, that basic freedoms and 
democracy are most threatened. We know that the first sign that freedom 
or democracy is in trouble anywhere around the world is when the 
government starts locking up dissenters, when the freedom of the people 
to express their political opinions is stifled. And this is the 
distinction--the distinction between an act and a message--that I hope 
that we will be able to make when we consider this amendment.
  The acid test of democracy is whether or not we can speak out in 
peaceful dissent against our Government without fear of being arrested, 
or prosecuted, or punished. And in this case, the amendment goes 
directly to the heart of that freedom.
  Now I know that many who support this amendment--many of my fellow 
Senators, many other Members of Congress, and certainly leaders of 
veterans organizations, and others around this country--have a very 
noble cause and purpose. But I happen to believe that cause and 
purpose--that expression of devotion to our country--is best served if 
we don't amend the Constitution in this case.
  Now I am not one that is arbitrarily opposed to amending the 
Constitution, but in this situation the amendment goes directly to the 
heart of what that Constitution protects for us and for all of our 
citizens.
  So I would respectfully urge all of my colleagues to think long and 
hard with all due deference to their patriotism and resist the 
temptation to amend our Constitution in a way that would significantly 
undermine precisely the freedoms and the democracy that we seek to 
protect.
  With that, Mr. President, I yield the floor and I thank the Chair.
  Mrs. MURRAY. Mr. President, as an American, and the daughter of a 
disabled veteran, I take deep pride in our great Nation. To me, the 
flag symbolizes our strength, our democracy, and our unprecedented 
freedoms--freedoms that set us apart from every other country in the 
world. Our Constitution guarantees all of us this freedom, including 
the right to free speech. I believe we should be very cautious about 

[[Page S18380]]
altering this document, because to do so alters the fundamental ideals 
on which our country was built.
  I am deeply troubled by the implications of this proposal; namely, 
that some people believe it is now necessary to force Americans to 
respect their flag by enacting legislation demanding they do so. That 
is wrong and unnecessary. I do not believe this constitutional 
amendment will result in Americans having greater respect for 
authority, for our Government, or for our flag. Rather, I believe this 
amendment reinforces the idea that reverence for one's country and the 
symbols of one's nation must be imposed by law. And, I do not think 
that is what the American people need, nor do I believe this principle 
is consistent with our Nation's history of uncoerced respect for our 
country and flag. Instead, I hope parents will instill in their 
children, just as I have in mine, a deep respect for the flag. I also 
pray our Nation will never again be so divided that burning the flag 
becomes popular or acceptable.
  But it is my father who spoke most directly to my heart on this 
issue. In World War II, my father fought for this Nation in the Pacific 
theater. He was wounded in battle and some doctors believe that the 
shrapnel in his leg may even be the cause of the multiple sclerosis 
from which he has suffered for the last 30 years. When I asked him his 
feelings about this constitutional amendment, he was saddened and 
offended. He explained that he had not fought for the U.S. flag; he had 
fought and suffers still for the freedom that our flag symbolizes. That 
freedom is what this Congress may vote to limit.
  Mr. President, for the ideals embodied in our Constitution, for the 
respect I have for all our flag represents, and most personally, for my 
father's sacrifices, I will vote against this amendment.
  Ms. MIKULSKI. Mr. President, I am deeply concerned about the 
desecration of the U.S. flag because of what it says about our culture, 
our values and our patriotism. But I must vote against this amendment 
to the U.S. Constitution.
  Mr. President, I absolutely do not support the desecration of our 
flag. In 1989, I voted for legislation to prohibit flag desecration. 
And I regret that law was declared unconstitutional by the Supreme 
Court.
  I not only support the flag. I support what the flag stands for. Our 
flag stands for our Constitution. The meaning of our flag is embodied 
in our Constitution--especially the first amendment.
  Today, I continue to oppose the desecration of our flag, and I call 
on Americans to rekindle their patriotism, their values, and their 
civic duty.
  I ask with all the passion and patriotism in me, that those who speak 
about constitutional rights, who talk about their freedom of speech, 
who talk about their freedom of expression--that they exercise 
community responsibility.
  By community responsibility, I mean that each person take the right 
you have to speak, to march, and to organize, but remember when we 
desecrate symbols, we desecrate each other.
  I do not wish to inhibit freedom of expression. But I want us to live 
in a culture that calls people to their highest and best mode of 
behavior. But we are not doing that in our society today.
  We cannot build a society for the 21st century that advocates 
permissiveness without responsibility. For every right there is a 
responsibility. For every opportunity, there is an obligation.
  I am very frustrated about what is going on in our country. I believe 
there is a war being waged--against our people, against our symbols, 
and against our culture.
  When I go into the neighborhoods, moms and dads tell me that the 
toughest job in this country today is being a parent, providing for 
their families and teaching their children the values of our society.
  Love your neighbor; love your country; be a good kid; honor your 
father and your mother; respect each other. These moms and dads feel 
that no one is looking out for them. The very values they teach in the 
home are being eclipsed and eroded by the culture that surrounds us. 
And some children do not even get that much attention.
  We should--and need to--have a national debate on these issues.
  But we cannot change the culture by changing the Constitution. We 
change the culture by living the Constitution--by speaking out 
responsibly and by organizing. I support amendments to expand the 
Constitution, not constrict it.
  Mr. President, I am a U.S. Senator because of amendments to the 
Constitution--amendments that allowed me to organize and to speak--
amendments like the 1st amendment and the 19th amendment.
  The first amendment allowed me to speak up and speak out in protest 
to save a Baltimore community whose homes were about to be leveled for 
a 16-lane highway.
  We organized. We protested. We exercised free speech. I challenged 
the thinking of city hall and all the road planners. The community 
liked what I was saying. I spoke for them and their frustrations, and 
they encouraged me to run for political office.
  That experience took me into neighborhoods where they said no woman 
could win. But, I did. And the 19th amendment--which gave women the 
right to vote--helped me get here. And I made history. That happened 
because of amendments to the Constitution.
  So, I know the power of the Constitution. And I know the power of 
amending it.
  But all the past amendments have expanded democracy and expanded 
opportunity. This amendment we consider today would constrict the very 
freedoms that have allowed me to be here.
  Mr. President, I am thankful to the people of Maryland who sent me 
here, and America's veterans should know today I am voting for what 
they fought for and all the people who work every day to make our 
country great.
  Yes, I believe we can and should have a law to end the desecration of 
our flag. Yes, we need more community responsibility, more patriotism, 
more civic participation, values, and virtue.
  I hope to cast my vote today to continually use the Constitution to 
expand democracy and not to constrict it.
  Now is not the time to change the course. Now is not the time to 
tamper with laws, precedents and principles that have kept us in good 
stead for two centuries.
  Mr. President, I take amending the Constitution very seriously, and I 
will not vote today to change it.
  Mr. HATFIELD. Mr. President, I support Senate Joint Resolution 31, 
the Flag Protection and Free Speech Act of 1995, introduced by the 
distinguished chairman of the Judiciary Committee, Senator Hatch. Let 
me compliment my friend from Utah for his steadfastness on this complex 
and at times emotional issue.
  As one who saw the Stars and Stripes go up at Iwo Jima, I can say I 
share the feelings of pride for our flag that have been sincerely 
expressed by Senators on both sides of this debate. If the flag 
symbolizes this Nation and the freedoms it provides, the Constitution 
is the living legal document under which this nation was created and 
pursuant to which those freedoms are guaranteed. While I have 
consistently supported legislative measures to protect the flag from 
those misguided souls who would deface it, I have been reluctant to 
amend the Constitution to do so.
  Unfortunately, it appears that passage of an amendment to the 
Constitution is the only avenue available to address this problem given 
the fairly clear decisions that have been issued by the Supreme Court 
on this precise legal point. In June 1989, the Supreme Court handed 
down the landmark decision of Texas versus Johnson, in which it 
overturned a Texas statute punishing flag desecration on the grounds 
that it violated the free speech protection guaranteed by the first 
amendment to the Constitution. This holding had the effect of 
overturning 48 State flag desecration statutes, including the Texas 
statute, and one Federal statute.
  In October of that same year, this body passed the Flag Protection 
Act in direct response to the Johnson case. Legal scholars, including 
Harvard's Lawrence Tribe, advised Congress that the statutory approach 
being considered would pass constitutional muster. I supported this 
statutory effort and opposed the constitutional amendment voted on 
later that month.
  On June 11, 1990, the Supreme Court, in U.S. versus Eichman, struck 
down the flag protection statute which I had supported the prior year. 
On June 26, 

[[Page S18381]]
1990, the Senate failed in its attempt to assemble the two-thirds 
margin necessary to pass the constitutional amendment. However, on this 
occasion I voted in favor of the constitutional amendment because of 
the direct rejection of the statutory approach by the Supreme Court.
  I intend to support Senate Joint Resolution 31 when it is voted on 
this week. While I will continue to listen to the arguments in favor of 
and against the amendment proposed by my friend from Kentucky, Mr. 
McConnell, I am not convinced it would be upheld by the Supreme Court. 
Furthermore, I am concerned that it would apply only in rare cases and 
thus leaves too great a loophole for those who wish to deface the flag.
  Mrs. BOXER. Mr. President, this is an important debate we are 
undertaking here today, in the Senate, because it focuses on changing 
the cornerstone of American democracy: the U.S. Constitution.
  The Constitution's principles transcend the few words which are 
actually written. Hundreds of thousands of American men and women have 
made the ultimate sacrifice in defense of these principles. And this 
remarkable, living document continues to inspire countless others 
struggling in distant lands for the promise of freedom.
  In the 204 years since the ratification of the Bill of Rights, we 
have never passed a constitutional amendment to restrict the liberties 
contained therein. In our Nation's history, we have only rarely found 
it necessary to amend the Constitution. There are only 27 amendments to 
the Constitution--only 17 of these have passed since the Bill of 
Rights.
  The first amendment to the Constitution states:
       Congress shall make no law respecting an establishment of 
     religion, or prohibiting the free exercise thereof; or 
     abridging the freedom of speech, or of the press, or the 
     right of the people to peaceably assemble, and to petition 
     the Government for a redress of grievances.

  The amendment before us would create a new constitutional amendment 
to enable the Congress to prohibit the physical desecration of the U.S. 
flag.
  Desecration of the flag is reprehensible. The issue for me is since 
there are countless examples of actions and speech which are, in my 
opinion, morally reprehensible, are we starting down a path that will 
lead to amendment after amendment to the Constitution--changing the 
very nature of that magnificent document. Some of these reprehensible 
areas for me are: Shouting obscenities at our men and women in uniform; 
burning a copy of our Constitution or the Declaration of Independence; 
speaking obscenely about our country or its leaders; demeaning our 
Nation in any way; burning the Bible; vile speaking about religion or 
God; and denigrating the Presidency as an institution, no matter who is 
in office.
  All these things are vile to me and I have nothing but contempt for 
people who do such things. But, I think the question is this: Is it 
necessary for the greatest Nation in the world to amend the greatest 
document in the world to outlaw each of these offenses?
  The passage of a constitutional amendment to prohibit flag 
desecration is a priority for this Republican Congress. The House of 
Representatives led the charge by passing the constitutional amendment 
in June.
  So, I say to my colleagues here in the Senate: We have a choice to 
make. Do we stand behind Speaker Newt Gingrich and the House of 
Representatives? Or do we stand with the Founding Fathers? I, for one, 
choose to stand with the Founders--Thomas Jefferson, James Madison, and 
Ben Franklin, among others.
  I believe that many flag burnings can be addressed by existing 
constitutional statutes passed by the States and localities to prohibit 
or limit burning and open fires. States and localities have the ability 
to enforce these fire code provisions, thereby prohibiting or limiting 
incidents of flag burning for valid safety reasons.
  For example, in the city of San Francisco, the city fire code 
contains a general ban on open burning. It states:

       It shall be unlawful for any person to ignite, kindle, 
     light or maintain, or cause or allow to be ignited, kindled, 
     lighted, or maintained, any open outdoor fire within the city 
     and county of San Francisco.

  In the cities of Chula Vista in San Diego County and Fountain Valley 
in Orange County, CA, open burning may only be conducted by notifying 
the fire department or obtaining a permit. An individual who fails to 
comply with the code can be found guilty of a misdemeanor.
  In addressing open fires, the fire prevention code of New York City, 
states:
       It shall be unlawful for any person to kindle, build, 
     maintain or use a fire upon any land or wharf property within 
     the jurisdiction of the city of New York.

Violation of the code results in money fines or imprisonment.
  So, it is clear that authority already exists for States and 
localities to control or limit the burning of flags under their ability 
to protect the safety of their residents. And while this only covers 
one form of desecration--burning--where a flag being desecrated belongs 
to someone else, or the United States, State laws against larceny, 
theft, or destruction of public property can be invoked against the 
offender.
  In addition, S. 1335, the Flag Protection and Free Speech Act of 
1995, introduced by Senators McConnell, Bennett, and Dorgan, would 
create new statutory penalties for damage or destruction of the flag. I 
support S. 1335 as an effort to punish the reprehensible conduct of 
flag desecration in a manner consistent with the Constitution.
  S. 1335 would criminalize the destruction or damage of the flag in 
three circumstances. Where someone destroys or damages the flag with 
the intention and knowledge that it is reasonably likely to produce 
imminent violence or a breach of the peace, under S. 1335, such actions 
would be punishable with fines up to $100,000 and 1 year of 
imprisonment.
  The McConnell legislation also creates stiff new penalties where an 
individual intentionally damages a flag belonging to the United States, 
or steals a flag belonging to someone else and damages it on Federal 
land. In either situation, the individual could be subject to penalties 
of up to $250,000 in fines and 2 years of imprisonment.
  By creating tough criminal penalties for desecration of the flag 
through statute, we punish reprehensible conduct without having to 
amend the Constitution. Moreover, in a Congressional Research Service 
analysis of the Flag Protection and Free Speech Act of 1995, the 
American Law Division opined that S. 1335 should survive constitutional 
challenge based on previous Supreme Court decisions.
  Mr. President, desecration of one our most venerated objects --the 
American flag--is deeply offensive to me and most Americans. But I do 
not believe we need to modify our Constitution in order to protect the 
flag. We can protect the flag with existing laws and through the 
enactment of new criminal penalties for damage and destruction of the 
U.S. flag without having to alter our guiding document, the U.S. 
Constitution.
  Mr. KERRY. Mr. President, I went to Vietnam because another Congress 
told me I had to go to protect freedom--including the first amendment--
and defeat communism. I went; and I am honored to have served, but, 
here I am--today--forced to come to the floor of the U.S. Senate to 
fight for freedom once again and engage my colleagues in a debate about 
a flag burning amendment.
  Those same colleagues--on one hand--want to amend the first amendment 
for the first time in 200 years and abridge our most basic freedom in 
the name of patriotism--and on the other--cut benefits for veterans 
which is--in my view--the most unpatriotic thing we can do.
  This is the ultimate irony.
  Over the last few months--they have come to this floor with endless 
speeches about preserving this democracy--their agenda does exactly the 
opposite. It dishonors veterans with the most destructive budget to 
veterans that I have ever seen in my years here. My Republican 
colleagues came to the floor with Medicaid cuts this year that would 
have eliminated coverage for 4,700 Massachusetts veterans--2,300 of 
them under the age of 65, disabled, and ineligible for Medicare 
coverage. The remaining 2,400 are over 65 and 1,200 of them are in 
nursing homes.
  Mr. President, if we vote to amend the Constitution and raise the 
symbols of this Nation to the level of freedom itself, and we chip away 
at the first amendment to protect the flag--then what next? What other 
symbol do we 

[[Page S18382]]
raise to constitutional status? We all have special symbols to us that 
represent America and democracy, but to give them constitutional status 
is, at best, an extraordinary overreaction to a virtually nonexistent 
problem. According to the Congressional Research Service there were 
three--count them--three--incidents of flag burning in the United 
States in 1993 and 1994. That is not exactly a major problem in our 
country.
  Even Roger Pilon of the Cato Institute, in a recent editorial, said 
that, and I quote:
       This issue is left-over from the dimmest days of the Bush 
     administration, when a desperate grasp for symbols masked an 
     abject want of ideas.

  And it was Ronald Reagan who said, as my colleague from Kentucky, 
Senator McConnell, pointed out in his editorial yesterday in the 
Washington Post, ``Don't be afraid of freedom; it is the best weapon we 
have.'' But here we are again--debating a constitutional amendment to 
abridge that freedom.
  Mr. President, I, like everyone in this Chamber, abhor seeing anyone 
burning the flag under any circumstances. It hurts me to see it. It has 
always hurt me. I thought it was wrong in the Vietnam era, just as I do 
now, but I never saw the act of flag burning--nor could I ever imagine 
seeing it--as unconstitutional. To burn the flag is exactly the 
opposite--it is the fundamental exercise of constitutional rights--and 
we cannot fear it, stop it, or set a precedent that abridges basic 
freedoms to show our outrage about it.
  What we must do is tolerate the right of individuals to act in an 
offensive, even stupid manner.
  Mr. President, as a former prosecutor I know that most flag burning 
incidents can be prosecuted under existing law. If a person burns a 
flag that belongs to the Federal Government--that constitutes 
destruction of Federal property, which is a crime.
  Mr. President, 54 years ago last week, was the day that Franklin 
Roosevelt said would ``live in infamy.''
  And I ask: Do we honor those who have served their country so ably, 
so bravely--do we honor our veterans by changing the first amendment, 
by trimming out fundamental freedoms they fought for?
  In fact, I suggest that if we pass this constitutional amendment, 
this day will go down--once again--as a day that will live in infamy. 
For it will be the day when the greatest country on Earth limited the 
basic freedoms because of the stupid, incentive, hurtful acts of a very 
few people on the fringes.
  We are better than that, Mr. President. We are smarter than that. We 
are smart enough to honor our Nation, our liberty, and our veterans 
without sacrificing our freedom.
  In the final analysis, I think if Congress and the country want to do 
something serious to help our veterans, then we should focus on the 
quality of veterans benefits, the ability of veterans to have access to 
health care--on the POW/MIA issue and issues like agent orange. These 
are the serious bread-and-butter and health issues for those who 
sacrificed so much for America, and I'm working hard to make sure that 
America keeps its contract with our veterans.
  But I do not believe that keeping the faith with our veterans means 
changing the first amendment for the first time in 200 years.
  Mr. President, the Constitution is hardly a political tool to be 
pulled from the tool chest when someone needs to tighten a nut or a 
bolt that holds together one particular political agenda.
  This is not an easy vote for me. I've been told that there are 
veterans in my State--in Massachusetts--who feel so strongly about this 
issue that they will follow me all over the State if I vote against 
this amendment; but let me make it very clear that to me the flag is a 
symbol of this country, it is not the country itself. The Bill of 
Rights is not a symbol; it is the substance of our rights--and I will 
not yield on that fundamental belief and I will not yield in my deep 
and abiding commitment to the men and women who served this country and 
sacrificed so much for the freedoms symbolized by the Stars and 
Stripes.
  I thank my colleagues and I yield the floor.
  Mr. DODD. Mr. President, the Members of this body should not risk the 
desecration of our Constitution simply to express outrage against those 
who desecrate the flag.
  The issue before us today has absolutely nothing to do with condoning 
the behavior of those few who choose to defile one of our most 
cherished national symbols. Every Senator is troubled when someone 
burns, mutilates, or otherwise desecrates an American flag. There is no 
question about that. The issue is whether we tinker with the Bill of 
Rights in an attempt to silence a few extremists who openly express 
their contempt for our flag.
  I am very reluctant to amend our the Constitution. In over 200 years, 
we have only amended that fundamental text 27 times, and we have never 
amended the Bill of Rights. In my view, we should not risk undermining 
the freedoms in the Bill of Rights unless there is a compelling 
necessity. I do not believe that the actions of a few flag burners has 
created that necessity.
  Throughout our history we have recognized that the best remedy for 
offensive speech is more speech, and not a limitation on the freedom of 
speech. Supreme Court Justice Oliver Wendell Holmes expressed this idea 
very eloquently in his opinion in Abrams v. United States, 250 U.S. 
616, 630 (1919):

       [W]hen men have realized that time has upset many fighting 
     faiths, they may come to believe even more than they believe 
     the very foundations of their own conduct that the ultimate 
     good desired is better reached by free trade in ideas--that 
     the best test of truth is the power of the thought to get 
     itself accepted in the competition of the market, and that 
     truth is the only ground upon which their wishes safely can 
     be carried out.

  Clearly, flag burning has not fared well in the marketplace of ideas. 
Across this country, Americans are quick to express their disdain for 
those who desecrate the flag. The powerful symbolic value of our flag 
remains unscathed.
  In the past, I have supported Federal statutes designed to balance 
the need to protect the flag with the freedom of speech. In 1989, I 
joined with other Members of Congress to help pass the Flag Protection 
Act. In my view, that legislation was a measured response to this 
issue. Regrettably, the Supreme Court struck down that statute in 
United States versus Eichman.
  This year, Senator McConnell has offered a more narrowly crafted 
measure. I will support that amendment and I urge my colleagues to do 
the same. We should continue to try to address this issue statutorily, 
rather than through the more dramatic step of amending the 
Constitution.
  In closing, I urge my colleagues to oppose this effort to amend the 
Constitution. We should continue to speak out against those who would 
desecrate the American flag, but we should not weaken its power by 
undermining the freedoms for which it stands.
  Mr. PELL. Mr. President, today, the Senate is undertaking the solemn 
task of the considering an amendment to our Nation's Constitution. 
Indeed, the proposed language we are considering would, according to 
the Supreme Court and numerous legal observers, amend the Bill of 
Rights, the very core of personal liberties and freedoms enshrined and 
protected in our national charter.
  The Congress has considered this issue before and while it has 
assented to statutorial protection of the flag, it rejected amending 
the Constitution for the same purpose, positions that I supported. I do 
so again today, believing that the our flag should be cherished and 
revered and find deliberated acts to desecrate it offensive. I also 
believe that the flag can be protected without infringing upon our 
first amendment guarantee of free expression.
  In the Congress' last attempt to do so our approach was rejected by 
the Supreme Court. I believe that this time, however, the more 
carefully constructed statutes protecting the integrity of the flag 
offered by Senators Biden and McConnell today stand a much better 
chance of passing constitutional muster and hope that my colleagues 
will join me in supporting them.
  However, when it comes to amending the Constitution to prohibit flag 
desecration, I simply believe that that approach goes too far. The 
principles enshrined by our Founding Fathers in the Bill of Rights have 
not been altered in over 200 years and I cannot support the effort to 
do so here. Make no mistake: I love and respect the American flag 

[[Page S18383]]
and all that it symbolizes. Nevertheless, as I have often said, I 
simply believe that our flag will wave more proudly if as we seek to 
protect it, we also protect the Bill of Rights.
  Accordingly, I cannot support the proposed constitutional amendment 
to prohibit flag descration.
  Mr. BRADLEY. Mr. President, our American flag is best protected by 
preserving the freedom that it symbolized. I cannot support a 
constitutional amendment that would limit that freedom. At the same 
time, I believe that anyone who burns the American flag is an 
ungrateful lowlife who fails to understand how special and unique our 
country is, and I tremendously respect those New Jerseyans who support 
this amendment and have urged my support with great dignity and 
conviction.
  Like most Americans, I revere the flag as a symbol of our national 
unity. I want it protected from abuse. That is why I strongly supported 
the Flag Protection Act of 1989, which sought to punish those who would 
destroy our flag. That is why I regretted the Supreme Court's 
subsequent decision in United States versus Eichmann, which declared 
the law in violation of the first amendment. That is also why I 
enthusiastically support and today urge passage of another law that 
would make it illegal for someone to burn a flag, if the act itself 
would incite violence.
  In our system, the first amendment is what the Supreme Court at a 
particular time says it is. The Court has said that the Flag Protection 
Act violates freedom of expression. A future Supreme Court may reverse 
that decision. Although I wish the Supreme Court had ruled the other 
way, it did not. The question now is whether protecting the flag merits 
amending the Bill of Rights.
  In making the decision to oppose this amendment, I consulted my heart 
and my mind. My heart says to honor all those who died defending 
American liberty. My heart conjures up images of the marines holding 
the flag on Iwo Jima, the crosses in the fields at Flanders, the faces 
of friends who never came back from Vietnam.
  My heart says, what a nation believes in, what it will preserve, what 
it will sacrifice for, fight for, die for, is rarely determined by 
words. Often people cannot express in language their feelings about 
many things. How do I know?
  Because I struggle with it every day.
  Remember the pain you felt when the Challenger exploded before your 
eyes? Remember the joy you felt when World War II and the Korean war 
ended? Remember the shock you felt when you learned of the 
assassinations of President Kennedy and Martin Luther King? Remember 
the feelings of attachment you have for the Lincoln Memorial, the 
Statue of Liberty, the U.S. flag?
  These are symbols and shared memories for places, events, and things 
that tie us to our past, our country, and to each other, even when 
there are no words at all. When someone gives respect and recognition 
to them, we are moved, sometimes to tears. When someone demeans them or 
shows disrespect, we are outraged.
  My heart says honor the flag, and I do. My mind says, when our 
children ask why America is special among the nations of the world, we 
tell them about the clear, simple words of the Bill of Rights, about 
how Americans who won our independence believed that all people were 
blessed by nature and by God, with the freedom to worship and to 
express themselves as they please. We found these truths to be self-
evident before any other nation in the world did, and even before we 
created the flag to symbolize them.
  Our Founding Fathers believed that fundamental to our democratic 
process was the unfettered expression of ideas. That is why the 
amendment that protects your right to express yourself freely is the 
first amendment, and politicians should never put that right at risk.
  Now if this constitutional amendment passes, we will have done 
something no Americans have ever done--amended the Bill of Rights to 
limit personal freedom.
  Even if you agree with the flag amendment, how can you know that the 
next amendment will be one you will like? You cannot. So let us not 
start. Once you begin chipping away, where does it stop? Do not risk 
long-term protection of personal freedom for a short-term political 
gain.
  America's moral fiber is strong. Flag burning is reprehensive, but 
our Nation's character remains solid. My best judgment says we are in 
control of our destiny by what we do every day. We know the truth of 
Mrs. Barbara Bush's words that America's future will be determined more 
by what happens in your house than by what happens in the White House.
  I have traveled America for over 25 years. I know we still have 
standards, insist on quality, believe in hard work, honesty, care about 
our families, have faith in God.
  A rapidly changing world looks to us to help them define for 
themselves what it means to be free. Our leadership depends more than 
ever on our example. This is the time to be confident enough in our 
values, conscientious enough in our actions, and proud enough in our 
spirit to condemn the antisocial acts of a few despicable jerks without 
narrowing our basic freedoms.
  My mind says that the best way to honor those who died to preserve 
our freedom is to protect those freedoms and then get on with the 
business of making America a better place.
  I took an oath to support and to defend the Constitution of the 
United States. Each Senator has to decide in her own mind and in his 
own heart what he feels he must do, to fulfill the promise he made to 
preserve and to stand by the Constitution. Different Senators will 
arrive at different answers. For me, this amendment does not preserve 
the Constitution. To the contrary, it constricts, narrows, limits--
makes it less than it was before. To preserve means to keep intact, to 
avoid decay, but this amendment would leave freedom of expression less 
intact, less robust, more in a state of decay. To support an amendment 
which would, for the first time in 204 years, reduce the personal 
freedom that all Americans have been guaranteed by the Constitution 
would be, for me, inconsistent with my oath. I will never break my 
oath.
  Finally, in his dissenting opinion on flag burning, Justice Stevens 
warned us about using the flag ``as a pretext for partisan dispute 
about meaner ends.'' Politics can be a mean business, but it can also 
be a glorious business. Sometimes an event has unexpected consequences. 
Let's be frank; there is patriotism on both sides of this debate. So 
let me tell you what I believe about patriotism.
  Patriotism--I know how it feels to be proud to be an American. I 
remember how I felt back in 1964 when the United States Olympic 
basketball team defeated the Soviet Union in the finals--I remember 
standing on the victory stand, with the gold medal around my neck, 
chills running up and down my spine, as the flag was raised and the 
national anthem played.
  I was proud to have won--for myself and for my country.
  Patriotism--it is like strength. If you have it, you do not need to 
wear it on your sleeve.
  The patriot is not the loudest one in praise of his country, or the 
one whose chest swells the most when the parade passes by, or the one 
who never admits we could do anything better.
  No, a patriot is one who is there when individual liberty is 
threatened from abroad, whether it is World War I, World War II, Korea, 
Vietnam, or even the wrongheaded action in Beirut in 1983--yes, that 
too. All those who served in these conflicts were defending liberty as 
our democracy chose, in its sometimes fallible way, to define the need 
to defend liberty.
  But you do not need a war to show your patriotism. Patriotism is 
often unpretentious greatness. A patriot goes to work every day to make 
America a better place--in schools, hospitals, farms, laboratories, 
factories, offices, all across this land. A patriot knows that a 
welfare worker should listen, a teacher should teach, a nurse should 
give comfort. A patriot accords respect and dignity to those she meets. 
A patriot tries, in a secular as well as a spiritual sense, to be his 
brother's keeper.
  When the only grandfather I ever knew came to America, he went to 
work in a glass factory. He worked with his hands, and he worked long 
and hard. After work he lived for three things: The first thing he 
lived for was going to the public library on a Saturday night to check 
out western novels, 

[[Page S18384]]
which he would read and reread over and over again. The second thing he 
lived for was to sit on his front porch on summer nights with a 
railroad whistle in the background and listen on the radio to his real 
love, baseball. And the third thing he lived for was to tell his 
grandson--me--what America meant to him.
  He said America was great because it was free and because people seem 
to care about each other. Those two, freedom and caring, are the two 
inseparable halves of American patriotism. As Americans who love our 
flag, we must not sacrifice the substance of that freedom for its 
symbol, and we must learn to care more about each other. We must not 
restrict our fundamental freedom. To do so, I believe, would betray the 
meaning of the oath I took to support the Constitution and the promise 
I made to myself to always do what I thought was right.
  I oppose this amendment.
  Mr. LEVIN. Mr. President, I cannot support the proposed 
constitutional amendment. I detest flag burning, but I also love the 
U.S. Constitution.
  This country stands for a set of ideals of human freedom that are 
embodied in the Constitution and the Bill of Rights, and symbolized by 
the American flag. There are a handful of individuals who hold these 
ideals in such disrespect that they choose to express their hostility 
by taking a copy of the Constitution--or the flag--and burning it or 
tearing it up. The Supreme Court has ruled that however despicable this 
action may be, our Constitution protects these misguided individuals in 
the expression of their views--just as it protects the expression of 
hateful and despicable ideas by other misguided individuals.
  As much as I revere the flag, I love the Constitution, the Bill of 
Rights, and the liberties that are enshrined in them. In a 1989 
Washington Post article, James Warner--who was captured and held as a 
prisoner of war by the Vietnamese--eloquently explained the vital 
importance of the principles of freedom embodied in our Bill of Rights. 
Mr. Warner stated:

       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 that I am right. In my 
     country we are not afraid of freedom, even if it means that 
     people disagree with us.''

  I cannot let the despicable actions of the few who choose to express 
their misguided impulses by attacking our flag cause me to amend the 
Constitution and the Bill of Rights that have served us so well for 200 
years. To do so would be to enable those few individuals to achieve 
something that no power on earth has been able to accomplish for over 
two centuries--to force us to modify the basic charter of our liberties 
that are guaranteed in the Bill of Rights.
  Our Constitution has been amended only 17 times since the adoption of 
the Bill of Rights in 1789. The Bill of Rights itself has never been 
amended. A constitutional amendment is an extremely serious step, which 
is justified only to address a grave national problem. In this case, 
the proposed constitutional amendment is directed at an extremely small 
number of cases that have had no discernible impact on the health or 
security of the Nation. As the Port Huron Times Herald pointed out on 
October 14--

       Less than a handful choose flag-burning as their means of 
     protest. It is so distasteful a display that no clear-
     thinking citizen could endorse it.

  We should not agree to amend the Bill of Rights, which protects our 
most basic freedoms, to address the extreme behavior of a few erratic 
individuals.
  I also do not believe that the proposed amendment is likely to 
succeed in actually protecting the flag in any case, because people who 
are so deluded or misguided as to burn a flag simply to get our 
attention are no less likely to do so just because there is a law 
against it. Indeed, they may be more likely to burn the flag if they 
believe that violation of a constitutional amendment will attract more 
attention to their antics. As the Traverse City Record-Eagle stated on 
November 2, a constitutional amendment--

       . . . won't even stop those few people who want to raise a 
     ruckus by burning the flag from doing so. In fact, the extra 
     attention a constitutional amendment would focus on the act 
     might even encourage it.

  Mr. President, the proposed amendment, as drafted, could also be 
easily evaded. The amendment does not define the flag. Does it cover 
Jasper Johns' famous painting of overlapping flags? Does it apply to a 
T-shirt with a picture of the flag on it? How about wearing a flag T-
shirt with holes in it? Is a 49-star flag a flag of the United States? 
Does it apply if a flag is hung upside down? Would it prohibit the use 
of the flag in commercial advertisements? These questions, and dozens 
like them, would be left unanswered.
  So the amendment would not only amend our Bill of Rights for the 
first time, it would do so without realistic prospect of successfully 
preventing the offensive activity at which it is directed.
  Senator Biden's substitute amendment, unlike the underlying proposal, 
would at least address the objective actions of a person who burns or 
destroys a flag, rather than the subjective state of mind of that 
individual. I voted for the Biden alternative because it is preferable 
to the underlying proposal, even though it does not correct most of the 
problems that I have outlined.
  Flag burning is reprehensible. If we could bar it by statute, without 
amending the bill of rights, I would do so. Indeed, I have voted for a 
flag-burning statute in the past and I voted for the McConnell-Bennett-
Dorgan statute when it comes up for a vote. But I am not willing to 
tinker with our Bill of Rights and for this reason, I cannot vote for 
final passage of the proposed constitutional amendment.
  In my view, Mr. President, we can show no greater respect to the flag 
than by showing contempt for those who disrespect it, while preserving 
the freedoms for which it stands. The constitutional amendment that is 
before us today is the same amendment that I voted against in 1990. My 
position has not changed, and I shall again vote against this proposed 
amendment.
  Mr. SMITH. Mr. President, I rise in support of Senate Joint 
Resolution 31, the flag protection constitutional amendment. As an 
original cosponsor of Senate Joint Resolution 31, I am pleased to see 
that this important measure will be coming before the Senate for a 
final vote today.
  Mr. President, the flag of the United States is the central, 
unifying, and unique symbol of our great Nation. Throughout our 
history, tens of thousands of Americans have given their lives while 
serving under our flag in time of war. In my own family, my father, 
Donald E. Smith, died in a Navy service-related incident during World 
War II. My family was presented with his burial flag. That flag means a 
great deal to us.
  Desecrating the American flag is a deliberately provocative act. It 
is also an attack on the Nation itself, as symbolized by our flag. Such 
acts do not merit the protection of the law. On the contrary, those who 
commit them deserve to be punished by the law.
  Mr. President, this constitutional amendment ought not to be 
necessary. The need for it became clear, however, when the Supreme 
Court of the United States struck down as unconstitutional both a State 
and a Federal flag protection statute. The Court held that such 
statutes violate the free speech protections of the first amendment to 
the Constitution.
  I strongly disagree with those Supreme Court decisions. As the Court 
itself has recognized, our Nation's treasured right of free speech is 
not absolute. One does not have the right to yell fire! in a crowded 
theater, for example. In exceptional cases when the Government's 
interests are sufficiently compelling, the right to free speech may be 
carefully circumscribed. The Government's interest in protecting our 
Nation's central, unique symbol are sufficiently compelling, in my 
view, to justify limiting the right of political dissenters to 
desecrate the flag.
  Mr. President, while the great Constitution that the Founders framed 
has survived many tests, it also has been amended 26 times. The people 
of the United States are not forced to accept a Supreme Court decision 
with which they fundamentally disagree. The Constitution itself grants 
the people, as represented by the Congress and the State legislatures, 
the right to amend it in order to reverse erroneous decisions by the 
Court. 

[[Page S18385]]

  I recognize that amending the Constitution is serious business. That 
is why we took the intermediate step of fashioning a Federal flag 
protection statute in the wake of the Court's decision striking down 
Texas's State law. When the Court also struck down the Federal statute, 
we had no choice but to move forward with this flag protection 
constitutional amendment.
  Mr. President, I urge my colleagues to vote in favor of this 
constitutional amendment authorizing the Congress to enact legislation 
to protect our Nation's great flag. I am optimistic that this measure 
can be passed by the requisite two-thirds majority of the Senate today 
and will be submitted to the States for prompt ratification.
  Thank you, Mr. President, I yield the floor.
  Ms. SNOWE. Mr. President, I am proud to join Senators Hatch and 
Heflin to urge passage of the proposed constitutional amendment 
granting Congress the power to prohibit the physical desecration of the 
flag of the United States.
  Our flag occupies a truly unique place in the hearts of millions of 
citizens as a cherished symbol of freedom and democracy. As a national 
emblem of the world's greatest democracy, the American flag should be 
treated with respect and care. Our free speech rights do not entitle us 
to simply consider the flag as personal property, which can be treated 
any way we see fit including physically desecrating it as a legitimate 
form of political protest.
  We debate this issue at a very special and important time in our 
Nation's history.
  This year marks the 50th anniversary of the Allies' victory in the 
Second World War. And, 54 years ago last week, Japanese planes launched 
an attack on Pearl Harbor that would begin American participation in 
the Second World War.
  During that conflict, our proud marines climbed to the top of Mount 
Surabachi in one of the most bloody battles of the war. No less than 
6,855 men died to put our American flag on that mountain. The sacrifice 
of the brave American soldiers who gave their life on behalf of their 
country can never be forgotten. Their honor and dedication to country, 
duty, freedom, and justice is enshrined in the symbol of our Nation--
the American flag.
  The flag is not just a visual symbol to us--it is a symbol whose 
pattern and colors tell a story that rings true for each and every 
American.
  The 50 stars and 13 stripes on the flag are a reminder that our 
Nation is built on the unity and harmony of 50 States. And the colors 
of our flag were not chosen randomly: red was selected because it 
represents courage, bravery, and the willingness of the American people 
to give their life for their country and its principles of freedom and 
democracy; white was selected because it represents integrity and 
purity; and blue because it represents vigilance, perseverance, and 
justice.
  Thus, this flag has become a source of inspiration to every American 
wherever it is displayed.
  For these reasons and many others, a great majority of Americans 
believe--as I strongly do--that the American flag should be treated 
with dignity, respect and care--and nothing less.
  Unfortunately, not everyone shares this view.
  In June 1990, the Supreme Court ruled that the Flag Protection Act of 
1989, legislation adopted by the Congress in 1989 generally prohibiting 
physical defilement or desecration of the flag, was unconstitutional. 
This decision, a 5-4 ruling in U.S. versus Eichman, held that burning 
the flag as a political protest was constitutionally protected free 
speech.
  The Flag Protection Act had originally been adopted by the 101st 
Congress after the Supreme Court ruled in Texas versus Johnson that 
existing Federal and State laws prohibiting flag-burning were 
unconstitutional because they violated the first amendment's provisions 
regarding free speech.
  I profoundly disagreed with both rulings the Supreme Court made on 
this issue. In our modern society, there are still many different 
forums in our mass media, television, newspapers and radio and the 
like, through which citizens can freely and fully exercise their 
legitimate, constitutional right to free speech, even if what they have 
to say is overwhelmingly unpopular with a majority of Americans 
citizens.
  When considering the issue, it is helpful to remember that prior to 
the Supreme Court's 1989 Texas versus Johnson ruling, 48 States, 
including my own State of Maine, and the Federal Government, had anti-
flag-burning laws on their books for years.
  Whether our flag is flying over a ball park, a military base, a 
school or on a flag pole on Main Street, our national standard has 
always represented the ideals and values that are the foundation this 
great Nation was built on. And our flag has come not only to represent 
the glories of our Nation's past, but it has also come to stand as a 
symbol for hope for our Nation's future.
  Let me just state that I am extremely committed to defending and 
protecting our Constitution--from the first amendment in the Bill of 
Rights to the 27th amendment. I do not believe that this amendment 
would be a departure from first amendment doctrine.
  I strongly urge my colleagues to uphold the great symbol of our 
nationhood by supporting Senator Hatch and the flag amendment.
  Thank you very much.
  Mr. KEMPTHORNE. Mr. President, I rise today to express my firm 
support for Senate Joint Resolution 31. As an original cosponsor of 
this resolution proposing a constitutional amendment to prohibit the 
desecration of the flag, I believe enactment of this resolution is an 
important step in restoring the right of this society to protect the 
symbol of our Nation.
  Mr. President, the people of Idaho have clearly expressed their 
desire to be able to protect Old Glory. I am pleased to note the Idaho 
State Legislature passed a resolution to this effect 2 years ago. In 
asking the Congress to present an antiflag desecration amendment to the 
States for ratification, the Idaho Legislature stated, ``. . . the 
American Flag to this day is a most honorable and worthy banner of a 
nation which is thankful for its strengths and committed to curing its 
faults, and a nation which remains the destination of millions of 
immigrants attracted by the universal power of the American ideal . . 
.''.
  Some have claimed the passage of this resolution will weaken the 
sanctity of the first amendment. To these people I would ask, was the 
first amendment weak during the first 198 years after its ratification? 
Until the Supreme Court ruled flag desecration to be protected free 
speech in 1989, 48 States and the Federal Government had statutes which 
penalized an individual for desecrating the flag. I do not believe the 
time in our Nation's history prior to 1989 may realistically be viewed 
as a dark period in which Americans were denied their constitutional 
rights. The truth is, protecting the flag of the United States has long 
been a proud part of our national history. What we are attempting to do 
today is preserve that history.
  In fact, I believe it is interesting to note that the Supreme Court 
specifically noted in 1974 Smith versus Goguen that flag desecration 
was not protected speech under the Constitution. In overturning a 
Massachusetts State law which protected the flag, the Court ruled that 
the problem was the vagueness of the State law, not the underlying 
principle of the law. The Court went on to say, ``Certainly nothing 
prevents a legislature from defining with substantial specificity what 
constitutes forbidden treatment of United States flags.'' The Court 
further noted that the Federal flag desecration law, which was in 
effect at the time, was acceptable because it prohibited ``only acts 
that physically damage the flag.'' This law remained in effect until 
the Court s 1989 ruling.
  As a member of the Senate Armed Services Committee, I have had the 
opportunity to meet the men and women of our Armed Forces around the 
world. These individuals put their lives on the line regularly, so that 
we may live in peace and safety. And while they are serving us, the 
American public, they do so under the Stars and Stripes. For those who 
are stationed overseas, the flag represents the rights and freedoms 
which they stand prepared to defend, even while on foreign ground. It 
also stands for their home, the Nation which proudly awaits their 
return when their duties are completed. For those who have finished 
their service to their country, the flag is a constant 

[[Page S18386]]
reminder that the ideals for which they fought still live, and that 
their sacrifices were not in vain.
  Mr. President, I do not believe any of us here today wants to limit 
or restrict the right of Americans to speak out in an appropriate 
manner. In fact, numerous Members of this body on both sides of the 
aisle have taken advantage of this right to speak out against 
Government policies, and, undoubtedly, will continue to do so whether 
or not they are Members of the Senate. I simply believe the physical 
mutilation of the flag falls outside the range of speech which should 
be protected. I also believe the citizens of the United States should 
have the opportunity to decide for themselves, whether they also feel 
the flag deserves special protection. That is what this resolution is 
all about. And it is this principle that I ask my colleagues to support 
today.
  Mr. HEFLIN. Mr. President, I rise today in support of the resolution 
to amend the Constitution of the United States to protect the American 
flag. We have recently revised the language in order to address the 
concerns of a few of my colleagues. They have voiced reservations about 
allowing behavior toward the flag to be governed by a multiplicity of 
State laws. The language we have added to the amendment establishes 
that Congress, and not the States, must adopt a uniform standard for 
prohibited conduct as well as for a definition of the ``flag of the 
United States.'' I believe the amendment as it now stands is 
strengthened by these revisions.
  Although much has been said about how this amendment will put a 
muzzle on the first amendment, this is not true. The adoption of this 
amendment will not diminish the first amendment's hallowed place among 
our liberties. Prior to the Supreme Court's decision in Johnson, the 
majority of the States had laws on their books which banned the 
desecration of the American flag. Prior to Johnson, free speech under 
the first amendment flourished, including unpopular opinions and 
political speech. I do not expect this to change once the amendment is 
adopted.
  The opponents have hinged their fight against this amendment on the 
decisions of the Supreme Court in two opinions. First is the case of 
Texas versus Johnson, a 5-to-4 decision, in which the Court held that a 
Texas statute protecting the flag granted it special legal protections 
which offended the Court's concept of free speech. Second is United 
States versus Eichman, in which the Supreme Court, again in a 5-to-4 
decision, struck down a content neutral statute enacted by the Congress 
following the Johnson decision.
  In their dissent in Johnson, the Justices make clear the reasoning 
that I believe is behind many of the supporters of the amendment. Chief 
Justice Rehnquist for himself and Justices O'Connor and White stated:

       For more than 200 years, the American flag has occupied a 
     unique position as the symbol of our Nation, a uniqueness 
     that justifies a governmental prohibition against flag 
     burning in the way respondent Johnson did here.

  It is the flag's uniqueness which we realize makes it more than 
simply a piece of cloth that needs special protection. It is a symbol 
that stands for patriotism, love of country, sacrifice, freedom--values 
that are the essence of what it means to be an American.
  Senator McConnell has introduced a bill, S. 1335, which is designed 
as a statutory protection for the flag. While I appreciate the efforts 
of the Senator from Kentucky, I do not believe that a statute would be 
upheld under the strict scrutiny of the Supreme Court. The Court in 
Eichman was clear that no statute will pass muster if it singles out 
the flag of the United States for protection against contemptuous 
abuse.
  S. 1335 invokes the fighting-words doctrine, and seeks to punish any 
person who destroys a U.S. flag ``with primary purpose and intent to 
incite or produce imminent violence or breach of the peace.'' According 
to legal experts, the Supreme Court in Johnson expressly rejected the 
application of the fighting words or imminent breach of the peace 
rationales offered by the Texas statute. This precedence in hand along 
with other recent decisions of the Court will not allow this statute, 
if passed, to stand.
  It has been suggested that a statute which is facially neutral or 
content neutral could survive the strict scrutiny of the Supreme Court; 
I do not believe that is so. First, for the statute to be truly 
facially neutral it would have to ban any and all forms of destruction 
of the American flag. Second, a facially neutral statute which did not 
permit an exception for disposal of a worn or soiled American flag by 
burning would not be desirable nor acceptable to most Americans.
  Unfortunately, for the statute to be truly content or facially 
neutral, it could not allow for any intentional destruction of the 
flag, including the burning of a worn or soiled flag. Any variation 
from completely neutral language would undermine the entire statute 
and, in all likelihood, would be found to be in violation of the first 
amendment under the Court's strict scrutiny test.
  During the debate surrounding this amendment, a question has been 
raised as to precisely what conduct is prohibited under the amendment. 
It has been claimed that by using the term ``desecration,'' we would 
outlaw almost any use of the flag or its image outside of displaying it 
in a parade or on a flag pole. I think that this is an incorrect and 
unfair interpretation of the conduct we are attempting to prohibit.
  Those who interpret the language as overly broad have suggested that 
this amendment should be limited to outlawing only the burning, 
mutilation, or trampling of the flag. Although these are acts which I 
find despicable, I find acts such as spitting, urinating, wearing the 
flag as underwear to be equally outrageous. Unfortunately, under the 
limitations some have suggested to the amendment, these acts would be 
allowed. I do not think that this is what the American people had in 
mind in their support of this amendment.
  Since the Supreme Court persists in striking down State and Federal 
statutes, regardless of how carefully crafted those statutes are, we 
have no alternative. The only avenue which remains open for protecting 
the American flag from desecration is through the procedure required to 
amend the Constitution of the United States. This procedure is 
difficult, and for very good reasons. The last time an amendment was 
ratified was almost 4 years ago; that was the 27th amendment, which 
took over 200 years to ratify.
  Because of the sanctity of the Constitution, I do not take lightly an 
amendment, but as I stated, we have no alternative. I believe that the 
citizens of this Nation do not want to see the Constitution amended in 
most instances, but I also believe that they have shown through their 
actions that the protection of the flag is an important issue. Those 
actions include the grassroots support of groups such as the Alabama 
Department of Reserves Officers Association of the United States, which 
passed a resolution urging the U.S. Congress to pass this amendment.
  I urge my colleagues to vote in favor of passage of this resolution. 
By voting in support of this resolution we send this matter to the 
States and let the people in each State make the final decision on this 
important matter.
  Mr. SPECTER. Mr. President, I approach any constitutional amendment 
with hesitancy--especially one induring the first amendment.
  At the outset, I believe there is a major difference between an 
amendment seeking to change the text of the first amendment--as is now 
pending in the House of Representatives on freedom of religion--and one 
to overrule a decision of the Supreme Court of the United States.
  For me, a 5 to 4 decision on flag burning does not merit the 
difference due the language of the Bill of Rights. There is nothing in 
the text on freedom of speech requiring protection for flag burners. 
While their speech will still be protected, their acts will be 
prohibited.
  In a somewhat analogous context, I have sponsored and pressed for a 
constitutional amendment to overturn the Supreme Court's decision in 
Buckley versus Valeo, which extended the protection of freedom of 
speech to an individual who spends unlimited amounts of his or her own 
money for a candidacy for public office.
  It is accepted that freedom of speech is not absolute or unlimited. 
Justice Oliver Wendell Holmes articulated the classic statement that a 
person is not free to cry fire in a crowded theater. In a similar vein, 
the Supreme Court has interpreted the first amendment to exclude from 
its protection incitement to 

[[Page S18387]]
imminent lawless action, fighting words, obscenity, libel, and 
invasions of privacy.
  Based on the precedents and general principles of constitutional 
interpretation, it is my judgment that Texas versus Johnson was 
incorrectly decided. The burning of the flag is conduct--not speech. I 
have great respect for robust debate to the extreme. But a speaker may 
express himself or herself with great vigor without insults or 
expressions that would be reasonably interpreted as fighting words.
  Since I studied Chaplinsky versus New Hampshire in law school, I have 
been impressed with the import of the fighting-words doctrine. In 
Chaplinsky, the defendant was criminally charged when his speech 
angered a mob and almost caused a riot. He claimed his speech was 
protected by the first amendment. The Supreme Court unanimously 
rejected his argument, holding:

       . . . the right of free speech is not absolute at all times 
     and under all circumstances. There are certain well-defined 
     and narrowly limited classes of speech, the prevention and 
     punishment of which have never been thought to raise any 
     Constitutional problem. These include the lewd and obscene, 
     the profane, the libelous, and the insulting or `fighting' 
     words--those which by their very utterance inflict injury or 
     tend to incite an immediate breach of the peace. It has been 
     well observed that such utterances are no essential part of 
     any exposition of ideas, and are of such slight social 
     value as a step to truth that any benefit that may be 
     derived from them is clearly outweighed by the social 
     interest in order and morality.

  I take a back seat to no one in protecting constitutional rights and 
civil liberties. For years I have stood against those who have sought 
to strip the Federal courts of their jurisdictional to hear 
constitutional cases involving subjects such as school prayer and 
busing. I have opposed efforts to breach the wall of separation between 
church and state and to weaken the exclusionary rule. Earlier this 
year, I opposed proposals in the counterterrorism bill to expand wire-
tap authority and to deport aliens using secret evidence in violation 
of the basic norm of due process.
  Our law acknowledges and respects expectations. People have real, 
legitimate and reasonable expectations that the flag of the United 
States will be treated with honor and respect.
  Some of the Supreme Court's most liberal Justices, the greatest 
defenders of our civil liberties, have forcefully held flag burning is 
not protected speech. Chief Justice Earl Warren:

     . . . the States and the Federal Government do have the power 
     to protect the flag from acts of desecration and disgrace.

Justice Hugo Black, the ardent exponent of first amendment absolutism:

     [i]t passes my belief that anything in the Federal 
     Constitution bars a State from making the deliberate burning 
     of the American flag an offense.

Justice Abe Fortas articulated:

     . . . the reasons why the States and the Federal Government 
     have the power to protect the flag from acts of desecration 
     committed in public.

  The Bill of Rights has a special sanctity in establishing our 
Nation's values. There is no part of the text of the Bill of Rights 
which I would agree to amend.
  While substantial deference should be given to Supreme Court 
decisions on constitutional interpretation, there are some 
circumstances where amendment is warranted, especially on split 
decisions like the 5 to 4 vote in the flag-burning case.
  Like fighting words in Chaplinsky, libel in Sullivan, incitement of 
imminent lawless action in Brandenburg, and invasion of privacy in 
Cantrell, my judgment is that flag burning is not constitutionally 
protected by the first amendment.
  Mr. COHEN. Mr. President, I have lamented on a number of occasions 
the erosion of civility in our public discourse. This is a trend that 
has had a negative impact on our politics and on the relationship 
between the Government and the citizenry. The heightened level of 
rhetoric, the slash-and-burn tactics, and the accusations of bad faith, 
have made it more difficult for politicians to communicate with each 
other and to communicate with those we represent. It has made it more 
difficult for reasonable people to reach agreement and far too easy for 
unreasonable voices to dominate the debate.
  The breakdown in the tone of our discourse is symptomatic of a wider 
problem which many have described as a deterioration of civil society. 
Our civil society is the collection of public and private institutions, 
and accepted moral principles, that bind us together as a community of 
citizens. Civil society is what makes us a nation of community, rather 
than merely a group with common voting rights.
  There is abundant evidence that our civil society is fraying around 
the edges. People lack faith in the capacity of government to act in 
the interest of the people. There is a growing lack of confidence in 
our public schools--one of the great unifying forces in our country. 
Americans are less engaged in fewer communal activities than we once 
were. We are much more apt to stay at home to rent a video, communicate 
on the faceless Internet, or channel-surf on cable TV, than we are to 
attend a PTA meeting, march in a parade--or even join a bowling league, 
as one Harvard professor's study revealed.
  It is against this background that today we consider the 
constitutional amendment to prohibit desecration of the U.S. flag. The 
argument for protecting the flag is a weighty one: The U.S. flag is a 
unique symbol of our nationhood. When our troops go to battle to fight 
for our Nation, they march under the banner of the flag; each day when 
our children go to school, they pledge allegiance to the flag; when a 
national leader or world dignitary dies, the flag is flown at half 
mast; when one of our athletes wins a gold medal at the Olympic Games, 
the flag of the United States is raised; when a soldier or police 
officer dies, his or her coffin is draped with the flag; when 
immigrants are naturalized, they salute to the flag.
  In this diverse Nation, respect for the flag is a common bond that 
brings us together as a nation. Our common reverence for the flag is 
part of what makes us citizens of a country, not just individuals that 
happen to live in the same geographic area.
  There is also no denying that when the flag is burned, desecrated, 
despoiled, or trampled upon, the potency of the flag as a symbol is 
denigrated. When the flag is burned, whether by Iranian fundamentalists 
during the hostage crisis or by American protestors here at home, we 
are rightly outraged because these acts represent a direct affront to 
our Nation. By tolerating flag desecration, we are condoning actions 
that undermine the fabric of our national life.
  Critics of the flag amendment have reminded us that because flags 
owned by the Government are still protected under current law, this 
amendment will only restrict what individuals can do with flags that 
they own personally. But the flag is not a mere piece of property like 
a car or television, it is more than the fabric and dye and stitching 
that make it up. The design of the American flag and the values it 
represents belong to all of us; in a sense, it is community property. 
``We the people'' maintain part ownership of that flag and should be 
able to control how our property may be treated.
  This is not a very radical principle. Federal law already controls 
what we can or cannot do with our own money. Anyone that ``mutilates, 
cuts, defaces, disfigures, or perforates'' a dollar bill can be fined 
or put in jail for 6 months. Similarly, in O'Brien versus United States 
the Supreme Court upheld the conviction of a protestor that burned his 
draft card on the ground that the Government had a substantial interest 
in protecting a document necessary for the efficient functioning of the 
selective service system. Why is our interest in protecting currency or 
Government documents any stronger than protecting our greatest national 
symbol?
  Opponents of the flag amendment also maintain that it trivializes the 
Bill of Rights by carving out an exception to the first amendment. This 
argument is based on the classic libertarian belief that truth can only 
emerge from complete freedom of expression and that the Government 
cannot be trusted to distinguish between acceptable and unacceptable 
forms of action or speech.
  This first amendment absolutism, however, is contrary to our 
constitutional tradition. The list of types of speech that may be 
regulated or banned by the Government according to our Supreme Court 
precedents is lengthy: libel, obscenity, fighting 

[[Page S18388]]
words, child pornography, deceptive advertising, inciteful speech, 
speech that breaches personal privacy, speech that undermines national 
security, nude dancing, speech by public employees, infringements of 
copyright, and speech on public property, to name a few.
  And consider how narrow the flag amendment's restriction of speech 
really is and how little it limits our ability to protest against the 
Government. Even if the amendment is enacted one could still write or 
say anything about the Government; one could still burn a copy of the 
Constitution or effigies of political leaders; indeed, one could put a 
picture of a flag being burned on the Internet and circulate it to 
millions of people across the world with the push of a button.

  Recall the words the protestors chanted while Gregory Lee Johnson set 
a flag on fire and gave rise to this entire controversy: ``Reagan and 
Mondale, which will it be? Either one means World War III. Ronald 
Reagan, killer of the hour, perfect example of U.S. power. America, the 
red, white, and blue, we spit on you, you stand for plunder, you will 
go under.'' So regardless of whether we have a flag amendment, there 
are a multitude of ways to heap contempt on the government, should one 
choose to do so. The effect of the amendment on free expression would 
be negligible.
  I also want to take issue with the contention that our liberal 
tradition prohibits us from ever making substantive value judgments 
about what is good speech and what is not or that we must always remain 
indifferent or neutral with respect to the ideas and images that 
bombard us over the airwaves or through the media.
  Senator Dole touched on this in a speech he gave earlier this year 
criticizing the violent movies being produced in Hollywood these days. 
It isn't inconsistent with the first amendment to speak out against 
movies that contain dozens of shootings, or gruesome acts of violence 
that are then copied in real life only days after the initial 
screening. It isn't an act of government censorship for politicians to 
criticize music containing lyrics that denigrate women, glorify cop 
killers as role models, and promote racial divisiveness.
  Likewise, it is not government censorship when the people amend the 
Constitution to prohibit one narrow, repulsive form of expression. The 
process of amending the Constitution does not consist of a dictatorial 
tyrant exercising power over enslaved subjects; rather it is the act of 
free people exercising their sovereign power to impose rules upon 
themselves. By enacting this amendment through the process set forth in 
article V of the Constitution, ``We the people'' will be determining 
that the message being expressed by those who burn the flag is not 
worthy of legal protection. The amendment represents a subjective, 
value-laden judgment by the people that our interest in preventing the 
damage that flag desecration inflicts upon our national character 
outweighs the meager contribution that flag burning makes to the 
advancement of knowledge and understanding of ideas. The Supreme Court 
balances interests in this manner in almost every constitutional case 
it decides. Why is it that we have no qualms about deferring to the 
value-judgments made by unelected jurists but we become squeamish when 
making such judgments through our most solemn act of self-government--
amending the Constitution?
  I do not believe this flag amendment sets a bad precedent by carving 
out an exception to the first amendment or that the people will act 
irresponsibly by amending the Constitution in a frequent or cavalier 
fashion. For one thing, the Constitution, in its wisdom, makes that too 
difficult to do. Also, I trust the people. They understand the value of 
liberty. They understand that the only way for truth to emerge is 
through the exchange of ideas. They understand that it is a slippery 
slope from government-controlled censorship to tyanny. I am confident 
that it will be the rare occasion that the people make an exception to 
our general tolerance for free expression by targeting a form of 
expressive activity for special treatment. And I am confident that our 
national character will be improved, not weakened, by the protection of 
our unique symbol of nationhood.
  I agree with Justice Stevens' opinion in Texas versus Johnson. He 
said:

       The value of the flag as a symbol cannot be measured. Even 
     so, I have no doubt that the interest in preserving that 
     value for the future is both significant and legitimate.
       Similarly, in my considered judgment, sanctioning the 
     public desecration of the flag will tarnish its value, both 
     those who cherish the ideas for which it waves and for those 
     who desire to don the robes of martyrdom by burning it. That 
     tarnish is not justified by the trivial burden on free 
     expression occasioned by requiring an available, alternative 
     mode of expression, including words critical of the flag, be 
     employed.

  So I support this resolution to send the flag protection amendment to 
the States for ratification. And I urge my colleagues to support it as 
well.
  Mr. HATCH. Mr. President, I suggest the absence of a quorum.
  I ask unanimous consent that the time be divided equally.
  The PRESIDING OFFICER (Mr. Burns). The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. GLENN. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. GLENN. Mr. President, I yield myself such time as I may consume.
  How much time do we have on this side?
  The PRESIDING OFFICER. Nine minutes.
  Mr. GLENN. Mr. President, I gave a more lengthy speech on this 
subject last Friday. In fact, I talked for about an hour, I guess, 
because I felt strongly about what was going on with this piece of 
legislation. Rather than repeating those remarks of last Friday, I call 
attention to an article that appeared in the Cleveland Plain Dealer 
earlier this year by a columnist, Dick Feagler, a friend of ours who I 
have known for a long time. Dick writes sometimes with a humorous bent 
and a serious twist to it at the same time.
  I read this into the Record in the time I have remaining here because 
I think it pretty much says it all. The title is, ``Flag Should Stay 
Sacred in Our Minds, Not Law.'' His article goes on like this:

       Here they go again. Congressional Republicans, backed by 
     some Democrats, are pushing for a constitutional amendment 
     against burning the flag.
       That old bandwagon has more miles on it than your grandma's 
     Edsel. But there are always plenty of new passengers eager to 
     hitch a ride. In our area, freshman Congressman Steven C. 
     LaTourette has climbed aboard for a short trip toward the 
     stoplight of reason.
       Every four years or so, I have to write a column about this 
     issue and it always makes me feel bad. I am a flag guy. I was 
     raised on John Wayne movies. I feel good on the Fourth of 
     July, and humble on Memorial Day. I am the kid who, at age 
     12, slipped a sternly worded note under the door of a 
     merchant who never took his flag down at sunset. There's a 
     grand old flag flying next to my front door 20 feet from 
     where I'm writing this--
       So every time this comes up, I ask myself, why don't I just 
     go along with it. It would be so much easier. It would make 
     my feel proud and patriotic and as American as a Marysville, 
     Honda. Why not just support changing the Bill of Rights to 
     keep Old Glory safe from the punks and the fanatics?
       Well, because it's dumb, that's why. That's one reason. 
     There's a deeper reason, but I'll deal with the dumbness 
     first. After all, as some of you keep reminding me, I've got 
     enough dumbness in me now without increasing my inventory.
       If we make it against the law to destroy a flag, exactly 
     what kind of flag are we talking about? Are we only talking 
     about the official flag, made, I believe, in Taiwan, that you 
     buy at the post office? How about the flag my father still 
     has with 48 stars on it? Is that still THE flag?
       Suppose I run up a flag on my Singer and leave off a couple 
     of stripes and a handful of stars? If I burn that, will I 
     land in federal court? Who would go to that much trouble, you 
     ask? Pal, you don't know your punks and fanatics.
       How about if I draw a flag on a piece of paper? Can I bum 
     that? Suppose I draw it in black and white but it is still 
     unmistakably a flag? Does it count? How about those little 
     flags on toothpicks you stick in cocktail weenies? If I singe 
     one of those will the FBI come vaulting over the patio hedge 
     to nail me? Are we going to write a brand new amendment to 
     the Constitution the covers the flag on the seat of a biker's 
     britches? Is a flag decal a flag?
       Back in the '60s, I covered a dozen rallies where people 
     burned their draft cards. The frequency of draft-card 
     pyromania was so great that nobody bothered to apply for a 
     replacement. When the hippie at the microphone announced it 
     was arson time, the protesters just lit anything they weren't 
     planning to smoke. If I announce I'm burning a flag, does 
     that count, even if I'm not?
       Who is going to write the constitutional amendment that 
     sorts all this out? It's beyond my poor powers, Yank George 
     M. 

[[Page S18389]]
     Cohan is dead, and even if he was still with us, I doubt he could do 
     better than a C-minus with this assignment.
       I said there was a deeper reason. And there is.
       you can't destroy the flag. Nobody ever has.
       The British tried it twice and gave up forever. The South 
     ripped the flag in two and slipcoverd their half, but we 
     glued it back together with the blood of Gettysburg and 
     Chattanooga. The flag always came through, just like the song 
     about it says.
       The Kaiser couldn't damage it. Hilter couldn't; Mussolini 
     couldn't; Tojo gave it a really good try, but he couldn't. 
     The flag survived the Chosen Reservoir and the Mekong muck.
       And after all of that, we think we need a constitutional 
     amendment to protect it from some crazy-eyed young idiot with 
     a Bic to flick and a mouth full of narcissistic anti-
     government claptrap? We think that one match and a TV camera 
     can do something that 200 years of world-class thugs couldn't 
     do? I hope we have more faith than that.
       Once in one of my lengthening number of yesteryears, it was 
     my job to remove flags from the caskets of dead soldiers and 
     fold them and present them smartly to mothers and widows. 
     Those were always emotional moments.
       But I never thought I was handing over THE flag in exchange 
     for a young man's life. Both I and the woman behind the veil 
     knew that the flag worth dying for is the big one you can't 
     see or touch but you know is there. Right up there under God, 
     like it says in the Pledge of Allegiance.
       The only kind of help that flag needs from Congress is a 
     nation worthy of it.

  That concludes his writing. It was in the Plain Dealer earlier this 
year. I think that pretty much says it all.
  Mr. President, how much time do I have remaining?
  The PRESIDING OFFICER. The Senator has 4 minutes and 8 seconds.
  Mr. GLENN. Mr. President, I could not add a whole lot to that.
  Let me say this. I do not know how we administer this thing if we do 
have it put into effect. I always thought we were supposed to be one 
Nation--one Nation--not a nation that passes amendments that says we 
are going to break this up and let 50 States make up their own minds 
about how they want to treat the flag. I think that is our job here, 
and I think we do it for the Nation right here. I think it is a mistake 
to let all this go out to the States.
  I remember back in 1976 we were celebrating the Bicentennial and we 
had bikinis, flag bikinis advertised in papers. I remember once 
watching a rock and roll concert that year, and it was quite a 
spectacle. It was one to make your blood boil, because the lead 
guitarist, who was bared from the waist up, did not have a shirt or 
anything on, but he is going at it and strumming and banging away on 
this thing. Pretty soon his pants started to slide down, and, lo and 
behold, you guessed it: He had flag shorts on. The audience went wild.
  I find that more objectionable than I do some of the things we are 
talking about, to protect the flag here from burning it. I do not know 
whether body fluids get spilled on the flag in situations like that, 
with the bikinis or whatever. But I find that reprehensible. Is that 
covered under something like this? We are leaving this up to 50 
different States, yet we quote a Pledge of Allegiance that says ``one 
Nation''--one Nation, not a Nation of 50 separate entities, all free to 
make their own rules about how they want to treat the flag--``under 
God, indivisible, with liberty and justice for all.'' We do not say 
just for some and not for others, and we do not say the flag should 
have different treatment in different parts of the country either.
  So I disagree with this approach that says there is such a big 
problem out there we somehow need to do something, passing a 
constitutional amendment to take care of a nonproblem, really. There is 
not a great, huge rash of flag burnings out there that showed 
disrespect for the flag. I was told there were none last year. Then I 
was corrected by some of the veterans who visited me in my office a few 
days ago last week, and they said, no, they could verify there were 
three flag burnings this year.
  We have just under 270 million people in this country. That means one 
offense for every 90 million people. I really do not see that as being 
a tremendous problem for our country. We have a solution here out 
looking for a problem to solve. That does not make much sense to me.
  The flag symbolizes the freedoms we have. It is not the freedoms 
themselves. It is not the freedoms themselves, and those are the things 
that are important. Everyone on both sides of this issue, both sides of 
the aisle love and defend the flag, and if anyone came in here and 
tried to burn a flag right here there would be enough people to attack 
that person, I can guarantee you, that we would take care of it 
ourselves. That is the way most of these things will be taken care of 
back in our individual States.
  Without a doubt, the most important of the values are covered in the 
Bill of Rights. If we had not had that Bill of Rights put together, you 
know some of the States were prepared to not approve the Constitution 
of the United States. In that very first amendment we cover some very, 
very sacred things. We say in that very first amendment, ``Congress 
shall make no law respecting an establishment of religion or 
prohibiting the free exercise thereof; or abridging the freedom of 
speech''--which is deemed to mean other examples--``or of the press; or 
the right of the people peaceably to assemble, and to petition the 
Government for a redress of grievances.'' That is all there is in that 
article. It covers those things, but how important they are. Without 
that, we would not have had a Constitution of the United States.
  My time is up, Mr. President. If anyone wishes to look at my remarks 
in more detail, the Congressional Record of last Friday has it 
complete. My time is up and I yield the floor.
  The PRESIDING OFFICER. Who yields time?
  The Senator from Utah.
  Mr. HATCH. Mr. President, the July 24, 1995, Washington Post 
published a letter from Donald D. Irvin of Fairfax, VA. He wrote:

       It is regrettable that a constitutional amendment to 
     protect the flag is necessary as a way to express the will of 
     the people in response to the misconception of the Supreme 
     Court. But this is hardly the first time that this has had to 
     be done.
       For example, the Dred Scott decision had to be corrected by 
     the 13th and 14th amendments. Neither should have been 
     necessary, but while the Supreme Court is an indispensable 
     branch of government, on occasion the people have to 
     ``explain'' the Constitution to it.
       Although it is not incorporated within the text of the 
     Constitution itself, Americans cite the pledge of allegiance 
     to the flag ``and to the republic for which it stands.'' The 
     republic is based upon the Constitution, which all 
     naturalized citizens and those serving in military and 
     official positions are sworn to defend. While native-born 
     citizens are not otherwise required formally to make such an 
     oath or to pledge allegiance to the flag--and indeed are free 
     to refuse to do either without legal sanction--neither should 
     they be free physically to desecrate the ultimate symbol of 
     the Nation. . . .
       There always will be a few demented souls who may desecrate 
     the flag or violate any law. But arcane legal theories aside, 
     too many people have sacrificed their lives for this country 
     so that the rest of us can live free for us not to honor 
     their memory and our allegiance to the republic by expressing 
     through our highest standard of man-made law that Americans 
     will not tolerate the wanton desecration of the one symbol 
     ``for which it stands.''

  I urge my colleagues to heed the commonsense voices of the American 
people and send this amendment to the States.


                              Common Sense

  Mr. President, I know there are lawyers and nonlawyers on both sides 
of the issue before us. But there has been a fair amount of discussion 
of legal principles involved in the flag protection debate. Frankly, 
lawyers sometimes make matters more complicated than they really are. 
That is one way lawyers drive up their market value. Sometimes a 
healthy dose of common sense goes much farther than lawyer talk in 
illuminating an issue.
  In his trenchant dissent in the Texas versus Johnson case in 1989, 
Justice John Paul Stevens put the same thought this way:

       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 Philippine 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].

  In other words, denying the American people the right to protect 
their flag defies common sense.
  Now, I wish we did not have to do this by constitutional amendment. 
We should not have to do so to ensure that the people can protect their 
flag. 

[[Page S18390]]

  I, like Earl Warren, Abe Fortas, Hugo Black, and Justice Stevens, 
believe the Constitution empowers Congress to protect the flag from 
physical desecration. But the Supreme Court twice has made clear that 
the statutory protection of the flag--because it is the flag--will be 
struck down under its interpretation of the Constitution. We have no 
choice here. Once the Supreme Court, by the narrowest of margins--5 to 
4--orders us otherwise, and slams the door on us--and they did so 
twice--only the people can reverse that decision. And, in this process 
as prescribed under Article V of the Constitution, it is now up to the 
Senate to give the American people the opportunity to do so, if they so 
choose.
  By sending this amendment to the States for ratification, the Senate 
opens the door to no other amendment, or statute, precisely because the 
flag is unique. There is no slippery slope here. The flag protection 
amendment is limited to authorizing the Federal Government to prohibit 
physical desecration of a single object, the American flag. It thus 
would not serve as a precedent for any legislation or constitutional 
amendment on any other subject or mode of conduct, precisely because 
the flag is unique. Moreover, the difficulty in amending the 
Constitution serves as a powerful check on any effort to reach other 
conduct, let alone speech which the Supreme Court has determined is 
protected by the first amendment.
  This amendment does not allow Congress to prohibit any thought or 
point of view, but rather one narrow method of dramatizing that thought 
or viewpoint--by prohibiting one form of conduct; regulating action, 
not speech. No speech and no conduct, other than physical desecration 
of the American flag, can be regulated under legislation that would be 
authorized by the amendment.
  As former Assistant Attorney General Charles J. Cooper testified:

       . . . if prohibiting flag desecration would place us on [a 
     slippery slope of restrictions on constitutional protection 
     of expression for the thought we hate,] we have been on it 
     for a long time. The sole purpose of the Flag Protection 
     Amendment is to restore the constitutional status quo ante 
     Johnson, a time when 48 states, the Congress, and four 
     Justices of the Supreme Court believed that the legislation 
     prohibiting flag desecration was entirely consistent with the 
     First Amendment. And that widespread constitutional judgment 
     was not of recent origin, it stretched back about 100 years 
     in some states. During that long period before Johnson, when 
     flag desecration was universally criminalized, we did not 
     descend on this purported slippery slope into governmental 
     suppression of unpopular speech. The constitutional calm that 
     preceded the Johnson case would not have been interrupted, I 
     submit, if a single vote in the majority has been cast the 
     other way, and flag desecration statutes had been upheld. Nor 
     will it be interrupted, in my view, if the Flag Protection 
     Amendment is passed and ratified.

  That is the testimony of Charles J. Cooper, who, of course, was 
Assistant Attorney General of the United States, and is one of the 
leading constitutional experts here in Washington.
  Mr. President, this is an extremely important issue. This issue will 
determine whether the United States wants to return to the values of 
protecting its national symbol the way it should be.
  Should we pass this amendment today by the requisite 66 votes, there 
being only 99 Members of the Senate at present, this amendment would 
then be submitted to the States. We will leave it up to the people as 
to whether or not they want this amendment. My personal belief is that 
they will ratify this amendment. Three-quarters of the States, if not 
all of the States, will ratify this amendment so fast our heads will be 
spinning. I think the people want this. The polls show they want it. 
Although I do not believe we should do things just because the polls 
show it, in this case the polls show that the American people 
understand that this is a value that they want to maintain and uphold, 
and rightly so. This is a very important value, and, should we pass 
this amendment today, we will submit it to the States. And those issues 
of values, those issues of right and wrong, will once again be debated 
all over this country. It will be a very, very healthy thing in 1995 
and 1996 to have these issues debated 207, years after we thought we 
were establishing values and virtue through the Constitution of the 
United States.
  In all honesty, that debate needs to take place. It will be a much 
more effective debate, I think, than we have held here on the floor of 
the U.S. Senate. I believe it is one that is long overdue, and it could 
lead to a debate on other values in our society--other principles of 
good versus bad. I think it would be beneficial to the country to start 
reexamining some of these things, some of the permissive things, that 
we have allowed to occur in this society that have really denigrated 
our society. Whether to restore legal protection for our national 
symbol, the American flag, is an issue of such great constitutional 
import, one that will help us to start that debate.
  I hope that our colleagues will vote for it today. I can accept 
whatever my colleagues do. But I hope they will vote for it. Should we 
pass it, the great debate on values will start. Should we not pass it, 
come 1997 we will be back with it again, and I think we will pass it at 
that time. But let us hope we can pass it today. I intend to do 
everything I can to see that it is passed.
  Might I ask the Chair how much time remains on both sides?
  The PRESIDING OFFICER. The Senator has 13 minutes remaining and the 
opposite side has no time left.
  Mr. HATCH. I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. HATCH. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. HATCH. Mr. President, the argument that authorizing the 
prohibition of flag desecration violates the first amendment is of 
recent vintage. I have remarked before that the Johnson and Eichman 
decisions owe far more to evolving theories of jurisprudence than to 
the first amendment itself.

  I think the Members of the First Congress who voted for the first 
amendment would be astonished to learn, two centuries later, that they 
had forbidden Congress from prohibiting flag desecration.
  It is even more astonishing to believe that those who enacted the 
14th amendment's due process clause, through which the first 
amendment's free speech guarantee has been applied to the States, 
believed they were forbidding the States from protecting Old Glory.
  Indeed, during the Civil War, Congress awarded the Congressional 
Medal of Honor to Union soldiers who saved the American flag from 
falling into Confederate hands.
  That Members of Congress who awarded the Medal of Honor for such 
heroics would also strip States of the right to protect the flag from 
those who would physically desecrate it seems to me to be far-fetched. 
As I have mentioned earlier, as recently as 1969, even Chief Justice 
Earl Warren, whose very name is an eponym for judicial activism among 
conservatives, wrote: ``I believe that the States and the Federal 
Government do have the power to protect the flag from acts of 
desecration and disgrace * * *'' (Street v. New York, 394 U.S. 576, 605 
(1969) (Warren, C.J., dissenting)). Liberal Justice Abe Fortas agreed. 
And first amendment absolutist Justice Hugo Black was incredulous at 
the thought that the Constitution barred laws protecting the flag: ``It 
passes my belief that anything in the Federal Constitution bars a State 
from making the deliberate burning of the American flag an offense.'' 
(394 U.S. at 610).
  That five Members of the Supreme Court have now said otherwise does 
not make their constitutional interpretation in this case wise or 
persuasive, any more than its decisions in the last century that Dred 
Scott should be returned to slavery, or that separate-but-equal 
treatment of the races passes muster under the equal protection clause 
made sense.
  The pending amendment overturns the Johnson and Eichman decisions and 
clearly establishes in the text of the Constitution the power for 
Congress to protect the flag from physical desecration that those two 
decisions erroneously took away. It only addresses the Court's 
misguided, recent flag jurisprudence. It does nothing else; it does not 
disturb any other theories the Court has used to construe the 
Constitution. 

[[Page S18391]]



The American flag deserves legal protection regardless of the number of 
                   flag desecrations in recent years

  The Clinton administration testified that, in light of what it refers 
to as ``* * * only a few isolated instances [of flag burning], the flag 
is amply protected by its unique stature as an embodiment of national 
unity and ideals.'' [Testimony of Mr. Dellinger, June 6, 1995 at p. 1] 
I find that comment simply wrong.
  First, aside from the number of flag desecrations, our very refusal 
to take action to protect the American flag clearly devalues it. Our 
acquiescence in the Supreme Court's decisions reduces its symbolic 
value. As a practical matter, the effect, however unintended, of our 
acquiescence equates the flag with a rag, at least as a matter of law, 
no matter what we feel in our hearts. Anyone in this country can buy a 
rag and the American flag and burn them both to dramatize a viewpoint. 
The law currently treats the two acts as the same. How one can say that 
this legal state of affairs does not devalue the flag is beyond me.
  This concern is shared by others. Justice John Paul Stevens said in 
his Johnson dissent:

       . . . in my considered judgment, 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].

  Prof. Richard Parker of Harvard Law School testified after Mr. 
Dellinger, and in my view, effectively rebutted his argument.

       If it is permissible not just to heap verbal contempt on 
     the flag, but to burn it, rip it and smear it with 
     excrement--if such behavior is not only permitted in 
     practice, but protected in law by the Supreme Court--then the 
     flag is already decaying as the symbol of our aspiration to 
     the unity underlying our freedom. The flag we fly in response 
     is no longer the same thing. We are told . . . that someone 
     can desecrate ``a'' flag but not ``the'' flag. To that, I 
     simply say: Untrue. This is precisely the way that general 
     symbols like general values are trashed, particular step by 
     particular step. This is the way, imperceptibly, that 
     commitments and ideals are lost.

  Second, as a simple matter of law and reality, the flag is not 
protected from those who would burn, deface, trample, defile, or 
otherwise physically desecrate it.
  Third, whether the 45-plus flags whose publicly reported desecrations 
between 1990 and 1994 of which we are currently aware, and the ones 
which were desecrated so far this year, represent too small a problem 
does not turn on the sheer number of these desecrations alone. When a 
flag desecration is reported in local print, radio, and television 
media, potentially millions, and if reported in the national media, 
tens upon tens of millions of people, see or read or learn of them. How 
do my colleagues think, Rose Lee, for example, feels when she sees a 
flag desecration in California reported in the media? The impact is far 
greater than the number of flag desecrations.
  Physical desecration of the American flag has occurred every year 
since the Johnson decision. I do not believe there is some threshold of 
flag desecrations during a specified time period necessary before 
triggering Congressional action. Certainly, critics of the amendment 
cite no such threshold. If it is right to empower the American people 
to protect the American flag, it is right regardless of the number of 
such desecrations in any 1 year. And no one can predict the number of 
such desecrations which may be attempted or performed in the future.
  If murder rarely occurred, would there not be a need for statutes 
punishing it? Espionage prosecutions are not everyday occurrences. 
Treason prosecutions are even more infrequent, but treason is defined 
in the Constitution itself and no one suggests we repeal that provision 
or treason statutes.
  Our distinguished colleague from Alabama, Senator Heflin, also 
responds to the criticism that there are too few flag desecrations to 
justify an amendment by noting: ``in my judgment, this is the time, in 
a cool, deliberate, calm manner, and in an atmosphere that is not 
emotionally charged to evaluate values. I think that is something that 
makes it appropriate to do it now. I [believe] that there have to be in 
this Nation some things that are sacred.'' I think my friend from 
Alabama is absolutely right.
  Mr. President, I believe our time is about all up, and I would be 
happy to yield it back unless somebody wants to speak.
  The PRESIDING OFFICER. I might inform the Senator he has 2 minutes 
and 30 seconds remaining.
  Mr. HATCH. I will be happy to yield it back. I understand the other 
side's time is consumed.

                          ____________________