[Congressional Record Volume 143, Number 54 (Wednesday, April 30, 1997)]
[Extensions of Remarks]
[Pages E801-E802]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




          DRIVE TO RATIFY FLAG PROTECTION AMENDMENT CONTINUES

                                 ______
                                 

                        HON. GERALD B.H. SOLOMON

                              of new york

                    in the house of representatives

                       Wednesday, April 30, 1997

  Mr. SOLOMON.  Mr. Speaker, earlier today, I testified before the 
House Judiciary Subcommittee on the Constitution in support of House 
Joint Resolution 54, the flag protection amendment. As of today, this 
joint resolution has 274 cosponsors, two dozen more than we had in the 
104th Congress when we overwhelmingly approved similar proposal by a 
vote of 312 to 120. It is my fervent hope and expectation that this 
amendment will come to the House floor for a vote before Flag Day, June 
14. I urge any supporters who have not yet cosponsored the joint 
resolution, to do so now, and I respectfully request that my remarks 
from the subcommittee hearing be printed here.

       Thank you very much Chairman Canady and panel members for 
     inviting me here today to testify on the Flag Protection 
     Amendment.
       I also want to commend Mr. Canady and the over 270 other 
     cosponsors of this joint resolution. And let me add this: 
     with such good people on my side, I cannot wait to represent 
     this amendment, first on the House floor, and then to the 
     states for ratification.
       But first, with your indulgence Mr. Chairman, I would like 
     to tell you why I think this amendment is so important.
       It is important for many reasons. First of all, the 
     overwhelming majority of Americans support this amendment.
       In Congress, it has won the support of members from both 
     sides of the aisle, in both chambers. The presence of my good 
     friend Bill Lipinski next to me today is proof of that.
       And finally, and this may be even more important, I am 
     joined by constitutional scholars in saying this amendment 
     actually strengthens our First Amendment freedoms.
       I emphasize that, Mr. Chairman because some Americans have 
     raised questions about our fundamental freedoms of speech and 
     expression. I have the same concerns they do, and they 
     deserve some straight answers.
       Now, I am not going to spend too much time paying tribute 
     to the flag. I am sure it's safe to say that respect for the 
     flag is something everyone in this room shares.
       Americans have always felt that way about their flag, and 
     that's why there is so much precedent for what we're doing 
     here today.
       Some critics might say that the Supreme Court has spoken on 
     this matter, and that's that! Well, not quite.
       In the history of the Supreme Court, few members guarded 
     the First Amendment so jealously as Justice Hugo Black and 
     Chief Justice Earl Warren. Both stated forcefully that there 
     is no First Amendment problem with banning flag desecration.
       And they also believed that nothing in the Constitution 
     prevented individual states from enacting laws to prohibit 
     the physical desecration of the American flag!
       What we seek today is not an amendment to ban flag 
     desecration but an amendment to allow Congress to make that 
     decision.
       Some of you may point out that this amendment differs from 
     the one I offered in the last Congress. You are right. In the 
     104th Congress, the House overwhelmingly voted 312 to 120 to 
     allow Congress and the States to prohibit the physical 
     desecration of the American flag.
       Unfortunately, that amendment fell three votes short in the 
     Senate. While I support enabling both Congress and the States 
     to prohibit flag desecration, a few members expressed their 
     concern that giving the States this power could lead to 50 
     very diverse laws on the topic. While I do not have those 
     concerns myself, I worked with this amendment's cosponsors 
     and the members of the Citizens Flag Alliance to rewrite the 
     Amendment to address those concerns and only empower Congress 
     to prohibit flag desecration.
       It is entirely appropriate to draft the amendment in this 
     way. It is after all, the American flag--our nation's flag--
     that we are discussing. The federal government should be the 
     one to make laws protecting it. I know this will relieve many 
     of those who raised this concern in the past.
       And physical desecration does not only include flag 
     burning, it also includes the outrageous acts of people 
     defecating on the flag--that's right, actually treating our 
     flag like it was nothing more than toilet paper. You will 
     hear a witness testify more about that later.
       One vote--I repeat, one vote--in a 5 to 4 decision turned 
     the Court's back on the tradition of Justice Black and Chief 
     Justice Warren, and all of a sudden flag-burning became 
     ``expression'' protected by the First Amendment. But the very 
     analysis of that slim majority did not support that 
     conclusion.
       The Court said that the government cannot prohibit the 
     expression of any idea just because society finds that idea 
     offensive or disagreeable.
       But the Texas state law overturned in that 1989 decision 
     did not suppress any idea at all.
       Look at it this way. What idea does burning a flag 
     communicate? What idea does defecating on the flag 
     communicate? What thought does it express? Obviously, none!
       Under that Texas statute, and others like it, no one was 
     required to worship the flag or was prevented from speaking 
     about the flag, or even prevented from insulting the flag 
     verbally. It only said they could not physically desecrate 
     the flag.

[[Page E802]]

       After all, everyone understands that no ``right'' is 
     absolute. We cannot yell ``fire'' in a crowded theater. We 
     cannot holler obscenities on the corner of a residential 
     neighborhood and not get arrested for disturbing the peace.
       And if I don't like someone, I can say so, but I cannot 
     express my dislike by punching him in the nose. When my 
     dislike goes from thoughts, or words, to action, well, then I 
     have crossed the line the Supreme Court itself has drawn in 
     the sand over and over again.
       The finest constitutional minds in the country--including 
     Judge Robert Bork and legal scholars Stephen B. Presser and 
     Richard D. Parker--tell us that this is not a First Amendment 
     issue.
       They will tell you that for any society to survive, there 
     has to be some common basic rules of civility and respect 
     which we all can live with. Every viable society has to be 
     able to say: ``This you shall not do. We, as a community, 
     find this conduct highly offensive!''
       The only other alternative is chaos and fragmentation. This 
     is true even in a society as pluralistic and diverse as ours. 
     In such a society, it is all the more important to protect 
     the most important symbol of unity we have. And what's more 
     important than Old Glory? Our flag and all it represents make 
     us Americans.
       You know, not long ago, we celebrated the 50th anniversary 
     of Iwo Jima, and we all know that the Marines did not run a 
     copy of the Constitution up a pole on Mount Suribachi. When 
     some tragedy occurs, we do not fly the Presidential Seal at 
     half-mast from our federal buildings. We do not salute the 
     Liberty Bell.
       And so it's been across the world. Whether it's been 
     Manila, or Paris, or Kuwait City, whenever American troops 
     have liberated cities from oppressors, they have been greeted 
     by grateful people waving--not the Constitution, not the 
     Presidential Seal, not Big Macs or blue jeans--but the 
     American flag.
       And that love of the flag certainly is not dead in our own 
     country. Eighty percent of the American people want this 
     amendment. Over 100 national civic, fraternal and veterans 
     organizations have been working since 1989 for its 
     ratification.
       Furthermore, forty-nine (49) states have asked Congress to 
     pass this amendment. That's 11 more than the 38 needed to 
     ratify it! When was the last time any amendment (regardless 
     of whether or not it was ratified) garnered such broad-based 
     support.
        Mr. Chairman, I am pleased that consensus and reasoned 
     arguments are going to enact this amendment, as opposed to 
     the passions and politics of the moment. The grass-roots 
     movement which has gathered steam over the past eight years 
     is a testament to this.
       For those who worry how ratifying this amendment would lead 
     our nation down a slippery slope, I can assure you that the 
     very difficult process which our Founding Fathers created to 
     amend the Constitution will prevent a floodgate of amendments 
     from happening, just as it has blocked frivolous amendments 
     for more than 200 years.
       And so, to sum up--We are not banning desecration of the 
     flag. We're only giving Congress the right to do so, a right 
     that it really always had up until the past eight years.
       Not only does our amendment enhance rather than threaten 
     the First Amendment, but burning the flag is not speech or 
     expression, it is a hateful tantrum. And defecating on a flag 
     is even worse.
       Finally, the American people--and the constituents of every 
     member in this room--want us to pass this amendment. So let's 
     do it.

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