[Congressional Record Volume 144, Number 6 (Wednesday, February 4, 1998)]
[Senate]
[Pages S394-S400]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. HATCH (for himself, Mr. Cleland, Mr. Hagel, Mr. Stevens, 
        Mr. Ford, Mr. Lott, Mr. Coverdell, Mr. Kempthorne, Mr. Allard, 
        Mr. Ashcroft, Mr. Bond, Mr. Brownback, Mr. Burns, Mr. Campbell, 
        Mr. Coats, Mr. Cochran, Ms. Collins, Mr. Craig, Mr. D'Amato, 
        Mr. DeWine, Mr. Domenici, Mr. Enzi, Mr. Faircloth, Mr. Frist, 
        Mr. Gramm, Mr. Grams, Mr. Grassley, Mr. Gregg, Mr. Helms, Mr. 
        Hutchinson, Mrs. Hutchison, Mr. Inhofe, Mr. Kyl, Mr. Lugar, Mr. 
        Mack, Mr. McCain, Mr. Murkowski, Mr. Roberts, Mr. Roth, Mr. 
        Santorum, Mr. Sessions, Mr. Shelby, Mr. Smith of New Hampshire, 
        Mr. Smith of Oregon, Ms. Snowe, Mr. Thompson, Mr. Thurmond, Mr. 
        Warner, Mr. Baucus, Mr. Breaux, Mrs. Feinstein, Mr. Hollings, 
        Mr. Reid, Mr. Rockefeller, and Mr. Johnson):
  S.J. Res. 40. A joint resolution proposing an amendment to the 
Constitution of the United States authorizing Congress to prohibit the 
physical desecration of the flag of the United States; to the Committee 
on the Judiciary.


               flag desecration constitutional amendment

  Mr. HATCH. Mr. President, it is with great honor and reverence that I 
rise today with my friend and colleague, Senator Cleland, to introduce 
a Constitutional Amendment to permit Congress to enact legislation 
prohibiting the desecration of the American flag.
  Mr. President, symbols are important. They remind us of who, and 
what, we are. Those of us who are married, for example, wear wedding 
rings to symbolize the commitment we have made to share our lives with 
another person. For those of us who are Christians, the cross serves to 
remind us of the importance of faith and sacrifice.

[[Page S395]]

Similarly, Jews unite behind the Star of David, which tells them they 
are of an ancient faith and lineage. These representations are not 
trivial. They help bind us together and give us a common identity.
  In similar fashion, the American flag serves as a symbol of our great 
nation. As a religious symbol serves to remind its adherents of their 
common identity, the flag represents in a way nothing else can, the 
common bond shared by an otherwise diverse people. Whatever our 
differences of party, race, religion, or socio-economic status, the 
flag reminds us that we are very much one people, united in a shared 
destiny, bonded in a common faith in our nation.
  Nearly a decade ago, Supreme Court Justice John Paul Stevens reminded 
us of the significance of our unique emblem when he wrote:

       A country's flag is a symbol of more than nationhood and 
     national unity. It also signifies the ideas that characterize 
     the society that has chosen that emblem as well as the 
     special history that has animated the growth and power of 
     those ideas. . . . So it is with the American flag. It is 
     more than a proud symbol of the courage, the determination, 
     and the gifts of a nation that transformed 13 fledgling 
     colonies into a world power. It is a symbol of freedom, of 
     equal opportunity, of religious tolerance, and of goodwill 
     for other peoples who share our aspirations.

  Justice Stevens' words ring true. After all, for over 200 years, this 
proud banner has symbolized hope, opportunity, justice and, most of 
all, freedom, not just to the people of this nation, but to people all 
over the world.
  Perhaps no three events symbolize the importance of this national 
symbol better than the great battle to our North that gave rise to our 
national anthem, the ``Star Spangled Banner''; the raising of the 
American flag on the Island of Iwo Jima by United States Marines during 
World War II; and the planting of the flag upon the moon.
  When Francis Scott Key, imprisoned on a ship in Baltimore Harbor, 
looked to the besieged Fort McHenry he penned the immortal question ``O 
say does that star spangled banner yet waive, o'er the land of the free 
and the home of the brave?'' That dark night, he witnessed the 
bombardment of the fort, and knew that if it fell, the tide of the war 
could turn. In the early morning light, Key gazed out across the water 
to see if the fledgling nation had survived. And one glorious symbol 
gave him his answer.
  In the second verse of our great national anthem, Key described what 
he saw: ``On the shore dimly seen through the mists of the deep, where 
the foe's haughty host in dread silence reposes--What is that which the 
breeze o'er the towering steep--as it fitfully blows, half conceals, 
half discloses? Now it catches the gleam of the morning's first beam in 
full glory reflected now shines on the stream. `Tis the Star Spangled 
Banner, Oh long may it wave o'er the land of the free and the home of 
the brave.'' When Francis Scott Key looked out that morning, oh how he 
must have felt to have seen that yes, that banner did wave and that the 
hope of the nation was preserved.
  At a similarly cricial point in this nation's history, Americans 
rallied around a photograph of United States Marines raising the flag 
on the island of Iwo Jima during World War II. That heroic image, 
immortalized in the Marine Corps Memorial next to Arlington National 
Cemetery, instantly came to symbolize the determination and courage of 
all the brave Americans fighting in that great struggle for the very 
survival of America as a free nation. Seeing the American flag raised 
on an island so close to the enemy's shore, so far from home, gave the 
country the will it needed to fight on.
  Fifty years later, the planting of the flag on that small pacific 
island remains one of our nation's most powerful images, reminding us 
that throughout our history, through the generations, from the Battle 
of Bunker Hill, to the Civil War, to Operation Desert Storm, on every 
continent and ocean, in every corner of the world, Americans have 
fought, and in many cases given their lives, fighting under this flag 
for the nation and the ideals it represents.
  And who can forget the fact that the greatest honor bestowed upon 
those who have died in battle or otherwise given great service to this 
nation, is to have the flag draped over their caskets. It is a reminder 
to the living that they owe their freedoms to those who have fallen and 
a promise to the dead that their country has not forgotten them.
  It is not only in war that this national symbol has served to unite 
us. Few who saw it live on television will forget the moment when Neal 
Armstrong and Buzz Aldrin planted the American flag on the moon. This 
moment, perhaps more than any other, demonstrated that we are a nation 
of restless explorers, of dreamers, always ready to reach for the 
stars. The flag planted upon that alien soil was a testimony to the 
hard work, the ingenuity, and the pioneer spirit of the American 
people.
  I am therefore proud to rise today to introduce a constitutional 
amendment that would restore to Congress the right to protect our 
unique national symbol, the American flag, from acts of physical 
desecration.
  Restoring legal protection to the American flag is not, nor should it 
be, a partisan issue. Fifty four Senators, both Republicans and 
Democrats, have joined with Senator Cleland and myself as original 
cosponsors of this amendment.
  Now, some have argued that this Amendment actually violates American 
principles. They contend that preventing the physical desecration of 
the flag actually tramples on the sacred right of Americans to speak 
freely. I disagree. Restoring legal protection to the American flag 
would not infringe on free speech. If burning the flag were the only 
means of expressing dissatisfaction with the nation's policies, then I, 
too, might oppose this amendment. But we live in a free and open 
society. Those who wish to express their political opinions may do so 
in the media, in newspaper editorials, in peaceful demonstrations, and 
through their power to vote.
  Certainly, smashing in the doors of the State Department may be a way 
of expressing one's dissatisfaction with the nation's foreign policy 
objectives. And one may even consider such behavior speech. Laws, 
however, can be enacted preventing such actions--in large part because 
there are peaceful alternatives that can be equally powerful. After 
all, right here in the United States Senate, we prohibit speeches or 
demonstrations of any kind, even the silent display of signs or 
banners, in the public galleries. As a society, we can and do place 
limitations on both speech and conduct.
  Moreover, contrary to the claims of some, restoring legal protection 
to the American flag would not overturn or otherwise constrict the 
First Amendment. Rather, it would merely overturn an interpretation of 
that amendment by the Supreme Court, in which the Court, by the 
narrowest of margins, held that flag burning was a form of protected 
free speech. I believe the Court's majority had it wrong--that its 
decision flew in the face of over 200 years of American history: 
burning the flag is conduct--conduct for which there exists numerous 
peaceful alternatives--and may be prohibited. The amendment Senator 
Cleland and I propose would correct the Supreme Court's error and 
restore to Congress and the States the power they historically had to 
protect the American flag from acts of physical desecration.
  Nor would restoring legal protection to the American flag place us on 
a slippery slope to limit other freedoms. The flag is unique as our 
national symbol. There is no other symbol, no other object, which 
represents our nation as does the flag. Accordingly, there is no basis 
for concern that the protection we seek for the American flag could be 
extended to cover any other object or form of political expression.
  For many years, our flag was protected, by federal laws and laws in 
48 states, from acts of physical desecration. No one can seriously 
argue that freedom of speech or freedom of expression was diminished or 
curtailed during that period. Restoring the protection of law to our 
flag would not prevent the expression, in numerous ways safeguarded 
under the Constitution, of a single idea or thought.
  I would note that the effort to restore legal protection to our 
national symbol is a movement of the American people. It has been 
initiated by grassroot Americans; numerous civic, veterans and 
patriotic organizations, led by the American Legion, joined together in 
the Citizens Flag Alliance, working to build support across this

[[Page S396]]

nation for a constitutional amendment to restore the historical 
protection of our flag. And forty-six states have passed resolutions 
urging Congress to send a flag protection amendment to the states for 
ratification.
  That is no small support. I believe we need to support them.
  I therefore think that the will of the people should not be 
frustrated by this body. This resolution should be adopted, and the 
flag amendment sent to the states for their approval.
  Mr. President, I ask unanimous consent that the text of the proposed 
amendment be included in the Record.
  There being no objection, the joint resolution was ordered to be 
printed in the Record, as follows:

                              S.J. Res. 40

       Resolved by the Senate and House of Representatives of the 
     United States of America in Congress assembled, That the 
     following article is proposed as an amendment to the 
     Constitution of the United States, which shall be valid to 
     all intents and purposes as part of the Constitution when 
     ratified by the legislatures of three-fourths of the several 
     States within 7 years after the date of its submission for 
     ratification:

                              ``Article--

       ``The Congress shall have power to prohibit the physical 
     desecration of the flag of the United States.''.

  Mr. HATCH. Mr. President, I am very honored to be a cosponsor with my 
dear friend from Georgia, Senator Cleland. I appreciate the efforts he 
has put forth in this battle, and having served in the military as he 
has done with such distinction and with such courage and heroism I 
think we ought to all listen to him and I for one will certainly do 
that. I am proud and privileged to be able to work with him. So I yield 
the floor to my colleague.
  The PRESIDING OFFICER. The Senator from Georgia is recognized.
  Mr. CLELAND. Mr. President, I thank my friend and colleague, the 
distinguished Chairman of the Judiciary Committee, Senator Hatch. I 
applaud his stalwart leadership on this important matter.
  Mr. President, I am a strong supporter of a Constitutional amendment 
to prohibit the physical desecration of the United States flag.
  Like many Americans, I was troubled when the Supreme Court ruled in 
two cases, Texas v. Johnson, and United States v. Eichman, that 
statutes protecting the United States flag were unconstitutional 
violations of the First Amendment right to free speech. I respected the 
wisdom of the Justices of the Supreme Court, yet I was saddened that we 
no longer were able to rely upon statutory authority to protect the 
flag.
  I was especially saddened in light of the views expressed by such 
distinguished past and present Supreme Court Justices as Justices 
Harlan, Warren, Fortas, Black, White, Rehnquist, Blackmun, Stevens, and 
O'Connor. These Justices have each supported the view that nothing in 
the Constitution prohibits the states or the federal government from 
protecting the flag. Nonetheless, the current Supreme Court view 
stands. That is what brings us here today.
  The flag is not a mere symbol. It is not just a symbol of America. It 
IS America. It is what we stand for. It is what we believe in. It is 
sacred.
  I do not have to tell the Senate what the flag means.
  Just ask the soldier who proudly marches behind the flag what it 
means to salute the flag of the United States.
  Ask the newly sworn citizen what it means to claim the flag of the 
United States for his or her own.
  Ask the grieving widow or mother of a slain soldier who is presented 
with the flag that draped the soldier's casket.
  Being from the South and being a history major in college, it was 
only natural that I become a student of the Civil War. For those who do 
not believe in the flag, I would point to the literally hundreds of 
citations given to men in battle during the Civil War for acts of valor 
associated with the flag.
  Soldiers were routinely awarded the Medal of Honor, America's highest 
military award, for defending the United States flag and carrying it 
forward into battle. Many of these awards were awarded posthumously. 
These brave men knew the meaning of the flag.
  The flag unites Americans as no symbol can. Only God and the United 
States Constitution itself stand above the flag.
  Everywhere history has been made in this country, the flag has been 
present.
  It was the United States flag that inspired our National Anthem.
  It was an American flag that was raised when Jesse Owens stunned Nazi 
Germany.
  It was a United States flag that was hoisted in Iwo Jima.
  It was the United States flag that was planted on the Moon.
  Those who would desecrate the flag would desecrate America. I cannot 
stand by that. Therefore, I stand for a Constitutional amendment.
  This amendment is simple. It vests only Congress with the authority 
to protect the flag through statute. We need not fear that the states 
will create a hodge-podge of flag protection statutes. Instead, 
Congress can create one uniform statute for the entire nation.
  According to opinion surveys, 3 out of every 4 Americans support 
protecting the flag from desecration. Forty-nine states have enacted 
resolutions to calling on Congress to pass a flag protection amendment. 
I believe we ought to let the American people decide this important 
matter. Therefore, I lend my support to efforts to send this initiative 
to the American people for ratification.
  Unfortunately, it has been the Senate that has blocked these efforts. 
The House has twice passed resolutions that would begin the formal 
process of amending the Constitution to protect the flag. The Senate 
has failed to respond to the overwhelming majority view of the American 
people.
  I believe now is an especially important time to reinforce our 
support for the American flag. The United States is unquestionably the 
world's only remaining superpower. Our leadership around the world is 
unrivaled. The principles of democracy and freedom that guided our 
forefathers in establishing our great nation are seen as shining 
examples for the world.
  Everywhere that communism has failed, where dictators have been 
overthrown, where tyranny has been rooted out, people look to America. 
And it is an American flag that leads our ambassadors, our troops, our 
citizens, and our hope as we lend our support and leadership to those 
nations struggling to overcome their past.
  People who seek asylum from religious, political, and ethnic 
persecution look for an American flag flying over our embassies abroad 
to guide them to the place where their human rights will be respected 
and protected.
  Let us now send a strong signal to the world that we truly cherish 
this great symbol. Let us now use this opportunity to show the world 
that we reaffirm our commitment to the ideals the flag stands for.
  Indeed, as Supreme Court Justice Stevens said in his dissent from 
Texas v. Johnson:

       The freedom and ideals of liberty, equality, and tolerance 
     that the flag symbolizes and embodies have motivated our 
     nation's leaders, soldiers, and activists to pledge their 
     lives, liberty, and their honor in defense of their country. 
     Because our history has demonstrated that these values and 
     ideals are worth fighting for, the flag which uniquely 
     symbolizes their power is itself worthy of protection from 
     physical desecration.

  These are powerful, wise words. Words we should all heed.
  Let us now stand in support of the Flag of the United States of 
America. I urge my colleagues to join with us in support of this 
resolution.
  Mr. STEVENS. Mr. President, this joint resolution, the Flag 
Desecration Constitutional Amendment, proposes an Amendment to the 
Constitution that would empower Congress to prohibit the physical 
desecration of our Flag. I am proud to join Senator Hatch and my other 
colleagues as a sponsor.
  Two years ago the Senate came close to passing this amendment. At 
that time, ninety percent of Alaskans who contacted me supported this 
effort. I am confident their stance has not changed. Alaskans support 
our flag and the freedom it represents. Alaskans strongly support the 
protection of this symbol of freedom.
  Our flag has a special place in my heart and the hearts of all 
Americans. As those who have served overseas know, the flag was our 
reminder of America and our freedom. Freedom much greater than any 
country ever offers. Our missions oveaseas were to protect that freedom 
and the flag

[[Page S397]]

which symbolizes it. Too many have devoted their lives for our country 
for us not to protect its most sacred symbol.
  Forty-eight states had laws preventing flag desecration before the 
Supreme Court struck them down. The flag is a direct symbol of our 
country. Fifty stars for fifty states. I remember the day the forty-
ninth star was pinned on the flag. Having played a role in the Alaska 
statehood movement, I can say it was one of the proudest moments in my 
life. I support every effort to preserve the sanctity of America's 
flag.
  The Supreme Court has given us a choice. We can accept that the First 
Amendment allows the desecration of America's flag. Or we can change 
the law to prevent it. The power to amend the Constitution demands a 
cautious respect. It is a considerable power--one that has helped chart 
the course of our history. We should not jump headlong into amendments. 
But we should not be afraid to act on our beliefs, either. The people 
of Alaska are strong in their belief that our flag should not be 
desecrated, and we support this amendment.
  Mr. FORD. Mr. President, today I add my name as an original cosponsor 
of a constitutional amendment to prohibit the physical desecration of 
the American flag.
  I know that there are many who believe that the desecration of our 
country's flag is the ultimate expression of their political freedoms, 
but I do not believe all speech is free. Our country pays a price when 
we see demonstrations which tear down our standard bearer of national 
integrity. Our flag represents the values upon which this nation was 
founded and our charter of government established in Philadelphia in 
1787. When we no longer value the flag as a symbol of national unity 
and allegiance to this compact, our Republic is weakened.
  Burning our country's flag is not political free speech, it is 
political garbage. As a society, we have placed parameters on free 
speech. A person who shouts fire in a crowded theater does not enjoy 
the protection of freedom of speech. A person whose words incite 
violence does not enjoy the protection of the First Amendment. I firmly 
believe that no legitimate act of political protest should be 
suppressed. Nor should we ever discourage debate and discussion about 
the Federal government. However, to allow the physical desecration of 
our national symbol is to allow the ties that bind us as a country, the 
ties that bind one generation to the next in their love and respect for 
this country, to be weakened. When we no longer value our flag, we lose 
value for our country, our government, and each other.
  Over two hundred years after the ratification of our nation's Bill of 
Rights, the United States Supreme Court erroneously ruled that the 
desecration of our national symbol is protected speech in the case of 
Texas vs. Johnson. In response to this decision, the United States 
Senate overwhelmingly passed the Flag Protection Act, which was also 
declared unconstitutional by the high court. The Supreme Court's action 
has made it clear that a constitutional amendment is necessary for 
enactment of any binding protection of the flag. Up to this point, 
neither House of Congress has been able to garner the two-thirds super 
majority necessary for passage of a constitutional amendment. But 
because grassroots support for this amendment continues to grow, I have 
joined with members on both sides of the aisle to again try passing 
this amendment. I am hopeful that this time we will get the necessary 
votes.
  Let me close by recalling the words of a Union Soldier in his last 
letter to his wife dated July 14, 1861. He said, ``my courage does not 
halt or falter. I know how American civilization now bears upon the 
triumph of the government and how great a debt we owe to those who went 
before us through the blood and suffering of the Revolution, and I am 
willing, perfectly willing, to lay down all my joys in this life to 
help maintain this government and pay that debt.''
  Today, our task here in the Senate seems trivial in comparison. But 
if we want the flag that hangs in school rooms, over courthouses, in 
sports stadiums and off front porches all across America, to continue 
symbolizing that same commitment to country, then it is a challenge we 
cannot fail to meet.
  Mr. President, I urge my colleagues to join me in supporting this 
important legislation.
  Mr. LOTT. Mr. President, today, we begin the process of restoration. 
Restoration and renewal. Today, we look to our past, our history, as 
prologue of our future. We examine the events of recent years in the 
context of history in an effort to restore and renew our faith in this 
place we call America. They lynchpin of this process will be our 
restoration of what our flag--our American flag, the flag of these 
United States, the flag of what our founders referred to as ``We, the 
People''--means to us as a people, as citizens, as people united in the 
common cause of Freedom.
  Our flag is no mere piece of cloth, even a brightly-colored piece of 
cloth--it is the symbol of our nation, and it stands for our ideals, 
our freedom, our hopes and dreams and, yes, our faith in our nation and 
in one another.
  Let's consider this common cause, freedom. Some may say that we need 
no symbols to embody this cause. I might agree with those people if I 
had no knowledge of our history or how the American flag is viewed by 
people around the world.
  For many, in this country and around the world, the American flag is 
the symbol of the freedom that they long for, that they strive to 
achieve and to preserve and that they honor. America has been called a 
``melting pot'', where people of many cultures and nationalities come 
together to live, work and raise their families. Immigrants all, save 
those native Americans whose roots in this land we must also continue 
to honor and preserve, we recognize our fortune derived by living in a 
country where we don't merely talk about freedom, we practice and work 
to preserve it.
  Symbols such as our flag don't just appear and receive acceptance. 
The flag hanging at the Smithsonian didn't come to be so large by 
chance--those who made that flag wanted our people to see it waving in 
the breeze and take cheer and for our opponents to see it and beware. 
The flag was born in our struggle for independence, and continues to 
exist in our struggle to ensure freedom for all Americans and other 
peoples of this world.
  Our flag has survived burning and desecration in this country and in 
other countries. It will survive, as will our faith in our country and 
our freedoms, no matter the strength of our enemies. We who believe in 
this country must recognize that our symbols, such as our flag, are 
important and must be protected and preserved for they are the very 
embodiment of the ideals, hopes and dreams they stand for. We must 
protect our flag just as we would protect those ideals.
  In 1942, Congress recognized that the flag should be treated in a way 
more special than the way we treat any other symbol. That year, the 
Congress enacted the Flag Code to set requirements for how the flag 
should be displayed and honored. In that day and time, the question was 
not how to prevent destruction and desecration but merely to set rules 
for the care and handling of the flag. There was no thought given to 
doing what we propose to do today because it was beyond thought that 
conditions would exist in this country that would require such action. 
Even then, Congress recognized that with freedom comes responsibility. 
It is time that we recognize that responsibility again as our 
predecessors in the Congress in 1942 did.

  Mr. President, I will close by quoting from an address in 1914 by 
Franklin K. Lane, then Secretary of the Interior, to the employees of 
the Department of the Interior on Flag Day, commenting on what the flag 
might say to us if it could speak:

     I am song and fear, struggle and panic, and ennobling hope.
     I am the day's work of the weakest man, and the largest dream 
           of the most daring.
     I am the Constitution and the courts, statutes and the 
           statute-makers, soldier and dreadnaught, drayman and 
           street sweep, cook, counselor, and clerk.
     I am the battle of yesterday and the mistake of tomorrow.
     I am the mystery of the men who do without knowing why.
     I am the clutch of an idea and the reasoned purpose of 
           resolution.
     I am no more than what you believe me to be, and I am all 
           that you believe I can be.
     I am what you make me, nothing more.

[[Page S398]]

     I swing before your eyes as a bright gleam of color, a symbol 
           of yourself, the pictured suggestion of that big thing 
           which makes this nation. My stars and stripes are your 
           dream and your labors. They are bright with cheer, 
           brilliant with courage, firm with faith, because you 
           have made them so out of your hearts. For you are the 
           makers of the flag and it is well that you glory in the 
           making.

  Mr. President, we made this flag as we made this nation. We can 
destroy this flag or we can protect and preserve it, just as we can 
destroy this nation or we can protect and preserve it.
  The choice is clear. The result is in our hands. As for me, I pledge 
allegiance to the Flag of the United States of America and to the 
Republic for which it stands, one Nation under God, indivisible, with 
liberty and justice for all.
  I urge the adoption and passage of this Constitutional amendment.
  Mr. COVERDELL. Mr. President, I am proud to join the Chairman of the 
Senate Judiciary Committee Senator Hatch, and others in introducing a 
constitutional amendment to prohibit the desecration of the flag of the 
United States of America. In the 104th Congress we fell a mere four 
votes shy of the two-thirds majority needed for the Senate's approval 
of a similar amendment. I encourage my colleagues to join in this 
effort and hope we will be able to address this matter before the end 
of the year.
  In a 1989 Supreme Court case, Texas versus Johnson, the Court 
erroneously ruled, by the narrowest of margins, 5 to 4, that flag 
burning is a constitutionally protected expression of First Amendment 
free speech rights. Again in 1990, in U.S. versus Eichman, the Supreme 
Court protected flag desecration by declaring unconstitutional a 
federal statute designed to protect our flag. I remain dumbfounded by 
these decisions. Former Supreme Court Justice Hugo Black, generally 
regarded as a First Amendment absolutist once stated ``It passes my 
belief that anything in the Federal Constitution bars a State from 
making the deliberate burning of the American flag an offense.'' It 
passes my belief as well.
  It is my belief that the American flag does not belong to one person; 
it belongs to the American people. When an individual desecrates a flag 
I believe he does not destroy private property but a national symbol, a 
public monument. Just as an individual cannot spray paint the 
Washington Monument as an exercise of free speech, nor should he be 
able to vandalize the American flag. I believe the American flag is 
``franchised'' to individuals who wish to display it. Thus, those who 
choose to display an American flag have an obligation to the American 
people and to the country to maintain and respect it.
  For more than 200 years Old Glory has symbolized hope, opportunity, 
justice and most of all, freedom. For this very reason our flag was 
protected from desecration by federal laws and laws in 48 states for 
many years. It is the will of the people that the States and Congress 
have the power to protect our national symbol. Let us now act on that 
will.
  Mr. President, it is my firm belief that this constitutional 
amendment would protect our flag without jeopardizing the First 
Amendment. It would overturn these erroneous interpretations and would 
place flag desecration in the same category as other forms of illegal 
expression including libel, slander and obscenity. I believe the unique 
nature of Old Glory ensures a constitutional amendment protecting it 
from desecration would not impinge upon citizens' First Amendment 
rights nor would it establish a dangerous precedent. It would simply 
prohibit offensive conduct with respect to our nation's most revered 
symbol. I urge my colleagues to support this most important amendment.
  Mr. ASHCROFT. Mr. President, I rise today in support of the proposed 
amendment to the United States Constitution to prevent desecration of 
our great national symbol. In 1995, I was an original co-sponsor of an 
amendment to the Constitution designed to protect the symbol of our 
nation and its ideals. When that resolution was defeated narrowly, we 
vowed that this issue would not go away and it has not. I stand here, 
again, today to declare the necessity of protecting the Flag of the 
United States of America and what it represents.
  Thoughout our history, the Flag has held a special place in the minds 
of Americans. As the appearance of the Flag changed with the addition 
of stars as the nation grew, its core meaning to the American people 
remained constant. It represents no particular perspective, political 
agenda, or religious belief. Instead, it symbolizes an ideal, not just 
for Americans, but for all those who honor the great American 
experiment. It represents a shared ideal of freedom. The Flag stands in 
this chamber and in our court rooms; it is draped over our honored 
dead; it flies at half-mast to mourn those we wish to respect; and it 
is the subject of our National Anthem, our National March and our 
Pledge of Allegiance. As the Chief Justice noted in his dissent in 
Texas v. Johnson (1989), ``[t]he American flag, then, throughout more 
than 200 years of our history, has come to be the visible symbol 
embodying our nation * * * Millions and millions of Americans regard it 
with an almost mystical reverence regardless of what sort of social, 
political, or philosophical beliefs they may have.''
  There can be little doubt that the people of this country fully 
support preserving and protecting the American Flag. The people's 
elected representatives reflected that vast public support by enacting 
Flag protection statutes at both the State and Federal levels. 
Regrettably, the Supreme Court thwarted the people's will--and 
discarded the judgment of state legislatures and the Congress that 
protecting the Flag is fully consistent with our Constitution--by 
holding that the American flag is just another piece of cloth for which 
no minimum of respect may be demanded. As a consequence, that which 
represents the struggles of those who came before us; which symbolizes 
the sacrifice of hundreds; and for which many men and women have died 
cannot be recognized for what it truly is--a national treasure in need 
of protection.
  Further, the question must be asked, what is the legacy we are 
leaving our children? At a time when our nation's virtues are too 
rarely extolled by our national leaders, and national pride is 
dismissed by many as arrogance, America needs, more than ever, 
something to celebrate. At a time when our political leaders are 
embroiled in scandalous allegations, we need a national symbol that is 
beyond reproach. America needs its Flag untainted, representing more 
than some flawed agenda, but this extraordinary nation. The Flag, and 
the freedom for which it stands, has a unique ability to unite us as 
Americans. Whatever our disagreements, we are united in our respect for 
the Flag. We should not allow the healing and unifying power of the 
Flag to become a source of divisiveness.
  The protection that the people seek for the Flag does not threaten 
the sacred rights afforded by the First Amendment. I sincerely doubt 
that the Framers intended the First Amendment of the Constitution to 
prevent state legislatures and Congress from protecting the Flag of the 
nation for which they shed their blood. At the time of the Supreme 
Court's decision, the tradition of protecting the Flag was too firmly 
established to suggest that such laws are inconsistent with our 
constitutional traditions. Many of the state laws were based on the 
Uniform Flag Act of 1917. No one at that time, or for 70 years 
afterwards, felt that these laws ran afoul of the First Amendment. 
Indeed, the Supreme Court itself upheld a Nebraska statute preventing 
commercial use of the Flag in 1907 in Halter v. Nebraska. As the Chief 
Justice stated in his dissent, ``I cannot agree that the First 
Amendment invalidates the Act of Congress, and the laws of 48 of the 50 
States which make criminal the public burning of the flag.''
  Nor do I accept the notion that amending the Constitution to overrule 
the Supreme Court's decision in the specific context of desecration of 
the Flag will somehow undermine the First Amendment as it is applied in 
other contexts. This amendment does not create a slippery slope which 
will lead to the erosion of Americans' right to free speech. The Flag 
is wholly unique. It has no rightful comparison. An amendment 
protecting the Flag from desecration will provide no aid or comfort in 
any future campaigns to restrict speech. Moreover, an amendment banning 
the desecration of the Flag

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does not limit the content of any true speech. As Justice Stevens noted 
in his dissent in Johnson v. Texas, ``[t]he concept of `desecration' 
does not turn on the substance of the message the actor intends to 
convey, but rather on whether those who view the act will take serious 
offence.'' Likewise, the act of desecrating the Flag does not have any 
content in and of itself. The act takes meaning and expresses conduct 
only in the context of the true speech which accompanies the act. And 
that speech remains unregulated. As the Chief Justice noted, ``flag 
burning is the equivalent of an inarticulate grunt or roar that, it 
seems fair to say, is most likely to be indulged in not to express any 
particular idea, but to antagonize others.''
  In sum there is no principle or fear that should stand as an obstacle 
to our protection of the Flag. It is my earnest hope that by Amending 
the Constitution to prohibit its desecration, this body will protect 
the heritage, sacrifice, ideals, freedom and honor that the Flag 
uniquely represents.
  Mr. CRAIG. Mr. President, I am pleased to join Chairman Hatch in 
introducing the joint resolution proposing a constitutional amendment 
to protect from physical desecration the flag of the United States. 
This is the same resolution that the House has passed, and we hope it 
will soon be passed by this body and sent to the American people for 
ratification.
  Some of my colleagues may remember the time I came to this Senate 
floor with memorials from forty-three state legislatures, urging 
Congress to take action to protect the American flag from physical 
desecration. Those memorials were inserted in the Congressional Record 
for all to read. Today that number has swelled to forty-nine states, 
eleven more than are needed to ratify an amendment
  Since this amendment was proposed in 1989, poll after poll has found 
that eighty percent of the American people consistently support a flag 
protection amendment. These polls have been performed in times when 
flag burnings have been more frequent, and times when the flag burners 
have been fairly quiet; yet the result is always the same--Americans 
want the flag protected.
  Mr. President, today, we have an opportunity to respond to the 
American people by passing this resolution and sending a very simple 
amendment to the states for ratification. This amendment authorizes 
Congress to prohibit physical desecration of the flag of the United 
States. It is a very straight-forward proposal, and the only way this 
goal can be accomplished, according to the U.S. Supreme Court.
  Our flag, which predates our Constitution, articulates ``America,'' 
more clearly than any other symbol does. Our flag represents the 
tapestry of diverse people that is America--as well as the values, 
traditions, and aspirations that bind us together as a nation. It waves 
as a patriotic symbol of our values. It's amazing to see how our flag 
captures basic American values and inspires people to protect them. In 
return, the vast majority of the American people want our flag 
protected from acts of intentional, public desecration.
  We have many songs for our flag and have even named it Old Glory. 
That's because our flag holds a special place in our hearts. No other 
emblem of our nation has been defended as a symbol of freedom so 
animatedly. No other symbol has brought our country closer together, 
dedicated to life, liberty, and the pursuit of happiness. No other 
token has drawn immigrants to our nation, with the promise of 
democracy. No other artifact inspires us to rise to the same level of 
dignity and patriotism.
  Our flag's leading troops into battle is an American tradition, 
inspiring both families at home and those on the front lines; it has 
inspired men and women to great accomplishments; it flies over our 
government buildings because it symbolizes our republic; it is 
displayed in our schools as a reminder of the importance of learning 
and our desire for an educated people; it is flown from the front of 
our homes because we are proud to be Americans and we are proud of the 
contributions our nation has made; it waves above our places of 
business as a testament to the free enterprise system; it hangs in our 
houses of worship as a symbol of our freedom to worship God as our 
conscience dictates. The flag represents the values, traditions and 
aspirations that bind us together as a nation. It stands above our 
differences and unites us in war and peace.
  The American people want an amendment to protect the flag from 
desecration, and they should be given the opportunity to ratify it. We, 
as servants of the American people, shouldn't act as stumbling blocks. 
Instead, we should respond by passing this resolution. If the American 
people don't want this amendment, they can vote to reject it. However, 
we should remember that already more than three million people have 
signed petitions asking Congress to pass a flag-protection amendment 
and send it to the states for ratification. This is the first step in 
that process.
  Flag desecration is offensive to the majority of Americans. To 
publicly desecrate even one flag promotes nothing worthwhile in our 
society, communicates no clear message, and tears at the fabric of our 
nation. Chief Justice William Rehnquist said, ``One of the high 
purposes of a democratic society is to legislate against conduct that 
is regarded as evil and profoundly offensive to the majority of 
people--whether it be murder, embezzlement, pollution, or flag 
burning.'' The U.S. flag is more than just a piece of cloth. It 
represents the fabric of our nation. I urge my colleagues to listen to 
the voice of the American people and join us in protecting our flag.
  Mr. SMITH of New Hampshire. Mr. President, I am pleased to join 
Senators Hatch and Cleland and others, as an original co-sponsor of 
S.J. Res. 40, the proposed constitutional amendment to protect our 
Nation's flag.
  The act of flag burning--or any other kind of flag desecration--is an 
aggressive, provocative act. It is also an act of violence against the 
symbol of America--our flag. Even more disturbing, it is an act of 
violence against our country's values and principles. The Constitution 
guarantees freedom, but it also seeks to assure, in the words of the 
Preamble, ``domestic Tranquility.''
  Many Americans have given their lives to protect freedom and 
democracy as symbolized by the flag. In my own family, my father died 
in a service-related accident during World War II. Our family was 
presented with his burial flag. That flag means a great deal to our 
family--and we believe that the flag deserves protection under the law.
  Some people believe that outlawing desecration of the flag--which 
this Constitutional Amendment would authorize the Congress to do--would 
lead to the destruction of ``freedom.'' I disagree. Our Constitution 
was carefully crafted to protect our freedom, but also to promote 
responsibility. We are stepping on dangerous ground when we allow 
reckless behavior such as flag burning or other forms of physical 
desecration of the flag.
  The Constitution that our Nation's Founders fashioned has survived 
the tests of time, but it has also been amended on 27 occasions. Under 
our Constitution, the Supreme Court does not have more power than the 
people. The people do not have to accept every Supreme Court decision--
because ultimate authority rests in the Constitution, which the people 
have the power to amend.
  The idea of amending the Constitution is serious business. We have 
found, however, that a simple statute is not enough. We tried that, and 
the Court struck it down. We must stand for something or we stand for 
nothing. I stand for a constitutional amendment authorizing Congress to 
ban flag desecration and I am confident that we will succeed in passing 
it in this Congress and submitting it to the States for ratification.
  Mr. SMITH of Oregon. Mr. President, the people of the United States 
revere the American flag as a unique symbol of our great nation. It 
symbolizes the national unity that exists among diverse people, the 
common bond that binds us and makes us Americans. We are a nation that 
is defined by democracy. The flag symbolizes this democracy not only to 
ourselves, but to all other nations. It is through this democratic 
process that we feel free to exercise and enjoy the many liberties 
guaranteed to us.
  Over the years, Congress has reflected respect and devotion to the 
American flag. In 1931, it declared the Star Spangled Banner to be our 
national anthem, and in 1949, established

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June 14 as Flag Day. In 1987, Congress designated John Philip Sousa's 
`The Stars and Stripes Forever' as the national march. Congress also 
has established detailed rules for the design and the proper display of 
the flag. Today, we have an opportunity to add one more important 
gesture of support for our national symbol, to pass an amendment that 
prohibits the physical desecration of the Flag of the United States.
  Since 1990, 49 states have passed memorializing resolutions calling 
on Congress to pass a flag desecration amendment for consideration by 
the states.
  Public opinion surveys have consistently shown that nearly 80 percent 
of all Americans support a constitutional amendment to prohibit flag 
desecration and do not believe that freedom of speech is jeopardized by 
this protection. Among the grassroots groups that endorse this 
legislation is the Citizens Flag Alliance, an alliance comprised of 119 
civic, patriotic and veterans organizations, including The American 
Legion, AMVETS, the Knights of Columbus, the National Grange, the Grand 
Lodge, Fraternal Order of Police, and the African-American Women's 
Clergy Association.
  This amendment, grants Congress and the states the power to prohibit 
physical desecration of the flag, but does not amend the First 
Amendment.
  If we want to embrace the will of the American people, if we want to 
reserve the flag's unique status as our nation's most revered and 
profound symbol, and if we believe the flag is important enough to 
protect from physical desecration, then we should pass this 
Constitutional amendment.
  Mr. President, I urge my colleagues to join me in support of this 
amendment.
  Mr. THURMOND. Mr. President, I am pleased to rise as an original 
cosponsor of a proposed constitutional amendment prohibiting the 
physical desecration of the flag of the United States.
  I have fought to achieve Constitutional protection for the flag ever 
since the Supreme Court first legitimized flag burning in the case of 
Texas v. Johnson in 1989. To date, we have not been successful in out 
efforts to pass a Constitutional amendment by the required two-thirds 
majority.
  However, we have come close, and, most importantly, we have refused 
to quit. Last year, the House passed the amendment with the necessary 
votes, and I am very hopeful that we will follow suit in the Senate 
this year.
  Some say that burning or defacing the American flag is not widespread 
enough or important enough for a constitutional amendment. I could not 
disagree more.
  Since the birth of the Republic, the flag has been our most 
recognizable and revered symbol of democracy. It represents our Nation, 
our national ideals, and out proud heritage.
  Men and women of our Armed Forces have put their lives on the line to 
defend the principles and ideals that the flag represents. Soldiers 
have risked and even lost their lives to prevent the flag from falling.
  To say that the flag is not important enough to protect is to say 
that the values that hold us together as a Nation are not worth 
defending.
  Flag burning may be rare, but even it is, it is not acceptable--I 
repeat, it is not acceptable. It is not tolerable. I hate to see anyone 
burn or deface the flag to make some statement. Why should society let 
even one person wrap themselves around some absolute interpretation of 
the First Amendment to protect indefensible speech? Have we focused so 
much on the rights of the individual that we have forgotten the rights 
of the people?
  It is clear that the American public strongly favors this amendment. 
Opinion polls register overwhelming support. Every state except one has 
passed resolutions calling for a Constitutional amendment to protect 
the flag. It is a feeling of great pride to know of the sincere 
national patriotism that this support represents.
  The House has already acted. It is now our turn in the Senate. We 
have a profound responsibility to pass this constitutional amendment as 
quickly as possible so that it can go to the States for ratification.
  I urge my colleagues in the strongest terms to join us in this great 
effort to restore protection for the American flag. The flag of the 
United States, the symbol of freedom and democracy, must always be 
protected, and forever wave over the land of the free and the home of 
the brave.

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