[Congressional Record Volume 145, Number 42 (Wednesday, March 17, 1999)]
[Senate]
[Pages S2865-S2868]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                FLAG PROTECTION 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 bipartisan constitutional amendment to permit Congress to enact 
legislation prohibiting the physical desecration of the American flag.
  The American flag serves as a symbol of our great nation. The flag 
represents our country in a way nothing else can; it represents 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.
  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.

  Throughout our history, the flag has captured the hearts and minds of 
school teachers, construction workers, police officers, grandmothers, 
and public servants. Who can forget the image of Neil Armstrong and 
Buzz Aldrin planting the American flag on the moon? At that moment, the 
flag stood not only for the triumph of American know-how and the 
courage of Americans to explore the unknown, but also for freedom. It 
was a statement that whatever Americans do, we do to promote liberty, 
equality, and justice.
  And, what of those children who recite the ``Pledge of Allegiance'' 
every morning in classrooms all across America? They are pledging to be 
good citizens, honest and loyal and just. In pledging allegiance to the 
flag, they are affirming their belief in ``liberty and justice for 
all.''
  And, throughout our history, men and women in uniform have drawn 
courage from our flag and gave their lives for the values it 
symbolizes. No matter the era, no matter the color of uniform--whether 
Army green, Air Force blue, or Navy white--no matter the theater of 
battle--whether at Gettysburg, San Juan Hill, Iwo Jima, Korea, Da Nang, 
or the Persian Gulf--our men and women had one common bond: the 
American flag.
  Consider the example of Army Corporal Joseph Quintero, a prisoner of 
the Japanese during World War II. Quintero secretly led a group of POWs 
in obtaining red, white, and blue material to make an American flag. 
The flag lifted the hearts of the Americans who were suffering from 
malnutrition, overwork, and physical abuse. When American planes 
started to attack the prison camp, Quintero waived Old Glory and the 
planes stopped the attack and saved numerous American lives. Even in 
the worst of conditions, Joseph Quintero knew the value of the American 
flag.
  From my home State of Utah, there is the courageous example of Lt. 
William E. Hall, whose fearless actions in the Battle of the Coral Sea 
earned him the Congressional Medal of Honor. Lieutenant Hall attacked a 
Japanese aircraft carrier and then Japanese planes in a series of 
highly dangerous engagements. Though seriously wounded, Lt. Hall guided 
his plane back to a landing strip marked by the American flag.
  General Schwarzkopf in a speech before Congress thanked the American 
people for their support of our troops in Operation Desert Storm, 
stating: ``The profits of doom, the naysayers, the protesters and the 
flag-burners all said that you wouldn't stick by us, but we knew 
better. We knew you'd never let us down. By golly, you didn't.''
  We respect the sacrifices of our men and women in uniform because we 
respect what they died for. They did not give their lives for ground, 
prestige, wealth, or a monarch. They sacrificed their lives for 
freedom, opportunity, and justice--all represented by our nation's flag 
of 50 stars and thirteen stripes. Through the American flags at 
Arlington National Cemetery, on the Iwo Jima Memorial, and at every 
school yard, we honor those sacrifices. But there are those who do not.
  In 1984, Greg Johnson led a group of radicals in a protest march. He 
doused an American flag with kerosene and set it on fire as his fellow 
protestors chanted: ``America, the red, white, and blue, we spit on 
you.'' While traditional First Amendment jurisprudence would protect 
Johnson's ability to speak and write about the flag, it did not protect 
his ability to physically destroy the flag.
  But, in 1989, the Supreme Court abandoned the history and intent of 
the First Amendment by creating a new standard that made no distinction 
between oral and written speech about the flag and disrespectful 
conduct toward the flag. In Texas v. Johnson, five members of the 
Court, for the first time ever, overturned a conviction based solely on 
physical conduct toward the American flag. The majority argued that the 
First Amendment had somehow changed and that it now prevented a state 
from protecting the American flag from acts of physical desecration. 
When Congress responded with a federal flag protection statute, the 
Supreme Court, in United States v. Eichman, used its new and changed 
interpretation of the First Amendment to strike it down by a 5-4 vote.
  Under this new interpretation of the First Amendment, it is assumed 
that the people, their elected legislators, and the courts can no 
longer distinguish between speech and conduct. Because of this assumed 
inability to make such distinctions, there are those who argue that our 
freedom to express political ideas is wholly dependent on treating Greg 
Johnson's burning of the American flag exactly like oral and written 
speech.
  This ill-advised argument fails because its basic premise--that 
legislatures and courts cannot distinguish between oral and written 
expression and disrespectful physical conduct--is so obviously false. 
It is precisely this distinction that legislatures and courts did make 
for almost 200 years. Just as judges have distinguished which laws and 
actions comply with the constitutional command to provide ``equal 
protection of the laws'' and ``due process of law,'' so too have judges 
distinguished between free speech and destructive conduct, and have 
limited the latter.
  Destructive conduct, such as breaking down the doors of the State 
Department, may be a way of expressing one's

[[Page S2866]]

dissatisfaction with the nation's foreign policy objectives. Laws, 
however, can be enacted preventing such actions in large part because 
there are alternatives that can be equally powerful. I should also note 
that 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.
  Moreover, the people themselves did not elevate the act of flag 
desecration to a constitutionally protected status, which the Supreme 
Court did in Johnson and Eichman. Such an extreme view was never 
drafted by the Congress or ratified by the people. Indeed, such a 
protection is contradicted by the original and historic intent of the 
First Amendment. Thus, in this Senator's view, the Supreme Court erred 
in Johnson and in Eichman.
  It has also been argued that another flag protection statute could 
pass constitutional muster under the ``fighting words'' doctrine. In 
R.A.V. v. City of St. Paul, however, the Supreme Court expanded the 
newly created, so-called ``right'' to burn the flag by stating that any 
statute that specifically targeted the American flag for protection was 
unconstitutional, regardless of the ``fighting words'' doctrine. Thus, 
a constitutional amendment is the only means left to protect the flag.
  It has been argued that a constitutional amendment to protect the 
flag should be ``content neutral'' and prohibit not only disrespectful 
destructions of the flag, but all destructions of the flag. Such an 
amendment would sweep too broadly by prohibiting the ceremonial 
disposal of a flag and the traditional printing of regimental names on 
the flag. In short, a ``content neutral'' amendment misses the point. 
It is the traditional constitutional protection for the dignity of the 
flag that must be restored, not a new broad ban on any conduct with a 
flag that should be created. Only a narrowly tailored amendment can 
accomplish this honorable purpose.
  The amendment that Senator Cleland and I propose affects only the 
most radical and disrespectful forms of conduct towards the American 
flag. The amendment will leave untouched the current constitutional 
protections for Americans to speak their sentiments at a rally, to 
write their sentiments to their newspaper, and to vote their sentiments 
at the ballot box. The amendment simply restores the traditional and 
historic power of the people's elected representatives to prohibit the 
disrespectful physical destruction of the flag.
  Further, it is clear that restoring legal protection to the American 
flag will not place us on a slippery slope to limit other freedoms. No 
other symbol of our bipartisan national ideals has flown over so many 
of our battlefields, cemeteries, school yards, and homes. No other 
symbol has been paid for with so much of our countrymen's blood. No 
other symbol has encouraged so many ordinary men and women to seek 
liberty and justice for all.
  In recent months, my colleagues on both sides of the political aisle 
have called for a new bipartisan spirit in Congress. This amendment 
fits the bill. Restoring legal protection to the American flag is not, 
nor should it be, a partisan issue. Including Senator Cleland and 
myself, 57 senators, both Republicans and Democrats, have joined as 
original cosponsors of this amendment.
  Over 70 percent of the American people want the opportunity to vote 
to protect their flag. Numerous organizations, including the Medal of 
Honor Recipients for the Flag, the American Legion, the American War 
Mothers, the American G.I. Forum, and the African-American Women's 
Clergy Association all support the flag protection amendment. Forty-
nine state legislatures have passed resolutions calling for 
constitutional protection for the flag. Last Congress, the House of 
Representatives overwhelmingly passed this amendment by a vote of 310-
114, and will pass it again this year.
  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. Having served in the military as he has done 
with such distinction and with courage, he has earned the right to 
speak for the protection of the flag.
  I am, therefore, proud to rise today and introduce a constitutional 
amendment that will restore to the people's elected representatives the 
right to protect one unique national symbol, the American flag, from 
acts of physical desecration.
  Mr. President, I ask unanimous consent that the text of the proposed 
amendment be included in the Record.
  There being no objection, the resolution was ordered to be printed in 
the Record, as follows:

                              S.J. Res. 14

       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. CLELAND. Mr. President, I want to first thank my dear friend and 
colleague, the distinguished chairman of the Judiciary Committee, 
Senator Hatch. His dedicated leadership on this important matter is 
unparalleled and, without it, we would not have been able to gain all 
of the support we have for this important legislation. I am proud to 
say that the resolution regarding the flag protection amendment Senator 
Hatch and I are introducing today has 57 original co-sponsors, and I am 
hopeful that we will be able to bring this important matter to a final 
vote in the Senate this year.
  As I have stated many times before, I am a strong supporter of a 
Constitutional amendment to prohibit the physical desecration of the 
United States flag. The amendment we are proposing is simple. It simply 
vests 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.
  I understand the concerns that others have about the impact on the 
First Amendment that this bill might have, and as a veteran who risked 
his life in Vietnam to protect the principles of freedoms that 
Americans hold sacred, I am a strong supporter of the First Amendment. 
However, I believe that an amendment to protect the flag is an 
acceptable limitation in order to protect the most sacred of American 
symbols. I strongly believe that the societal interest in preserving 
the symbolic value of the flag outweighs the interest in an individual 
choosing to physically desecrate the flag. The flag unites Americans as 
no symbol can. The flag is sacred. Those who would desecrate the flag 
would desecrate America and the freedoms that we hold inviolate.
  I cannot presume to know the importance of the American flag for each 
individual American. But I can say without doubt, that it is the only 
unifying symbol that the vast diversity of this great nation has. No 
matter one's age, religion, culture, ethnicity, race, or gender--every 
American is represented by the United States flag and the flag 
undoubtedly bonds Americans together.
  The tradition of the flag goes back to this country's birth. Indeed, 
it even inspired our national anthem. Until the Supreme Court struck 
down a state flag protection law in Texas versus Johnson in 1989, there 
have always been state and federal laws protecting the flag from acts 
of physical desecration. In fact, flag protection can be traced back to 
our founding fathers who strongly supported the government's protection 
of the flag. James Madison and Thomas Jefferson, who were instrumental 
in framing the Constitution, recognized that protecting the flag and 
preserving the First Amendment were consistent. They often spoke out 
against desecration of the flag and sought to protect the sovereignty 
interest in the flag. Both Madison and Jefferson considered that a 
defacement of the flag should be a violation of the law. In fact, 
Jefferson believed that such a violation should invoke a ``systematic 
and severe'' course of punishment for persons who violated the flag.
  I do not profess to be a constitutional scholar. But I, like many 
Americans, do not agree with the Supreme Court's ruling in Texas v. 
Johnson, and United States v. Eichman which struck down

[[Page S2867]]

statutes protecting the United States flag as unconstitutional 
violations of the First Amendment right to free speech. I respect 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 some of 
the most learned scholars in American jurisprudence. Several Supreme 
Court Justices over the years have issued opinions recognizing the 
importance of protection of the flag, including 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. Perhaps Chief Justice Rehnquist explained it best 
in his dissent in Texas versus Johnson which was joined by Justices 
O'Connor and White, when he said:

     [t]he American flag . . . throughout more than 200 years of 
     our history, has come to be the visible symbol embodying our 
     Nation. It does not represent the views of any particular 
     political party, and it does not represent any particular 
     political philosophy. The flag is not simply another `idea' 
     or `point of view' competing for recognition in the 
     marketplace of ideas. 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. 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.

  Nonetheless, the current Supreme Court view stands. That is what 
brings us here today. In an attempt to protect the flag, Congress has 
been forced to enact a constitutional amendment. The House has twice 
overwhelmingly passed resolutions that would begin the formal process 
of amending the Constitution to protect the flag. Unfortunately, it has 
been the Senate that has blocked these efforts. However, the vote has 
always been close in the Senate and I am hopeful that we will succeed 
this year.
  The will of the people in this matter is clear. The polls continue to 
show that more than 80 percent of the American people believe that 
Congress should act to protect the flag and that it is worth amending 
the Constitution to do so. The Supreme Court decision in Texas versus 
Johnson in effect invalidated the laws in 48 states and the District of 
Columbia that prohibited flag desecration. Since the Supreme Court's 
decision, 49 of the 50 State legislatures have adopted resolutions 
asking Congress to send the flag protection amendment to the States for 
ratification. I believe we ought to let the American people decide. 
Therefore, I lend my full support to efforts to send this initiative 
back to the States and American people for ratification.
  Although support for government action to protect the United States 
flag comes from all sectors of the American public, I have been 
particularly moved by the voices of our veterans who have fought and 
died to defend the freedoms guaranteed to all Americans in the 
Constitution. The U.S. flag is a manifestation of those freedoms and 
holds particular significance to those who have risked their lives to 
protect this country and the flag which embodies them. In fact, in many 
cases the U.S. has presented the Medal of Honor to veterans for their 
uncommon valor in protecting the flag in times of war. As Justice 
Stevens said in his dissenting opinion in Texas versus Johnson:

       The freedom and ideals of liberty 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, their 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.

  The military has always used the flag to honor those who fought and 
died to protect our freedoms. We honor the members of our armed forces 
by draping a flag over the coffin of a slain soldier, placing a flag 
near a soldier's grave, or displaying a flag on Memorial Day and 
Veterans' Day. To permit people to physically desecrate the flag 
diminishes the honor we bestow upon them and tarnishes its value and 
the brave service of those individuals who fought to defend it.
  As Chief Justice Harlan once said, ``love both of the common country 
and of the State will diminish in proportion as respect for the flag is 
weakened.'' Perhaps my colleagues who do not agree with me upon this 
issue will believe that I have overly dramatized the meaning of the 
flag, but for me personally, who fought to defend the principles of 
freedom we hold sacred, the protection of the flag which represents 
them cannot be ignored. I believe we must use this opportunity to show 
the world that we reaffirm our commitment to the ideals the flag stands 
for and what so many Americans fought for.
  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. I want to thank Chairman Hatch for his 
continuing dedication to this issue, and I want to applaud him for 
reintroducing the flag amendment today. I believe that our nation's 
symbol is a unique and important part of our heritage and culture, and 
worthy of respect and protection. 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.
  Throughout our history, the Flag has held a special place in the 
hearts and minds of Americans. As the appearance of the Flag has 
changed with the addition of stars as the nation has grown, its core 
meaning to the American people has remained constant. 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, 
sacrifice, morality, history, unity, patriotism, loved ones lost, the 
American way of life and even America itself. 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. America's inability to demand a modicum of respect for the 
flag leads not only to the desecration of our nation's symbol, but of 
the important values upon which this nation was founded. As the Chief 
Justice noted in his dissent in Texas versus 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. During a recent 
hearing that I chaired on ``The Tradition and Importance of Protecting 
the United States Flag'' held by the Subcommittee on the Constitution, 
Federalism, and Property Rights, the witnesses noted that an 
unprecedented 80% of the American people supported a constitutional 
amendment to protect the flag. The people's elected representatives 
reflected that vast public support by enacting Flag protection statues 
at both the State and Federal levels. In fact, 49 State Legislatures 
have passed resolutions asking Congress to send a constitutional 
amendment to the States for ratification. 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, as far as the 
Constitution is concerned, 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, our current ideals, and our hopes for years to come, 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 labor 
under the taint of scandal, we need a national symbol

[[Page S2868]]

that is beyond reproach. America needs its Flag unblemished, 
representing more than any person or any partisan interest, 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 are in 
need of healing. 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 versus 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 decisions 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 not rightful counterpart. 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 does not limit the content of any true 
speech. As Justice Stevens noted in his dissent in Johnson versus 
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 offense.'' 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 principal or fear that should stand as an 
obstacle to our protection of the Flag. Unfortunately, at no other time 
in history has our country so needed such a symbol of sacrifice, honor, 
unity and freedom. 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.

                          ____________________