[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
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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
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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
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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.
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