[Congressional Record Volume 146, Number 36 (Tuesday, March 28, 2000)]
[Senate]
[Pages S1793-S1807]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
FLAG DESECRATION CONSTITUTIONAL AMENDMENT--Resumed
Amendment No. 2889
The PRESIDING OFFICER. We now have 4 minutes equally divided under
the McConnell amendment No. 2889, S.J. Res. 14.
The Senator from Kentucky.
Mr. McCONNELL. Mr. President, we all despise those who desecrate the
flag. The issue before the Senate today is how we should deal with that
problem.
In the late 1980s, the Congress passed a statute designed to prohibit
this vile practice. It was struck down by the Supreme Court on First
Amendment grounds. For the last several years we have had proposals in
the Senate to amend the Bill of Rights in order to prohibit flag
desecration despite the First Amendment. However, I think we should be
very reluctant about amending the Bill of Rights.
Therefore, I have offered the amendment which we will be voting on
shortly. It takes a new a statutory approach that I am confident would
be upheld by the Supreme Court. Simply put, my alternative approach
protects the flag by prohibiting three kinds of desecration. First,
desecration of the flag that incites violence or breach the peace.
Second, desecration of a flag belonging to the United States
government. Third, desecration of a flag stolen from someone else and
destroyed on government land. Anyone who engages in any of this kind of
reprehensible behavior would be subject to fines of up to $250,000 and/
or imprisoned for up to 2 years. I think this is a better approach than
tinkering with the Bill of Rights for the first time in 200 years.
The PRESIDING OFFICER. The Senator from Utah.
Mr. HATCH. Mr. President, I generally support the distinguished
Senator from Kentucky on all campaign finance reform issues because I
think he is one of the most learned people, if not the most learned
person in this area and on many other occasions. On this issue I
cannot.
I predicted back in 1989 it was unconstitutional when they passed the
statute, which passed overwhelmingly by a lot of people who, today,
when this amendment is finally voted upon, will vote against it. In
other words, they passed the statute that would do what this amendment
would allow the Congress, if it so chooses to do, to do.
It seemed illogical to me they are unwilling to do what really has to
be done because we have had two statutory attempts to resolve the
problem of physical desecration of our beloved American flag. Both
times I predicted it was unconstitutional under the Supreme Court's
decisions, and both times they were held to be unconstitutional. So a
statute is not going to do the job.
In spite of good intentions, the only way we can resolve this problem
and do it effectively without taking anybody's rights away is to do
what we are doing--not passing a constitutional amendment that
prohibits physical desecration of the flag. We are passing a
constitutional amendment that gives the Congress a coequal status with
the judiciary, two coequal branches of Government to have the right to
determine what to do with regard to the flag. That is what we intend to
do.
I hope our colleagues will vote against this amendment because it
[[Page S1794]]
would undermine, of course, the constitutional amendment.
Mrs. BOXER. Mr. President, I rise to oppose amending the Constitution
of the United States to outlaw flag burning, and I will support the
McConnell statute to punish flag burners who want to incite violence.
The flag stands for freedom, and so does our Bill of Rights. I believe
that both must be protected.
Colin Powell recently wrote, ``I would not amend that great shield of
Democracy to hammer a few miscreants. The flag will still be flying
proudly long after they have slunk away. Finally, I shudder to think of
the legal morass we will create in trying to implement the body of law
that will emerge from such an amendment.''
As our good friend John Glenn, a great Senator, a great astronaut,
and a great Marine, once declared, ``[I]t would be a hollow victory
indeed if we preserved the symbol of our freedoms by chipping away at
those fundamental freedoms themselves. Let the flag fully represent all
the freedoms spelled out in the Bill of Rights, not a partial, watered-
down version that alters its protections.''
We can solve this problem with an amendment that is identical to a
statute written by the Senator from Kentucky, the Flag Protection Act
of 1999.
This amendment would protect the flag of the United States from being
destroyed or damaged in certain situations. Under this amendment, any
person who destroys or damages the flag of the United States with the
primary purpose and intent to incite or produce imminent violence or a
breach of peace will receive a stiff fine, imprisonment, or both.
This amendment also increases the fine and imprisonment penalties for
damaging a flag belonging to the United States or damaging a flag on
Federal land.
I support this amendment because I believe that our flag is the very
symbol of our liberty, unity, and equality as a nation--a proud
reminder of the democracy we hold so dear. But while we should protect
the American flag, we also must remain vigilant in our protection of
the Constitution.
This amendment stands on solid constitutional ground. Although the
statute criminalizes the destruction or damaging of the American flag
with the intent to provoke imminent violence or breach of the peace,
Supreme Court precedent supports this approach. In Chaplinsky v. New
Hampshire (1942), the Court upheld the constitutionality of laws that
prohibit expression calculated, and likely to cause, a breach of the
peace.
So I support this amendment because it not only protects our American
flag, but it also preserves the rights and freedoms established in the
United States Constitution.
Today, we have an opportunity to protect our flag. But just as
important, we can preserve the constitutional ideals symbolized by the
flag.
Mr. KYL. Mr. President, I rise in support of S.J. Res. 14, the flag
protection constitutional amendment, and to explain, quite briefly, my
opposition to Senator McConnell's statutory substitute.
The McConnell amendment (No. 2889) would amend the U.S. Code to
establish jail terms and fines for (1) damaging a flag ``with the
primary purpose and intent to incite or produce imminent violence or a
breach of the peace,'' (2) damaging a flag that belongs to the United
States, or (3) damaging a flag that belongs to a third party if the
damage occurs within the ``exclusive or concurrent jurisdiction of the
United States.'' See Section 3, proposed 18 U.S.C. 700.
I oppose the McConnell amendment for three reasons. First, the narrow
strictures of the amendment would provide little protection for the
flag. For example, the McConnell amendment would not apply to the very
case (Texas v. Johnson, 491 U.S. 397 (1989)) in which the Supreme Court
struck down flag protection statutes. In that case, Gregory Johnson
burned a flag that had been stolen from a bank. He did not burn the
flag on Federal property; be burned it in front of city hall as a
political protest. Thus, the second and third restrictions of the
McConnell amendment (a ban on destroying flags stolen from the United
States, and a ban on destroying stolen flags on Federal property) would
not have applied. As for the first restriction (a ban on burning a flag
when such action could cause imminent violence or a breach of the
peace), it is important to note that the Court in Texas v. Johnson
found that unless there was evidence that a riot ensued or threatened
to ensue one could not protect the flag under the breach of the peace
doctrine.
Second, it seems unlikely that the amendment would survive scrutiny
by the U.S. Supreme Court. In response to Texas v. Johnson, Congress
quickly enacted a facially content-neutral, flag-protection statute
that it hoped would pass constitutional muster. See Public Law 101-131.
On June 11, 1990, in United States v. Eichman (496 U.S. 310 (1990)),
the Supreme Court struck down that law. The Court found the following:
``Although the Flag Protection Act contains no explicit content-based
limitation on the scope of prohibited conduct, it is nevertheless clear
that the government's asserted interest is `related to the suppression
of free expression,' and concerned with the content of such expression.
The Government's interest in protecting the `physical integrity' of a
privately owned flag rests upon a perceived need to preserve the flag's
status as a symbol of our Nation and certain national ideas.'' Id. at
315-16. If precedent is an accurate guide, it is likely that the Court
would reach a similar conclusion if it considered the McConnell
amendment.
Finally, as one of the 58 Senate sponsors of S.J. Res. 14, I want to
see that resolution receive an up-or-down vote. The sponsors of the
amendment and the numerous veterans, patriotic, civic, and religious
groups have worked hard to bring the constitutional amendment to a
vote.
In closing, I would like to reaffirm my support for S.J. Res. 14. I
cannot believe that our Founding Fathers intended ``freedom of
expression'' to encompass the willful destruction of our national
symbol--the symbol of America that so many of our sons and daughters
have given their lives to defend.
Mr. HATCH. Mr. President, I ask for the yeas and nays.
The PRESIDING OFFICER. Is there a sufficient second?
There is a sufficient second.
The question is on agreeing to amendment No. 2889.
The clerk will call the roll.
The assistant legislative clerk called the roll.
The result was announced--yeas 36, nays 64, as follows:
[Rollcall Vote No. 45 Leg.]
YEAS--36
Akaka
Bennett
Biden
Bingaman
Boxer
Bryan
Byrd
Chafee, L.
Conrad
Daschle
Dodd
Dorgan
Durbin
Edwards
Gorton
Graham
Harkin
Inouye
Jeffords
Johnson
Kerry
Kohl
Lautenberg
Leahy
Levin
Lieberman
McConnell
Mikulski
Moynihan
Murray
Nickles
Sarbanes
Schumer
Smith (OR)
Torricelli
Wyden
NAYS--64
Abraham
Allard
Ashcroft
Baucus
Bayh
Bond
Breaux
Brownback
Bunning
Burns
Campbell
Cleland
Cochran
Collins
Coverdell
Craig
Crapo
DeWine
Domenici
Enzi
Feingold
Feinstein
Fitzgerald
Frist
Gramm
Grams
Grassley
Gregg
Hagel
Hatch
Helms
Hollings
Hutchinson
Hutchison
Inhofe
Kennedy
Kerrey
Kyl
Landrieu
Lincoln
Lott
Lugar
Mack
McCain
Murkowski
Reed
Reid
Robb
Roberts
Rockefeller
Roth
Santorum
Sessions
Shelby
Smith (NH)
Snowe
Specter
Stevens
Thomas
Thompson
Thurmond
Voinovich
Warner
Wellstone
The amendment (No. 2889) was rejected.
Amendment No. 2890
The PRESIDING OFFICER. The Senate will now consider amendment No.
2890 to S.J. Res. 14 offered by Senator Hollings. There are 4 minutes
equally divided.
Mr. HOLLINGS. Mr. President, my colleagues all acknowledge the need
for more and more money each time we come up for election or get into
political campaigns.
There has been very little discussion of the actual chase for that
money which has corrupted the institution. I hate to say that. When I
got here 33 years ago, we would come to work, and Senator Mansfield,
the majority leader, would have a vote at 9 o'clock on Monday morning.
Senator Byrd did the
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same thing as majority leader. We would work throughout the week up
until 5 o'clock on Friday. Now Mondays and Fridays are gone. We start
on the half day on Tuesdays, and then Wednesdays and Thursdays we all
want a window.
There is no window in the Chamber, but there are plenty of windows.
You to have get with the dialog, as they call it up here, and that is
for the money chase. We used to have the extended Easter break and the
Fourth of July, but now we have not only January gone, there are 10
days in February, March, April, 10 days in May, June, the July break,
August, the month off, and we are supposed to go home and get money.
If you go to the leader and ask, please call up a bill, it may take 3
or 4 days, he looks at you as if you are loony. Talk about debating,
deliberating--this deliberative body has been so corrupted, it can't
deliberate. Don't give me this so-called eviscerate the first
amendment. Buckley v. Valeo did that. The intent there was that every
mother's son, anybody of ordinary means, could offer for the
Presidency. What has really happened is that we have taken away the
speech of those who are without money. And for those who are
millionaires, they can buy the office. In fact, it has stood the intent
on its head whereby, instead of forbidding the purchase of the office,
we have to buy it. You have to get more money.
I hope we will vote for this constitutional amendment which is
neutral. It is not pro or con McCain-Feingold or public financing or
whatever it is. It gives the people a chance to vote. All you have to
do is look to the primaries we have just gotten through. The people are
ready, willing, and able to vote and stop this corruption.
I thank the Chair.
The PRESIDING OFFICER. The Senator from Utah has 2 minutes.
The Senator from Kentucky.
Mr. McCONNELL. Mr. President, we had this constitutional amendment
before us in 1997. It only got 38 votes, and it takes 67 votes to
change the constitution. Frankly, I am surprised it even got 38 votes.
This amendment would essentially repeal a major part of the First
Amendment. The Bill of Rights has protected our free speech for over
200 years. We do not need to begin eviscerating it now.
The Washington Post opposes this amendment. Common Cause opposes this
amendment. The distinguished Senator from Wisconsin, Mr. Feingold, and
others oppose this amendment. This amendment is simply a very bad idea.
I yield the remainder of my time to the Senator from Utah, Mr.
Bennett.
Mr. BENNETT. Mr. President, I congratulate the Senator from South
Carolina on his honesty in that he recognizes the proposals with
respect to campaign finance reform that have been on this floor are, in
fact, unconstitutional. But he seeks to solve the problem with a
constitutional amendment, which I think is best summarized in the
comment by the Senator from Washington, Mr. Gorton, who said this does
not amend the first amendment with respect to political speech, it
repeals it.
I don't want to vote in favor of something that could be considered
by as careful a scholar as the Senator from Washington as repealing
free speech for politicians. We have the same rights, I think, that
everyone else should have. For that reason, I ask my colleagues to vote
against this amendment.
Mr. HATCH. Mr. President, I move to table and ask for the yeas and
nays.
The PRESIDING OFFICER. Is there a sufficient second?
There appears to be a sufficient second.
Mr. LIEBERMAN. Mr. President, I rise today to explain my vote on
Senator Hollings' proposal to amend the Constitution to allow Congress
and the States to impose reasonable limits on contributions and
expenditures made to support or oppose candidates for elected office.
In this case, I believe that the high threshold I have established for
supporting a constitutional amendment--that it address a significant
threat to the Republic or some egregious wrong--has been met.
This amendment addresses an unfortunate fact whose truth has become
more and more apparent in the past several years: money and the never
ending chase for it are threatening the integrity of our political
system and jeopardizing the essence of our democracy. Although money
has always played a role in American politics, its impact became
overwhelming during the last few election cycles. Political fundraising
and spending during the 1996 campaign was 73 percent greater than
during the 1992 campaign, and there is no reason to believe we won't
break that record in 2000. We are all intimately familiar with the time
and resources we need to spend to raise that money, and with the
numerous questionable events and actions that were spurred by the money
chase during the last Presidential election. Most of those events and
actions, I have sadly concluded, were legal under our current campaign
finance laws. But that does not mean they were not wrong. I think they
were. By ensuring that we will be able to put a limit on the amount of
money spent in political campaigns, this constitutional amendment would
help restore a sense of integrity--and of sanity--to our campaign
finance system and to our democracy.
Much of the debate over this proposed amendment centers on what some
call its threat to the principle of free speech. That, of course, is a
principle we all hold dear. But I say, Mr. President, that free speech
is not what is at issue here. Free speech is about the inalienable
right all of us have to express our views without government
interference. It is about the vision the Framers of our Constitution
enshrined in that most important of documents--a vision that ensures
that we in Congress will never compromise our American birthright to
say things and offer opinions even when those opinions are unpopular or
discomforting. But that simply is not at issue here, Mr. President--
absolutely nothing in this amendment will do anything to diminish or
threaten any American's right to express his or her views about
candidates running for office or about any problem or issue in American
life.
What would be threatened by this proposed Constitutional amendment,
Mr. President, is something entirely different: the ever increasing and
disproportionate power those with money have over our political system.
As everyone in this chamber knows, the spiraling costs of running for
office require all of us to spend more and more time raising money and
more and more time with those who give it. We are all far too familiar
with events or meetings with elected officials attended only by those
who could afford to give $5,000 or $10,000 or even $100,000--sums of
money that are beyond the capacity of the overwhelming majority of
Americans to give. That, Mr. President, is threatening a principle all
of us hold just as dearly as the principle of free speech: the
principle of democracy. That sacred principle guides our Republic--it
promises that each person has one vote, and that each and every one of
us--rich or poor--has an equal right and an equal ability to influence
the workings of our government. As it stands now, Mr. President, it is
that sacred principle that is under attack and that sacred principle
that promises to remain under attack unless we do something to save it.
And that something, I submit, is campaign finance reform.
I, for one, believe that most of the campaign finance reform we need
can and must be done even without this Constitutional amendment. The
Supreme Court, after all, has made quite clear in its decisions that
even under its view of money as being equivalent to speech, the
Constitution still allows Congress to impose restrictions on the amount
that can be contributed to campaigns and parties. This, in my view,
means that we have no excuse not to act right now to stop the massive
soft money contributions that pose the biggest threat to our system. It
is important that we not use the First Amendment as a shield against
change because it is clearly constitutional to limit and regulate
contributions to political campaigns--including soft money.
What it appears we cannot do under the Supreme Court's rulings is
limit the amount of money we and others spend in the course of
campaigns unless we adopt convoluted legislation geared toward
complying with the Supreme Court's view that money is
[[Page S1796]]
speech. I think that the need for reform is so great that it is worth
accepting convoluted legislation, but I also think that we should act
now to vote for this amendment and so ensure that in the future we will
be able to properly regulate campaign spending, thereby controlling the
amount of money spent in American political campaigns.
Mr. President, nothing less than the future of our democracy is at
stake here. Unless we act to reform our campaign finance system, people
with money will continue to have disproportionate influence in our
system, people who are not even citizens of the United States will try
to use money to influence our government's decisions, the American
people will continue to lose faith in our government's institutions,
and the genius of our Republic--that it is our citizenship, not our
pocketbook, that gives each of us equal power to play a role in our
country's governance--that genius will be lost.
Mr. President, it is for that reason that I have concluded that this
is one of those rare constitutional amendments that is worth
supporting. Our current campaign finance system poses an egregious
threat to our Democracy. Big money donations, endless spending and the
proliferation of anonymously-funded and often inaccurate attack ads all
have had an extraordinarily corrosive and distorting affect on our
political system and on the citizenry's view of its role in our
Democracy's decisions. I frankly can think of few threats to the
Republic greater than one that throws into doubt the integrity and
well-functioning of our democratic decision-making process.
Mr. WELLSTONE. Mr. President, I rise today to explain my vote against
the Hollings amendment to S.J.Res. 14 which would have amended the
Constitution to authorize regulation of contributions to, and spending
by, Federal and State candidates.
I am a strong proponent of campaign finance reform. I would even go
so far as to say that I view the fight to bar private, interested money
from dominating our elections as the core battle that needs to be won
if Congress is going to turn its attention to enacting an agenda that
put working families before wealthy, entrenched special interests. The
campaign finance reform debate may be to the nineties what civil rights
was to the fifties and sixties. In fact, let me go a step further and
say the campaign finance reform may be the new civil rights watershed.
I do not believe that money equals speech, as some of my colleagues
have argued during the debate on the Hollings amendment and in previous
debates. The vote is undermined by the dollar. The vote may be equally
distributed, but dollars are not. As long as elections are privately
financed, those who can afford to give more will always have a leg up--
in supporting candidates, in running for office themselves, and in
gaining access and influence with those who get elected. We all know
this is the way it works. And the American people know it, too.
I laud my colleague's intentions in offering this amendment. No one
has pushed harder on campaign finance reform than the junior Senator
from South Carolina. But while I have supported the Hollings amendment
in the past, I voted against it today. There is now significant
momentum at both the federal and state levels to enact campaign finance
reform--including public financing of elections, which I believe is
critical--in a manner that will pass constitutional muster. These
efforts, with hard work and determination, have the best chance of
resulting in meaningful, lasting improvements in our election system,
and therefore in our democracy.
Amending the Constitution is a long and arduous process. It is rarely
successful. I simply do not believe that it is now the best mechanism
for achieving reform.
The PRESIDING OFFICER. The question is on the motion to table
amendment No. 2890. The yeas and nays have been ordered. The clerk will
call the roll.
The legislative clerk called the roll.
The result was announced--yeas 67, nays 33, as follows:
[Rollcall Vote No. 46 Leg.]
YEAS--67
Abraham
Akaka
Allard
Ashcroft
Bennett
Bond
Brownback
Bunning
Burns
Campbell
Chafee, L.
Cochran
Collins
Conrad
Coverdell
Craig
Crapo
DeWine
Domenici
Dorgan
Edwards
Enzi
Feingold
Fitzgerald
Frist
Gorton
Gramm
Grams
Grassley
Gregg
Hagel
Hatch
Helms
Hutchinson
Hutchison
Inhofe
Jeffords
Kennedy
Kerrey
Kohl
Kyl
Lautenberg
Leahy
Lott
Lugar
Mack
McConnell
Moynihan
Murkowski
Murray
Nickles
Roberts
Santorum
Schumer
Sessions
Shelby
Smith (NH)
Smith (OR)
Snowe
Stevens
Thomas
Thompson
Thurmond
Torricelli
Voinovich
Warner
Wellstone
NAYS--33
Baucus
Bayh
Biden
Bingaman
Boxer
Breaux
Bryan
Byrd
Cleland
Daschle
Dodd
Durbin
Feinstein
Graham
Harkin
Hollings
Inouye
Johnson
Kerry
Landrieu
Levin
Lieberman
Lincoln
McCain
Mikulski
Reed
Reid
Robb
Rockefeller
Roth
Sarbanes
Specter
Wyden
The motion was agreed to.
The PRESIDING OFFICER (Mr. Crapo). The Senator from Kentucky.
Mr. McCONNELL. Mr. President, I want to take a moment to thank
members of my staff for their hard work on the last two amendments: Tam
Somerville, staff director of the Rules Committee; Hunter Bates,
general counsel, who works with him; Andrew Siff, Denise Grant, and
Nathan Oman who have been deeply involved in the last two amendments. I
appreciate the great assistance from Senator Bennett of Utah.
This is a red letter day for the first amendment. The Hollings
amendment had only 33 votes in favor of the amendment. As we all know,
it takes 67 votes to approve an amendment to the Constitution. There
were 67 votes against this amendment to the Constitution. It is clear
that the first amendment is secure for another day, and I thank my
colleagues who made that possible.
Mr. President, I yield the floor.
The PRESIDING OFFICER. The Senator from Alabama.
Mr. SHELBY. Mr. President, I ask unanimous consent that I may proceed
in morning business for 10 minutes.
Mr. LEAHY. Reserving the right to object, Mr. President.
The PRESIDING OFFICER. The Senator from Vermont.
Mr. LEAHY. And I shall not. What is the parliamentary situation right
now?
The PRESIDING OFFICER. The Senate is currently considering S.J. Res.
14.
Mr. SHELBY. I ask it be set aside and that I may proceed in morning
business for 10 minutes.
Mr. LEAHY. Again reserving the right to object, and I will not
object, will there be any objection then to, at the conclusion of the
Senator's morning business speech, we go to the distinguished Senator
from Wisconsin who has been waiting to speak on the amendment which is
the pending business?
Mr. SHELBY. Absolutely.
Mr. WELLSTONE. Mr. President, I ask my colleague from Vermont, I am
waiting to go to another committee, may I follow the Senator from
Wisconsin?
Mr. HATCH. Reserving the right to object, is the Senator from
Wisconsin just going to speak or is he intending to offer an amendment?
Mr. FEINGOLD. My intent is simply to speak.
Mr. HATCH. I have no objection.
The PRESIDING OFFICER. Without objection, it is so ordered. The order
will be the Senator from Alabama for 10 minutes, the Senator from
Wisconsin, followed by the Senator from Minnesota.
Mr. SHELBY. Mr. President, I thank the Senator from Vermont for his
understanding in helping us work this out, and also the Senator from
Utah, Mr. Hatch, for his indulgence.
(The remarks of Mr. Shelby pertaining to the introduction of S. 2304
are located in today's Record under ``Statements on Introduced Bills
and Joint Resolutions.'')
The PRESIDING OFFICER. The Senator from Wisconsin is recognized.
Mr. FEINGOLD. Mr. President, we in the Senate speak today to honor
the American flag, the symbol of our Nation. Both those who favor and
those who oppose the amendment to the Constitution now pending do so.
We all, of course, seek to honor the flag.
[[Page S1797]]
I dare say that there is not a Senator among us who does not feel
goose bumps when first looking up at the dome of the Capitol and seeing
our flag. I would wager that no U.S. Senator fails to get a lump in the
throat when standing to the strains of the national anthem. And I am
confident that there is none among us whose eyes do not sometimes mist
over when watching those seven bars of red and six of white ripple in
the breeze and tug at the heart.
But, my colleagues, honoring the flag demands that we here fully and
fairly debate this amendment. Amending the Constitution is an
undertaking of the greatest import. For the Congress to propose an
amendment to the Constitution of the United States on the basis of
anything less than a full--even an exhaustive--debate would show less
than the full respect due to the flag and the Constitution that it
represents.
Honor demands that we view any effort to amend the Constitution with
trepidation. Since the adoption of the Bill of Rights in 1791, America
has amended its Constitution on only 17 occasions. Our Constitution has
served this Nation well and withstood the test of time, in large part
because Congress has resisted the urge to respond to every adversity,
real or imagined, with a constitutional amendment. We should exercise
restraint in amending this great charter.
We honor the American flag because we love ``the Republic for which
it stands.'' We honor the banner because we cherish ``one Nation . . .
with liberty and justice for all.'' We honor the flag because it
represents a Constitution, that solemn commitment; and a Bill of
Rights, that charter of liberty; unrivaled in the history of humankind.
Honor demands that we seek to protect not just the flag, but the
principles in that Constitution and that Bill of Rights--principles of
freedom, opportunity, and liberty. I believe these principles, as much
as our Nation's cherished symbols, frame our history and define our
Nation. As dearly as we hold the flag, we must hold these principles at
least as dearly.
Yes, there have been some handfuls of sociopaths who burn our flag to
thrust a firebrand in our eye. The question before us today is: Will
the misguided actions of these few misfits cause us to curtail our
fundamental principles of freedom?
We would only grant them victory if we allow their despicable acts to
goad us into desecrating the greatest protection of individual rights
in human history--our Bill of Rights. As Senator Bob Kerrey has said:
Patriotism calls upon us to be brave enough to endure and
withstand such an act--to tolerate the intolerable.
Let us show our strength, by not rising to the bait. Let us show our
bravery, by not giving the flag burners what they want. Let us show our
faith in the strength of this country and its institutions, by not
lashing out in anger at those who would defile our flag.
The costs of this amendment would exact a far too great a price to
pay. This amendment, if adopted, would criminalize the very acts that
the Supreme Court has held to be protected by the first amendment. This
amendment would clearly and intentionally erode the Bill of Rights.
This amendment would have an unprecedented, direct, and adverse
effect on the freedoms embodies in the Bill of Rights. For the first
time in our history, this amendment would employ the Constitution and
the Bill of Rights--both premised on the idea of limiting the
Government--to limit individual rights, and, in particular, the freedom
of speech.
Our former colleague, Senator John Glenn, said it very well last
year. He said:
Our revered symbol stands for freedom, but is not freedom
itself. We must not let those who revile our way of life
trick us into diminishing our great gift or even take a
chance of diminishing our freedoms.
I am very proud to attempt to carry on John Glenn's fight against
this ill-advised amendment. The Bill of Rights is too fundamental to
our history, too important to our people, and too necessary to our
future, for us to do anything else.
Honoring the flag demands that we also question the vagueness of the
language of the amendment. Our Constitution Subcommittee heard
testimony that the term ``flag of the United States,'' as used in this
amendment, is ``problematic'' and so ``riddled with ambiguity'' as to
``war with the due process norm that the law should warn before it
strikes.'' Even supporters of the amendment, including former Attorney
General William Barr, have acknowledged that the term ``flag'' could
mean any of a number of different things. No one can assure us as to
what the term ``flag'' will mean other than to suggest it will be up to
the governments of particular jurisdictions.
How would the amendment affect flags on T-shirts? How would the
amendment affect flags on scarfs? In the memorable example given by the
late and revered Senator John Chafee last year, How would the amendment
affect a handmade flag rug?
Now the amendment, of course, does not make anything illegal by
itself. It simply gives the Congress the power to prohibit the physical
desecration of the flag. But the question is still a powerful one. We
must still ask: What kind of statute would this amendment insulate from
constitutional attack?
Would this amendment permit Congress to enact a statute that would
criminalize wearing a T-shirt with a flag on it? Or could Congress
criminalize tearing such a T-shirt?
Would the amendment permit Congress to criminalize wearing a scarf
with a flag on it? Or could Congress criminalize spitting on such a
scarf?
Would this amendment permit Congress to criminalize making a rug with
a flag on it? Or could Congress criminalize stepping on such a rug?
More generally, would the amendment allow Congress to enact statutes
that permit the prosecution of people based on the views they express
when they defile the flag? Consider two cases: In case one, a person
smears blood on a flag while screaming protest of U.S. involvement in a
foreign war. In case two, another person drips blood on a flag after
suffering an injury at a summertime football game. After adoption of
this amendment, would it be constitutional to prosecute the one who
spoke and not prosecute the other, who did the same thing without
speaking?
Here's another example. My colleagues may remember the very exciting
victory of the U.S. Women's Soccer team in the Women's World Cup last
year. A thrilling moment for sure, and tens of thousands of very
patriotic Americans cheered the heroic deeds of the women who
represented our country.
That evening, another soccer game was played here in Washington, DC,
involving this city's major league soccer team, D.C. United. Many of
the same fans who cheered the U.S. women that afternoon turned out to
watch the D.C. United soccer team. Some of those fans, seeking to play
for the TV cameras and their fellow fans brought a prop, which they
unfurled during the game. Here is a picture of it. As you can see, it
is an actual flag. It is not a representation or a picture. It is an
actual flag of the United States with the words ``Thanks Girls!''
written on it with some type of chalk or marker.
Obviously the people who defaced this flag intended no disrespect to
the United States or the flag. They were excited soccer fans, and
probably very patriotic Americans. I wonder if the sponsors of this
amendment can be sure of the answer to this question: Would the statute
that Congress passes to prohibit flag desecration after this
constitutional amendment is ratified allow for these people to be
prosecuted? I think it is a fair question.
I think most of us would hope not. But how would the police or the
prosecutors make that decision? If they look at the message and the
beliefs of the people who have written on the flag, isn't that exactly
the kind of content discrimination that the first amendment is designed
to prohibit? Do we really want the government examining the motives of
those who deface the flag to see if they are patriotic or well meaning
enough to avoid discrimination?
I don't think so. I think that is what the first amendment is all
about: to protect against Government inquiry into a citizen's political
beliefs. On the other hand, if we have a completely content-neutral
statute and enforcement that does not look at the motives of those who
deface the flag, we might
[[Page S1798]]
end up prosecuting the excited and patriotic soccer fans shown in this
poster. Obviously, I don't think we want that either.
So this example really shows the difficulties with outlawing
desecration of the flag. People in this country use the flag to express
joy and patriotism as well as opposition to the Government. And the
traditions of our country, our respect for free political expression,
demands that we not criminalize conduct that we would otherwise accept
if it were motivated by patriotism instead of political dissent.
Some people call these kinds of examples ``wacky hypotheticals.'' But
we do not have reliable answers to these questions. And when you are
talking about amending the Constitution, you have a duty to consider
and address hypotheticals. After all, it is not easy to correct a
mistaken Constitution. We cannot just, by unanimous consent, pass a
technical corrections bill to fix an unintended consequence of a
constitutional amendment.
Let me share another case that I witnessed not far from this Senate
Chamber. I was eating dinner at the restaurant called ``America'' over
in Union Station. We noticed that the menu is colored like a giant
American flag. We talked about having to be careful not to spill
anything on it and how damaging our menu might be a crime under this
amendment. Then we forgot about it and returned to our meal. But just a
half hour later, there was a big commotion in the corner of the
restaurant, and we turned to see a woman frantically trying to put out
a fire that had started when her oversized American flag menu had
gotten too close to the small candles on the table.
Now I hope that that woman was not engaged in an angry argument over
the Government. But I suppose that is something that the police might
have to investigate if this amendment and a statute that it authorized
became law. Don't the police have more important things to investigate
than whether the burning of a menu might violate the Constitution?
Some have been misled into believing that one can pull a flag off a
building, burn it, and be protected by the Constitution. That is simply
not true. There are many laws in effect today that prohibit theft, the
destruction of federal property, or disturbing the peace. These can and
should be used to address the majority of flag burning incidents.
Honoring the flag demands that we listen, as many on both sides of
this debate have, to the true American war heroes who have testified to
us on this issue. It was particularly inspiring to welcome John Glenn
back to the Senate last year. The perspectives of the witnesses before
the Judiciary Committee last year were of particular interest to me
because they represented the diversity of views on this amendment by
the American people, by veterans, and by war heroes. Those who fought
and sacrificed for our country and its flag deserve our utmost respect
when it comes to this flag amendment. They know well the costs of
freedom and democracy, as well as the joys. Some would portray the
views of veterans as monolithic, but, as our hearings showed quite
plainly: They are not.
Those many veterans who oppose this amendment do so with conviction
and power and strength. They know that no one can question their
patriotism or love of country. Listen to the words of Professor Gary
May of the University of Southern Indiana, who lost both his legs in
the Vietnam war, and who testified before the Judiciary Committee last
year. Professor May said:
Freedom is what makes the United States of America strong
and great, and freedom, including the right to dissent, is
what has kept our democracy going for more than 200 years.
And it is freedom that will continue to keep it strong for my
children and the children of all the people like my father,
late father in law, grandfather, brother, me, and others like
us who served honorably and proudly for freedom.
The pride and honor we feel is not in the flag per se. It's
in the principles that it stands for and the people who have
defended them. My pride and admiration is in our country, its
people and its fundamental principles. I am grateful for the
many heroes of our country--and especially those in my
family. All the sacrifices of those who went before me would
be for naught, if an amendment were added to the Constitution
that cut back on our first amendment rights for the first
time in the history of our great Nation.
The late Senator John Chafee, who as all will recall also served
bravely at Guadalcanal and in the Korean war, last year said simply:
``[W]e cannot mandate respect and pride in the flag. In fact, . . .
taking steps to require citizens to respect the flag, sullies its
significance and symbolism.'' Senator Chafee's words still bring a
brisk, cool wind of caution. What kind of symbol of freedom and liberty
will our flag be if it has to be protected from protesters by a
constitutional amendment?
My friend and constituent Keith Kruel, a World War II veteran and
past National Commander of the American Legion, addressed this point
quite well in testimony he submitted for the Judiciary Committee last
year. He said:
Freely displayed, our flag can be protected only by us, the
people. Each citizen can gaze upon it, and it can mean what
our heartfelt patriotic beliefs tell us individually.
Government ``protection'' of a Nation's banner only invites
scorn upon it. A patriot cannot be created by legislation.
Patriotism must be nurtured in the family and educational
process. It must come from the heartfelt emotion of true
beliefs, credos and tenets.
Senator Bob Kerrey, who is in the Chamber at this time, the only
Congressional Medal of Honor winner to serve in the Senate in this
century, spoke directly to the point when he said: ``Real patriotism
cannot be coerced. It must be a voluntary, unselfish, brave act to
sacrifice for others.'' I yield the floor.
The PRESIDING OFFICER. The Senator from Minnesota.
Mr. WELLSTONE. Mr. President, I thank Senator Feingold for his
statement. I will be relatively brief.
I ask unanimous consent that if other Senators aren't here, Senator
Kennedy be allowed to speak after myself.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. WELLSTONE. Mr. President, I come to the floor not the first time
to announce my opposition to this proposed constitutional amendment,
giving power to the Congress and the States to prohibit physical
desecration of the flag of the United States.
I wish to speak about this a little bit more personally because I
think all of us come to our point based upon real-life experience. My
father was a Jewish immigrant born in the Ukraine and who fled
persecution from Russia. My mother's family came from the Ukraine as
well. As a first generation American on my father's side, I revere the
flag and I am fiercely patriotic. I love to see the flag flying over
the Capitol. I love to recite the Pledge of Allegiance to the flag. I
think it is a beautiful, powerful symbol of American democracy.
What I learned from my parents more than anything else, and from my
own family experience as the son of a Jewish immigrant who fled czarist
Russia, is that my father came to the United States because of the
freedom--the freedom we have as American citizens to express our views
openly, without fear of punishment.
I am deeply impressed with the sincerity of those who, including
Senator Hatch, favor this constitutional amendment. I am impressed with
the sacrifice and patriotism of those veterans who support this
constitutional amendment. I think in the veterans community there
certainly are differences of opinion. I do not question their sincerity
or commitment at all.
It is with a great deal of respect for those with whom I disagree,
including some members of the American Legion, that I oppose this
amendment. I oppose it because, to me, it is ultimately the freedom
that matters the most. To me, the soul of the flag, as opposed to the
physical part of the flag, is the freedom that it stands for, the
freedom that my parents talked about with me, the freedom that all of
us have to speak up. I do not want to amend the Bill of Rights for the
first time in its 209 years of existence. I don't want to amend the
first amendment, the founding principle of freedom of speech from which
all other freedoms follow.
I want to very briefly read from some of what our Justices have had
to say because I think they say it with more eloquence than I could. In
Texas v. Johnson, an opinion written by Justice Brennan, joined by
Justices Marshall, Blackmun, Scalia, and Kennedy--and I note this is a
diverse group of judges we are talking about--they said:
[[Page S1799]]
If there is a bedrock principle underlying the First
Amendment, it is that the government may not prohibit the
expression of an idea simply because society finds the idea
itself offensive or disagreeable. . . . The way to preserve
the flag's special role is not to punish those who feel
differently about these matters. It is to persuade them that
they are wrong. . . . We do not consecrate the flag by
punishing its desecration, for in doing so we dilute the
freedom that this cherished emblem represents.
If freedom of speech means anything, I think it means protecting all
speech, even that speech which outrages us. I have no use for those who
desecrate the flag. Speech that enjoys widespread support doesn't need
any protection. As the great Justice Oliver Wendell Holmes pointed out,
freedom of speech is not needed for popular speech, but instead it is
for the thought that we hate, the expression threatened with censorship
or punishment.
I quote from General Powell's letter. He has been quoted several
times, but it is too eloquent to pass up:
We are rightfully outraged when anyone attacks or
desecrates our flag. Few Americans do such things and when
they do they are subject to the rightful condemnation of
their fellow citizens. They may be destroying a piece of
cloth, but they do no damage to our system of freedom which
tolerates such desecration. . . . I would not amend that
great shield of democracy to hammer a few miscreants. The
flag will still be flying proudly long after they have slunk
away.
Our late and dear friend and colleague, Senator Chafee, who was a
highly decorated soldier in two wars wrote:
We cannot mandate respect and pride in the flag. In fact,
in my view, taking steps to require citizens to respect the
flag sullies its significance and its symbolism.
Finally, my colleague from Wisconsin mentioned Senator Glenn, another
real American hero. Senator Glenn said:
Without a doubt, the most important of those values, rights
and principles is individual liberty: the liberty to worship,
to think, to express ourselves freely, openly and completely,
no matter how out of step these views may be with the
opinions of the majority.
That is the first part of my presentation--just to say that I love
this flag. I think when you have the family background I have, you are
fiercely patriotic. I love this country. My mother and father are no
longer alive, but I still think they know I am a Senator. They weren't
alive when I was elected. It would mean everything in the world to
them. But, to me, the real soul of the flag, going beyond the physical
presence of the flag, is the freedom that the flag stands for. I don't
think we should give up on that freedom. I don't think we should amend
the first amendment to the Constitution. I think it would be a profound
mistake. I say that out of respect for those who disagree with me in
the Senate. I say it out of respect for those in the veterans community
who disagree with me.
Mr. KENNEDY. Mr. President, once again we are debating whether to
amend the Constitution to prohibit flag burning. Flag burning is a vile
and contemptuous act, but it is also a form of expression protected by
the first amendment. Surely we are not so insecure in our commitment to
freedom of speech and the first amendment that we are willing to start
carving loopholes now in that majestic language.
I strongly oppose the constitutional amendment we are debating today.
The first amendment is one of the great pillars of our freedom and
democracy. It has never been amended in over 200 years of our history,
and now is no time to start. There is not even a plausible factual
basis for carving a hole in the heart of the first amendment. There is
no significant problem.
Flag burning is exceedingly rare. Published reports indicate that
fewer than 10 flag burning incidents have occurred a year since the
Supreme Court's decision in Texas v. Johnson in 1989 on the first
amendment. Over the last 5 years, there was only one such incident in
Massachusetts. This is hardly the kind of serious and widespread
problem in American life that warrants an assault on the first
amendment. Surely there is no clear and present danger that warrants
such a change. This proposal fails the reality test.
The Constitution is not a billboard on which to plaster amendments as
if they were bumper sticker slogans. In this Congress alone, over a
dozen constitutional amendments have been introduced. With every new
proposed amendment, we undermine and trivialize the Constitution and
threaten to weaken its enduring strength.
I remember listening to a speech given by Justice Douglas, one of the
great Supreme Court Justices of this century. Students asked him: What
was the most important export of the United States? He said, without
hesitation: The first amendment because it is the defining amendment
for the preservation of free speech as the basic and fundamental right
in shaping our Nation.
Clearly, it would be a mistake of historic proportions for this
Congress to make the first alteration to the first amendment in more
than two centuries. The first amendment breathes light into the very
concept of our democracy. It protects the freedoms of all Americans,
including the fundamental freedom of citizens to criticize their
government and the country itself, including the flag.
As the Supreme Court explained in Texas v. Johnson, it is a bedrock
principle underlying the first amendment that the Government may not
prohibit the expression of an idea simply because the society finds the
idea itself offensive and disagreeable.
No one in the Senate condones the act of flag burning. We all condemn
it. The flag is a symbol that embodies all that is great and good about
America. It symbolizes our patriotism, our achievements, and, above
all, our respect for our freedoms and our democracy. We do not honor
the flag by dishonoring the first amendment.
Gen. Colin Powell agrees with our opposition to this proposed
amendment. He has told us in reaching this decision he was inspired by
the words of James Warner, a former marine aviator, who was a prisoner
in North Vietnam between 1967 and 1973. As James Warner wrote in 1989:
It hurts to see the flag being burned, but I part company with those
who want to punish the flag burners. In one interrogation, I was shown
a photograph of American protesters burning a flag. There, the officer
said: People in your country protest against your cause. That proves
you are wrong. No, I said, that proves that I am right. In my country
we are not afraid of freedom, even if it means that people disagree
with us.
The officer was on his feet in an instant, his face purple with rage.
He smashed his fist onto the table and screamed at me to shut up. While
he was ranting, I was astonished to see pain, compounded by fear, in
his eyes. I have never forgotten that look, nor have I forgotten the
satisfaction I felt in using his tool, the picture of the burning flag,
against him.
That says it all. We respect the flag the most, we protect it the
best, and the flag itself flies the highest when we honor the freedom
for which it stands.
I urge my colleagues to vote against this misguided constitutional
amendment.
I yield the floor.
The PRESIDING OFFICER. The Senator from Utah.
Mr. HATCH. Mr. President, at least the Senator is consistent because
he opposes both the McConnell amendment and the flag amendment.
Having made that point, of the 36 Senators who voted for the
McConnell ``statutory fix,'' shall we call the proposal, 30 are
opponents of the flag-protection amendment. These 30 Senators
apparently believe that some flag desecration should be prohibited.
Voting for McConnell makes their first amendment arguments a mockery.
At least the distinguished Senator from Massachusetts is consistent,
because the McConnell amendment says, one, that flag desecration on
Federal land with a stolen flag should be prohibited; two, damaging a
flag belonging to the United States will be prohibited; or three,
desecrating a flag intending to promote violence should be prohibited.
It reminds me of 1989 when a high percentage of Senators in this
body, who claim to be against the constitutional amendment to prohibit
desecration of our beloved flag, voted for the statutory anti-flag-
desecration amendment.
If first amendment rights hold with regard to this constitutional
amendment, that it would violate first amendment rights, then why
wouldn't it have violated first amendment rights with regard to any
statute that would prohibit desecration?
[[Page S1800]]
I think anyone can see the game that is going on; that is, that some
of the folks wouldn't vote to protect the flag no matter what happens
because they know the flag desecration amendment or a statutory
amendment is not going to protect our flag because it will be stricken
down as unconstitutional. I predicted it in both cases where the
Supreme Court has stricken it down.
If one agrees that flag desecration is wrong, why limit it to these
circumstances provided in the McConnell amendment? Why should it be
legal to burn a flag in front of a crowd who loves flag desecration, or
on television where people are at a safe distance, yet make it illegal
to burn a flag in front of people who would be upset by that act? Why
make it illegal to burn a Post Office flag but not a flag belonging to
a hospital across the street? Why make it illegal for a lone camper to
burn a flag in a campfire at a Yellowstone park, when it is legal to
burn a flag before hundreds of children at a public school under
current law?
To anyone interested in protecting the flag, these distinctions make
no sense. That is what is amazing to me. There is such inconsistency. I
personally believe that it is the elitist position that calls the 80
percent of Americans who believe we should sustain the dignity of our
flag, of our national symbol, that we are somehow Neanderthals, the 80
percent of the people in this country who want to protect our national
symbol from acts of physical desecration.
The funny thing about it, this amendment does not even do that. All
this amendment does is restore the power to the Congress of the United
States to be able to pass a statute if the Congress so chooses,
something that we have to do by constitutional amendment if we want to
be coequal with the judicial branch of Government.
Opponents of the constitutional amendment argue that this would be an
unprecedented infringement on the freedom of speech, which does not
satisfy James Madison's counsel that amendments of the Constitution
should be limited to ``certain great and extraordinary circumstances.''
Setting aside the fact that flag desecration is conduct, not speech,
and that our freedom of speech is not absolute, these critics never
fully address the fact that our Founding Fathers, James Madison in
particular, saw protection of the flag as falling outside the scope of
the first amendment and was more a matter of protecting national
sovereignty. The original intent of the Nation's founders indicates the
importance of protecting the flag as an symbol of American sovereignty.
Madison and Jefferson consistently emphasized the legal significance of
infractions on the physical integrity of the flag.
For example, one of Madison's earliest pronouncements concerned an
incident in October 1800 when an Algerian ship forced a U.S. man of
war--the George Washington--to haul down its flag and replace it with
the flag from Algiers. As Secretary of State under Thomas Jefferson,
Madison pronounced such a situation as a matter of international law, a
dire invasion of sovereignty which ``on a fit occasion'' might be
``revised.''
Madison continued his defense of the integrity of the flag when he
pronounced an active flag defacement in the streets of an American city
to be a violation of law. On June 22, 1807, when a British ship fired
upon and ordered the lowering of an American frigate's flag, Madison
told the British Ambassador ``that the attack . . . was a detached,
flagrant insult to the flag and sovereignty of the United States.''
Madison believed that ``the indignity offered to the sovereignty and
flag of the Nation demands. . .an honorable reparation.'' Madison's
statements suggests his belief that protecting the physical integrity
of the flag ensured the protections of the Nation's sovereignty.
This is the author of the Constitution. We have these people
inconsistently voting for statutes--twice in the last 11 years--that
are unconstitutional, that would, I suppose if you take their arguments
on the floor, denigrate the first amendment to the Constitution. If
this constitutional amendment is denigrating it, why isn't the statute
they voted for denigrating it as well?
Madison did not conclude, as some defenders of the right to deface
the flag contend, that the first amendment protected the rights of
Americans to tear down a flag or that defacing the flag was a form of
expression protected by the first amendment. On the contrary. It would
appear that Madison had an intimate familiarity with the significance
of protecting the physical integrity of the flag, especially as such
protection related to the first amendment, which he helped draft and
move through the First Congress. He knew there had been no intent to
withdraw the traditional physical protection from the flag.
Madison and Jefferson intended for the Government to be able to
protect the flag consistent with the Bill of Rights. This was based on
their belief that obtaining sovereign treatment was distinct from an
interest in protecting against the suppression of expression. Madison
and Jefferson consistently demonstrated that they sought commerce,
citizenship, and neutrality rights through the protection of the flag.
They did not seek to suppress the expression of alternative ``ideas,''
``messages,'' ``views,'' or ``meanings.''
Although it is commonly asserted that Congress has never sent an
amendment to the States to amend the Bill of Rights, this assertion is
absolutely false. Even if you assume this amendment would lead to a
violation of first amendment rights, it is absolutely false to think
the Congress has never sent an amendment to the States to amend the
Bill of Rights. Yet the Bill of Rights has been amended in some form on
several occasions. For example, the 13th amendment amended the 5th
amendment as interpreted in Dred Scott v. Sanford, to provide that the
former slaves were not property subject to the due process clause, but
were free men and women.
Further, the 14th amendment was interpreted in Bolling versus Sharpe,
to have effectively amended the due process clause of the 5th amendment
to apply equal protection principles to the Federal Government.
Moreover, in Engel versus Vitale, the Supreme Court circumscribed the
1st amendment rights of American school children by holding that the
establishment clause precluded prayer in the public schools.
Each of these constitutional changes substantially modified the
rights and correlative duties of affected parties from those originally
envisioned by the Framers of the Bill of Rights. The change effected by
the Engel versus Vitale decision did not expand rights, but restricted
them by taking away the right of children to pray at school.
Further, there have always been numerous limits on free speech. We
limit libelous and defamatory speech. We limit speech that constitutes
``fighting words.'' We limit speech that consists of falsely shouting
``fire'' in a crowded theater. We limit speech that is obscene. We
limit speech that jeopardizes national security. And each of these
limits balances an important governmental interest in protecting
against an individual's right to engage in radical or dangerous speech.
Thus, the Bill of Rights has been amended numerous times and has
consistently been interpreted to include limits on speech. The long
legal tradition of accepting regulation of physically destructive
conduct toward the flag is consistent with these limits that balance
society's interest in promoting respect for the nation with an
individual's interest in sending a particular message by means of
desecrating our beloved flag. The proposed amendment would effect a
much smaller change than the other amendments listed and a much
narrower limit on speech than the other limits mentioned. The amendment
would simply restore the traditional right of the people to protect the
physical integrity of their flag, something that existed 200 years
before the Supreme Court struck it down. Protestors would still be free
to speak their opinions about the flag at a rally, write their opinions
about the flag to their newspaper, and vote their opinions at the
ballot box.
Most of the American people, men and women, black, brown, and white,
support the flag protection amendment and 49 State legislatures have
asked for the flag protection amendment. Accordingly, I believe we
should send the flag protection amendment to the States for
ratification.
The argument that we have never amended the Bill of Rights or limited
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speech is absurd; it is false, and, in any event, the flag protection
amendment would change only the results of a few recent court decisions
to restore the true meaning of the Bill of Rights as ratified by our
forefathers.
This proposed amendment recognizes and ratifies our Founding Fathers'
view--and the constitutional law that existed for nearly 200 years--
that the American flag is an important and unique incident or symbol of
our national sovereignty. As Americans, we display the flag in order to
signify national ownership and protection. The Founding Fathers made
clear that the flag, and its physical requirements, related to the
existence and sovereignty of the United States and that desecration of
the flag were matters of national concern that warranted government
action.
This same sovereignty interest does not exist for our national
monuments or our other symbols. While they are important to us all, the
flag is unique. It is flown over our ships and national buildings. We
took the flag to, and planted it for eternity, on the Moon. We carry it
into battle. We salute it and pledge allegiance to it. Men and women
have died for it and have been tortured for their fidelity to it.
Senator McCain, in appearing before our committee, told of one of the
experiences he had when he was in the Hanoi prison with others of our
men. He said there was a young man who literally could not afford
shoes. He had no shoes until he was 13 years of age. He was raised in
poverty. But when he joined the military, he stood out as a really fine
human being, and ultimately he went to officer's candidate school.
Flying over Vietnam, he was shot down. When he arrived in the Hanoi
prison, if I recall it correctly, he took a bamboo needle and he
knitted together little bits of cloth to make an American flag, and he
put it inside his shirt. Every night, he would bring out that flag and
put it on the wall, and they would all salute and pledge allegiance to
it. It was one of the things that kept them from going insane.
One day his captors found him with that flag and took him outside and
beat him within an inch of his life. Of course, they took his flag from
him. Then they tossed his broken and bleeding body inside the compound
which had a concrete slab in the middle. Senator McCain may tell this
story because he can tell it better than I can having been there. I
think it is worthwhile to retell it.
Senator McCain said they picked him up and cleaned him up as best
they could in those very tragic circumstances. He was all black and
blue with his eyes shut from having been beaten. They had incandescent
light bulbs on all day long, every day, and all night long, every
night. As they all went to sleep, suddenly Senator McCain looked up and
here was this young military man sitting there with another bamboo
needle getting little bits of cloth to make another American flag.
To be honest with you, that flag meant an awful lot to those people
who were under those very terrible circumstances. It means a lot to me.
Opponents of this proposed constitutional amendment argue this would
be an unprecedented infringement on the freedom of speech which does
not satisfy James Madison's counsel that amendments to the Constitution
should be limited to ``certain great and extraordinary circumstances.''
Setting aside the fact that flag desecration is conduct not speech
and that our freedom of speech is not absolute, what these critics
never fully address is the fact that our Founding Fathers, James
Madison in particular, saw protection of the flag as falling outside
the scope of the first amendment and was more a matter of protecting
national sovereignty. The original intent of the Nation's founders
indicates the importance of protecting the flag as an incident of
American sovereignty. Madison and others did that.
We took this flag, as I said, and planted it for eternity on the
Moon. We carry it into battle. We salute it and pledge allegiance to
it. Men and women have died for it and have been tortured for their
fidelity to it. As Americans we recognize and believe that the flag is
our unique symbol of unity and sovereignty. As Madison noted, the flag
is a unique incident which, when desecrated, ``demands an honorable
reparation.''
That was how we viewed it--as a people, as a nation--until 1989 when
the Court handed down its 5-4 decision in the Johnson case. Are we
really going to stand here on the floor of the Senate and pretend that
the law never was as it was? Does anyone here believe that two narrow
Supreme Court decisions should settle whether we as a nation should and
can safeguard our symbol of sovereignty?
There are opponents to S.J. Res. 14 who argue that our flag--this
incident of sovereignty--is not important enough to amend the
Constitution; that amending the Constitution requires a ``great and
extraordinary occasion.'' Tell that to the young man in Vietnam. For
reasons I have stated, the Supreme Court's decisions in the Johnson and
Eichman cases--decisions which overturned centuries of law and
practice--more than meets Senator Leahy's test. Senator Kerrey's test,
and others. It certainly meets it more than the 27th amendment which
dealt with pay raises for members of Congress or the 16th amendment
which gave Congress the power to impose an income tax. I can understand
why some in Congress would view the 16th amendment as one of Congress'
finest moments, not that I ever have. In fact, my State of Utah was one
of only three States to reject the 16th amendment.
The flag amendment presents this Congress with an opportunity to do
something great and extraordinary. It is anything but an abdication of
responsibility. Indeed, one could argue that, failure to vote for this
amendment is an abdication of our responsibility and that restoring the
power of Congress the power to prohibit acts of desecration against our
symbol of national sovereignty would be a great and extraordinary
occasion.
Mr. DORGAN. Ten years ago the U.S. Supreme Court in a 5-4 decision
struck down a Texas flag protection statute on the grounds that burning
an American flag was ``speech'' and therefore protected under the First
Amendment of the Constitution. I disagreed with the Court's decision
then and I still do. I don't believe that the act of desecrating a flag
is an act of speech. I believe that our flag, as our national symbol,
can and should be protected by law.
In the intervening years since the Supreme Court decision I have
twice supported federal legislation that would make flag desecration
illegal, and on two occasions I voted against amendments to the
Constitution to do the same. I voted that way because, while I believe
that flag desecration is despicable conduct that should be prohibited
by law, I also believe that amending our Constitution is a step that
should be taken only rarely and then only as a last resort.
In the past year I have once again reviewed in detail nearly all of
the legal opinions and written materials published by Constitutional
scholars and courts on all sides of this issue. I pledged to the
supporters of the Constitutional amendment that I would re-evaluate
whether a Constitutional amendment is necessary to resolve this issue.
From my review I have concluded that there remains a way to protect
our flag without having to alter the Constitution of the United States.
I joined Senators Bennett, McConnell and Conrad today to introduce
legislation that I believe accomplishes that goal.
The bill we offered today protects the flag but does so without
altering the Constitution and a number of respected Constitutional
scholars tell us they believe this type of statute will be upheld by
the U.S. Supreme Court. This statute protects the flag by criminalizing
flag desecration when the purpose is, and the person doing it knows, it
is likely to lead to violence.
Supporters of a Constitutional amendment are disappointed I know by
my decision to support a statutory remedy to protect the flag rather
than support an amendment to the U.S. Constitution. I know they are
impatient to correct a decision by the Supreme Court that they and I
believe was wrong. I have wrestled with this issue for so long and I
wish I were not, with my decision, disappointing those, including many
of my friends, who passionately believe that we must amend the
Constitution to protect the flag.
[[Page S1802]]
But in the end I know that our country will be better served
reserving our attempts to alter the Constitution only for those things
that are ``extraordinary occasions'' as outlined by President James
Madison, one of the authors of the Constitution, and only in
circumstances when it is the only remedy for something that must be
done.
More than 11,000 Constitutional amendments have been proposed since
our Constitution was ratified. However, since the ratification of the
Bill of Rights in 1791 only 17 amendments have been enacted. These 17
include three reconstruction era amendments that abolished slavery, and
gave African-Americans the right to vote. The amendments included
giving women the right to vote, limiting Presidents to two terms, and
establishing an order of succession in case of a President's death or
departure from office. The last time Congress considered and passed a
new Constitutional amendment was when it changed the voting age to 18,
more than a quarter of a century ago. All of these matters were of such
scope they required a Constitutional amendment to be accomplished.
However, protecting the American flag can be accomplished without
amending the Constitution, and that is a critically important point.
Constitutional scholars, including those at the Congressional
Research Service, the research arm of Congress, and Duke University's
Professor William Alstyne, have concluded that this statute passes
Constitutional muster, because it recognizes that the same standard
that already applies to other forms of speech applies to burning the
flag as well. This is the same standard which makes it illegal to
falsely cry ``fire'' in a crowded theater. Reckless speech that is
likely to cause violence is not protected under the ``fighting words''
standard, long recognized by the Supreme Court of the United States.
I believe that future generations--and our founding fathers--would
agree that it's worth the effort for us to find a way to protect our
flag without having to wonder about the unintended consequences of
altering our Constitution.
Mr. President, I yield the floor.
The PRESIDING OFFICER (Mr. Santorum). The Senator from California.
Mrs. FEINSTEIN. Mr. President, I rise in strong support of S.J. Res.
14, a proposed constitutional amendment to protect our national flag
from physical desecration.
S.J. Res. 14 would give Congress, and Congress alone, the authority
to draft a statute to protect the flag. It would give Congress the
opportunity to construct, deliberately and carefully, precise statutory
language that clearly defines the contours of prohibitive conduct.
At the outset, let me say that amending the Constitution is serious
business, indeed. I know that, and I know we need to tread carefully.
The Constitution is, after all, democracy's sacred text. But the
Constitution is also a living text. As originally conceived, it had no
Bill of Rights. In all, it has been amended 27 times.
If the Constitution is democracy's sacred text, then the flag is our
sacred symbol. In the words of Supreme Court Justice John Paul Stevens,
it is ``a symbol of our freedom, of equal opportunity, of religious
tolerance, and of good will for other peoples who share our
aspirations.'' [dissenting opinion in Texas v. Johnson, 491 U.S. at 437
(1989)]
If the flag had no symbolic value, we would not get chills when we
see it lowered to half-mast or draped on a coffin. We wouldn't feel so
much pride when we see it flying in front of our homes or at our
embassies abroad. I wonder, is there any of us who can forget that
wonderful Joe Rosenthal photograph of the six Marines hoisting that
flag on the barren crag of Mount Suribachi, after the carnage at Iwo
Jima, where over 6,800 American soldiers were killed. There have been
many photographs of soldiers. There has been no photograph I know of
that so endures in our mind's eye, that has carried so much symbolism,
as that one. I remember seeing it because the San Francisco Chronicle
ran it on the front page during World War II. I was just a small child,
but from that point on, I knew the flag was something special.
People speak metaphorically about the fabric of our society and how
it has become frayed. I submit that in a very real sense, our flag is
the physical fabric of our society, knitting together disparate peoples
from distant lands, uniting us in a common bond, not just of individual
liberty but also of responsibility to one another. As such, the flag is
more precious to us, perhaps, than we may even know.
The flag flies over government buildings throughout the country. It
flies over our embassies abroad, a silent but strong reminder that when
in those buildings, one is on American soil and afforded all the
protections and liberties enjoyed back home.
Constitutional scholars as diverse as Chief Justices William
Rehnquist and Earl Warren and Associate Justices Stevens and Hugo Black
have vouched for the unique status of the national flag. In 1974, Byron
White said:
It is well within the powers of Congress to adopt and
prescribe a national flag and to protect the unity of that
flag. . . [T]he flag is an important symbol of nationhood and
unity, created by the Nation and endowed with certain
attributes.'' [Smith v. Goguen, 415 U.S. at 585-87 (1974)]
Justice White continued, ``[T]here would seem to be little question
about the power of Congress to forbid the mutilation of the Lincoln
Memorial or to prevent overlaying it with words or other objects. The
flag is itself a monument, subject to similar protection.''
I could not agree more with the opinion of Justice White: ``The flag
is itself a monument, subject to similar protection.'' Since that time,
unfortunately, a narrow majority of the Supreme Court has now ruled
twice that this great symbol of our national unity is not protected
under the Constitution. So that is why we are here today, to begin the
process of protecting the flag, which is a symbol of all the
protections we are afforded as Americans and all the liberties we
enjoy.
The flag flying over our Capitol Building today, the flag flying over
my home in San Francisco, each of these flags, separated by distance
but not in symbolic value, is its own monument to everything America
represents. It should be protected as such.
Our history books are replete with stories of American soldiers who
were charged with the responsibility of leading their units into battle
by carrying our Nation's flag. To them, it was more than a task, it was
an honor worth dying for, and many did. When one soldier would fall,
another would take his place, raise the flag, and press forward. They
would not fail. Their mission was too important, the honor too great,
flag and country too respected to give anything short of the last full
measure of their devotion, their lives, to succeed.
The American flag is a revered object as well as a national symbol.
Indeed, it is our monument in cloth. I believe it should be viewed as
such, and not simply as something that serves as one of many vehicles
for free speech.
Everything about the flag--its tangible form, its very fabric--has
significance. The shape, the colors, the dimensions, and the
arrangement of the pattern help make the flag what it is. The colors
were chosen at the Second Continental Congress in 1777. We all know
them well: Red for heartiness and courage; white for purity and
innocence; blue for vigilance, perseverance, and justice.
Moreover, our flag is recognized as unique not only in the hearts and
minds of Americans but in our laws and customs as well. No other emblem
or symbol in our Nation carries with it such a specific code of conduct
and protocol in its display and handling.
For example, Federal law specifically prescribes that the flag should
never be displayed with its union down, except as a signal of dire
distress or in instances of extreme danger to life or property. When a
flag is flown upside down, it is in fact a signal of distress.
The U.S. flag should never touch anything beneath it: neither ground,
floor, water, or merchandise. The U.S. flag should never be dipped to
any person or thing. And the flag should never be carried horizontally
but should always be carried aloft and free.
Why, then, should it be permissible conduct to burn, to desecrate, to
destroy this symbol, this emblem, this national monument? That is not
my definition of free speech.
For the first two centuries of this Nation's history, that was not
the Supreme Court's definition of free speech
[[Page S1803]]
either. In fact, until the Court's 1989 decision in Texas v. Johnson,
48 of the 50 States had laws preventing burning or otherwise defacing
our flag.
As I said at the outset, I don't take amending the Constitution
lightly. But when the Supreme Court issued the Johnson decision and the
subsequent United States v. Eichman decision [496 U.S. 310 (1990)],
those of us who want to protect the flag were forced to find an
alternative path.
In the Johnson case, the Supreme Court, by a 5-4 vote, struck down a
State law prohibiting the desecration of American flags in a manner
that would be offensive to others. The Court held that the prohibition
amounted to a content-based regulation. By design, at least according
to the Court, the lawfulness of Johnson's conduct could only be
determined by the content of his expression. As a result, the Texas
statute could not survive the strict scrutiny required by legal
precedent, so the Court struck it down.
After the Johnson case was decided, Congress passed the Flag
Protection Act of 1989. That Act prohibited all intentional acts of
desecrating the American flag and was, therefore, not a content-based
prohibition on speech or expression. Nevertheless--and this is the
point why a statute won't do--another narrow majority of the Supreme
Court acted quickly to strike down the Federal statute as well, ruling
that it suffered the same flaw as the Texas statute in the Johnson
decision and was consequently inconsistent with the First Amendment.
That 5-4 decision makes today's discussion necessary.
I support S.J. Res. 14 because it offers a way to return the Nation's
flag to the protected status it deserves. The authority for a nation to
protect its central symbol of unity was considered constitutional for
two centuries. It was only a decade ago that a narrow majority of the
Supreme Court told us otherwise.
It is important to point out that S.J. Res. 14 is not intended to
protect ephemeral images or representations of the flag but only the
physical flag itself. In other words, this amendment is not intended to
restrict the display of images of the American flag on articles of
clothing, patches, or similar items. This amendment would only protect
the flag itself.
Because we are protecting our national symbol, it makes sense to me
that Members of Congress, representing the Nation as a whole, should
craft the statute protecting our flag.
I also believe the amendment is consistent with free speech. I
disagree with those who say we are making a choice between trampling on
the flag and trampling on the first amendment. Protecting the flag,
circumscribing certain conduct, will not prevent people from expressing
their ideas through other means in the strongest possible terms.
I support this amendment because I believe flag burning is content,
not speech, and can be regulated as such. But to my friends who would
argue otherwise, I remind them that even the right to free speech is
not unrestricted. For example, the Government can prohibit speech that
threatens to cause imminent tangible harm, including face-to-face
``fighting words'', incitement to violate our laws, or shouting
``fire'' in a crowded theater. Obscenity and false advertising are not
protected under the first amendment, and indecency over the broadcast
media can be limited to certain times of day.
Even Justice William Brennan's decision in New York Times Co. v.
Sullivan [376 U.S. 253 (1964)] accepted that some speech (in that case,
known false statements criticizing official conduct of a public
official) may be sanctioned.
There is much that is open to debate about the proper parameters of
free speech. In the dissent to the 1990 Eichman case, Justice Stevens
wrote that certain methods of expression may be prohibited if three
criteria can be met:
First, the prohibition must be supported by a legitimate societal
interest unrelated to the ideas the speaker desires to express. I
believe protecting the flag meets the first test. It does not matter
why an individual chooses to desecrate a flag--all desecration is
equally prohibited.
Second, the speaker must be free to express his or her ideas through
other means. Again, a law protecting the flag does nothing to keep an
individual from expressing his or her views through speech or countless
other activities.
Third, societal interest must outweigh the ability of an individual
to choose among every possible form of speech. In this case, I believe
the significance of the flag--its value as a symbol of freedom and
democracy throughout the world, its ability to bring us together as a
nation, and the effect its destruction has on many Americans--clearly
outweighs the need to protect an individual's ability to express his or
her views in every conceivable way.
Is anyone here convinced that desecrating a flag might be the only
way for someone to express an opinion?
I recognize that by supporting a constitutional amendment to protect
the flag, I am choosing a different course from many of my fellow
Democrats in Congress and, quite frankly, from many of my close friends
for whom I have the greatest respect. But my support for this amendment
reflects my broader belief that the time has come for the Nation to
begin a major debate on its values. We need to ask ourselves what we
hold dear--is there anything upon which we will not cast our contempt?
How can we foster respect for tradition as well as ideological
diversity? How can we foster community as well as individuality? These
are all important values, and we must learn to reconcile them. We must
not advance one value at the expense of another.
The framers of the Constitution recognized two important elements in
our constitutional tradition--liberty and responsibility. Without
responsibility, without the rule of law, there could be no protection
of life, limb, or property--there could be no lasting liberty. I
believe there is a danger in moving too far in either direction--toward
too restrictive order, or toward unfettered individual liberty.
The key is the balance. In this instance, I believe we cannot tilt
the scales entirely in favor of individual rights when there exists a
vast community of people in this country who have gone to war for our
flag.
There are mothers and fathers, wives, husbands, and children who have
received that knock on their front door and have been told their son or
daughter, husband or wife, father or mother has been killed in the line
of duty. They have been given a flag on this occasion, a flag which
helps preserve the memory of their loved one and which speaks to his or
her courage. That is the symbol, that is the emblem, that is the
national monument.
Requiring certain individuals to stop defacing or burning the flag, I
think, is a very small price to pay on behalf of millions of Americans
for whom the flag has deep personal significance.
Less than a decade ago, when 48 States had laws against flag burning,
there was no less free speech. And if this amendment is adopted, the
First Amendment will continue to thrive. I believe S.J. Res. 14 will
protect the integrity of the flag and keep our First Amendment
jurisprudence intact.
While expressing my support for S.J. Res. 14, I briefly want to
explain why I oppose the amendment my colleague from Kentucky, Mr.
McConnell, offered. His amendment, derived from the text of S. 982,
would have had the effect of replacing the constitutional language with
statutory language.
However well-intentioned and earnest the Senator was in offering the
amendment, I believe it was flawed. The Supreme Court, following its
rulings in Texas v. Johnson and U.S. v. Eichman, would certainly strike
it down as violative of the First Amendment. We have been down this
road before.
The Johnson and Eichman decisions stipulate that neither Congress nor
the States may provide any special protection for the flag. In both
decisions, the Court made it clear that special legal protections for
the American flag offend the Court's concept of free speech. Because
the Court views the flag itself as an object of symbolic speech and not
as a monument, any conduct taken with regard to the flag constitutes
protected expression, as well. So we cannot overrule such a notion with
a statute. That is why, clearly and simply, we need a constitutional
amendment. And that is why I stand today to support that amendment.
I yield the floor.
The PRESIDING OFFICER. The Senator from Vermont is recognized.
[[Page S1804]]
Mr. LEAHY. Mr. President, am I correct that the Senate is not
operating under a time agreement?
The PRESIDING OFFICER. That is correct.
Mr. LEAHY. Mr. President, I note that even without a time agreement,
we have had a good debate. Senators on both sides of the issue have
spoken. We have had practically no quorum calls. We should have debate
like this where Senators can speak.
I see two of the most distinguished veterans of the Vietnam war on
the floor, the distinguished Senator from Nebraska, Mr. Kerrey, and the
distinguished Senator from Virginia, Mr. Robb. Both are highly
decorated veterans of that war.
I ask unanimous consent that I be able to yield to the Senator from
Nebraska, and then upon completion of his statement, that he be able to
yield to the Senator from Virginia.
Mr. HATCH. Mr. President, reserving the right to object.
Mr. LEAHY. I withhold the request so the Senator from Utah can speak.
Mr. HATCH. Reserving the right to object, as I understand it, the
Senate has to go out at about 5:30.
Mr. LEAHY. I renew the request.
The PRESIDING OFFICER. Without objection, it is so ordered.
The Senator from Nebraska.
Mr. KERREY. Supporters of this amendment are winning converts. Each
election cycle seems to bring them closer to the 67 votes they need to
send this 17-word amendment to the States for their ratification. And
49 legislatures have already indicated they would ratify this amendment
if Congress were to take this action.
Mr. President, these 17 words would make it constitutional for
Congress to pass a law giving the government the power to prohibit the
physical desecration of the flag of the United States of America.
Let me say at the beginning that I have deep respect for those who
have views that are different from mine. The Senator from California
spoke very eloquently in favor of this amendment. I have heard the
distinguished Senator from Utah, indeed, submit a personal appeal for
me to reconsider my views on this issue. I have a great deal of respect
for the purpose of this amendment. I especially pay tribute to the U.S.
American Legion. These patriots have done more than any others to help
young Americans understand that freedom is not free.
I have had the honor, through 16 years of public service, to
experience what the American Legion and other service organizations
have done, but especially the American Legion and the Girl's State and
Boy's State organizations, taking on the people who do not understand
the history and the story of the United States of America. They teach
them that story, that history, and they teach them to require the
respect necessary to be a good citizen. It is the value they add to our
community that is immeasurable.
I have listened with an open mind to their appeals that I support
this amendment. Regretfully and respectfully, I must say no.
I fear the unintended consequence of these 17 words and the laws that
may be enacted later will be far worse than the consequences of us
witnessing the occasional and shocking and disgusting desecration of
this great symbol of liberty and freedom.
Mr. President, real patriotism cannot be coerced. It must be a
voluntary, unselfish, brave act to sacrifice for others. When Americans
feel coercion, especially from their Government, they tend to rebel. So
none of us should be surprised if one unintended consequence of the
laws that prohibit unpopular activity such as this is an actual
increase in the incidence of flag desecration.
Another unintended consequence of this amendment will be the
diversion of police resources from efforts to protect us from dangerous
crime. Nobody should underestimate that this fact will happen. The
efforts to protect us from those who desecrate the flag will require
the training of police officers on when and where to respond to
complaints.
Mr. President, we pass the laws, but others must implement and
enforce them. They will receive complaints about neighbors and friends
or people who desecrate the flag. The police will have to respond to
every one of them. These laws will give the power of the Government to
local law enforcement agencies to decide when some individual is
desecrating the flag.
There are 45 words in the first amendment and this amendment protects
the rights of citizens to speak, to assemble, to practice their
religious beliefs, to publish their opinions and petition their
Government for redress of grievance. The 17 words that are in this
proposed 28th amendment would limit what the majority of Americans
believe is distasteful and offensive speech.
Though this seems very reasonable because most Americans do not
approve of flag desecration, it is only reasonable if we forget that it
is the right to speak the unpopular and objectionable that needs the
most protecting by our Government.
In this era of political correctness, when the fear of 30 second ads
has homogenized and sterilized our language of any distasteful truths,
this amendment takes us in the opposite direction of that envisioned by
our Founding Fathers whose words and deeds bravely challenged the
status quo.
Last year when I testified about this before the Judiciary Committee,
I took the liberty of buying an American flag and gave it to the
committee.
I bought that flag because every time I look at it, it reminds me
that patriotism and the cause of freedom produces widows. Widows who
hold the flag to their bosom as if it were the live body of their
loved-one.
The flag says more about what it means to be an American than a
thousand words spoken by me. Current law protects the flag. If anyone
chooses to desecrate my flag--and survives my vengeful wrath--they will
face prosecution by our Government. Such acts of malicious vandalism
are prohibited by law.
The law also protects me and allows me to give a speech born of my
anger and anguish in which I send this flag aflame. Do we really want
to pass a law making it a crime for a citizen despondent over a war, or
abortion, or something else they see going on in their country to give
a speech born of their anger? Do we really want a law that says the
police will go out and arrest them and put them in jail?
I hope not. Patriotism calls upon us to be brave enough to endure and
withstand such an act--to tolerate the intolerable. I sincerely and
respectfully thank all of those who hold views different from mine for
their patriotism. I will pray this amendment does not pass. But I thank
God for the love of country exhibited by those who do.
Thank you, Mr. President. I yield the floor.
The PRESIDING OFFICER. Under the previous order, the Senator from
Virginia is recognized.
Mr. ROBB. Mr. President, thank you. I thank my distinguished
colleague and fellow Vietnam veteran from Nebraska for his words. It is
an important topic.
Mr. President, when I came home from Vietnam a little over thirty
years ago, I came home to a nation divided. I was assigned by the U.S.
Marine Corps to head up a major officer recruiting program on college
campuses all across America. It was 1969 and anti-war fever was
consuming the nation. As you can imagine, my Marine uniform on a
college campus became a lightning rod for protests and protesters. In
this assignment, Mr. President, incoming bullets, rockets and artillery
were replaced by insults, jeers and demonstrations. At times, it was
tough.
I had just spent a tour of duty, which included commanding an
infantry company in combat, and over 100 of my men received the Purple
Heart, almost a quarter of them posthumously. Like all other warriors
who served in uniform, it wasn't their job to question the policy that
sent them to Vietnam, but they answered the call and those that died,
did so with honor, for our Nation.
So while I did my best to reason with the crowds that came out to
greet me on college campuses, I didn't appreciate the instinctive
disrespect that was shown to me and the uniform I wore.
But Mr. President, I rise today to defend the rights of those
individuals 30 years ago to protest me and my uniform.
Freedom of speech is the foundation of our democracy--and silencing
that speech would have been against everything I had fought for in
Vietnam. To
[[Page S1805]]
paraphrase an old saying: I didn't agree with what they said. But I had
been willing to die to protect their right to say it.
Mr. President, I am repulsed by any individual who would burn the
flag of my country to convey a message of dissent. It is an act I abhor
and can barely comprehend. But in the democracy that our forefathers
founded, and that generations of Americans have fought and died to
preserve, I simply do not have the right to decide how another
individual expresses his or her political views. I can abhor those
political views, but I cannot imprison someone for expressing them.
That's a fundamental tenet of democracies and its what makes America
the envy of the world, as the home of the free and the brave.
Mr. President, when we frame the acceptable context for conveying a
political message, we qualify freedom in America. We chip away at the
extraordinary freedom that has distinguished us from our enemies for
200 years.
Last week, I received an e-mail from a retired U.S. Marine Corps
Colonel from Virginia. Like many Americans (and many American
veterans), he had struggled with this issue and searched his conscience
for what's right. In his message to me, he said: ``I have seen our flag
torn in battle, captured by our enemies, and trampled on by protesters.
In all those events I never felt that the American way of life was in
grave peril . . . for whenever our flag fell or was destroyed there was
always another Marine to step forward and pull a replacement from his
helmet or ruck sack.''
He continued: ``The Constitution is the bedrock of America, the
nation . . . the people. It is not possible to pull another such
document from our `national ruck sack.' We have but one Constitution,
and it should be the object of our protection.''
Mr. President, there is no question that it is precisely because the
flag represents those sacred ideals that define our democracy, that we
are so angry to see one being trampled or torn or torched. What angers
us the most is the message of disrespect that desecration conveys. The
ingratitude of the desecrater is tangible and we simply cannot help but
be outraged. How can anyone be so shallow and so ungrateful that they
would destroy the flag of a nation so great that it gives them the
freedom to commit such a despicable act?
In fact, Mr. President, it is the motivation of the flag burner, not
the burning of the flag itself, that makes us so angry that we want to
punish that individual and throw away the keys. We know that when an
American flag is old and tattered, or damaged and no longer fit to fly,
we don't bury it, or throw it in the trash. We burn it. That is the
proper, respectful method of disposing of a flag. So it is not the
burning of the flag that stirs us to anger. It is the reason why the
flag was burned that gets us so upset. And the reason why the flag is
burned (to convey a message of dissent) is the reason why the
Constitution protects it.
It is precisely because the act of flag burning sends a message that
elicits such a visceral and powerful response that it is undeniably
speech. Vulgar, crude, infantile, repulsive, ungrateful speech, but
undeniably speech.
Mr. President, since speech that enjoys the support of the majority
is never likely to be limited, the Bill of Rights, by its very design,
protects the rights of a minority in key areas that the founders held
dear. And it is the freedom to dissent peacefully that separates the
greatest democracy the world has ever known from other regimes like
those in China, Cuba, Iraq, and others where political dissent has been
met with imprisonment and sometimes death.
We've applauded the awarding of the Nobel Peace Prize to individuals
in other countries willing to risk their lives to peacefully protest
their government. And we know that the first sign that freedom is in
trouble anywhere around the world is when the government starts locking
up its dissenters.
If we reach past our natural anger and disgust for a few publicity-
hungry flag-burners, we know in our hearts that a great nation like
ours, a nation that defends liberty all over the world, should not
imprison individuals who exercise their right to political dissent. And
we know in our hearts that a few repulsive flag-burners pose no real
danger to a nation as great as ours.
Mr. President, a great defender of freedom in the world, General
Colin Powell, had this to say in letter last year about this amendment:
I understand how strongly so many of my fellow veterans and
citizens feel about the flag and I understand the powerful
sentiment in state legislatures for such an amendment. I feel
the same sense of outrage. But I step back from amending the
Constitution to relieve that outrage. The first amendment
exists to insure that freedom of speech and expression
applies not just to that which we agree or disagree, but also
to that which we find outrageous. I would not amend that
great shield of Democracy to hammer a few miscreants. The
flag will still be flying proudly long after they have slunk
away.
Mr. President, our flag stirs very deep emotions in me. It never
fails to inspire me. I still get a chill down my spine when it passes
in a parade. And I've handed it, folded, to too many widows not to
revere it to the core of my being.
I fully support the Citizens Flag Alliance and especially my fellow
members of the American Legion for all their hard work to instill in
our people a greater respect for our flag. I understand why so many of
my fellow veterans support this amendment. But I want the same thing
they want. I want all of our citizens to respect our flag and all that
it stands for.
Mr. President, I want that flag to be the proud symbol of a nation
that is truly free. And for it to be that proud symbol, we must also
protect the sacred freedoms placed in the first amendment of the
Constitution by our forefathers.
Mr. President, I am a proud veteran of the U.S. Marine Corps. And I
learned many lessons serving in combat in Vietnam. I served with
Marines who loved this country and were great patriots. They were often
young and sometimes scared. But they risked their lives in Southeast
Asia.
Some of those brave warriors died for our nation. On two separate
occasions, I had men literally die in my arms.
Those who made the ultimate sacrifice may have died keeping faith
with their country. They may have died so that others might be free.
They may have died for an ideal or a principle or a promise--sacred
intangibles that transcend time. Some might say they died for the flag.
But I was there, Mr. President, and they did not die for a piece of
cloth (however sacred), that eventually becomes worn and tattered and
eventually has to be replaced. No. They died fighting for all that our
flag represents.
My fellow veterans who died in combat sacrificed their lives for
these intangibles that are the core values of our democracy. They died
for liberty and tolerance, for justice and equality. They died for that
which can never burn. They died for ideals that can only be desecrated
by our failure to defend them.
In opposing this amendment, I truly believe that I am again called
upon to defend those intangible ideals--like freedom and tolerance--for
which so many of us fought, and too many of us died. I am in a
different uniform today, in a different place and time. But I feel as
if, in some way, I am again battling the odds to defend principles
that, as a younger man, I was willing to die for. I'd still put my life
on the line today to defend those principles.
I say that because the flag represents freedom to me. But the first
amendment guarantees that freedom. And when we seek to punish those who
express views we don't share, then we--not the flag burners--we begin
to erode the very values, the very freedoms, that make America the
greatest democracy the world has ever known. I support our flag, and
the republic for which it stands. But I cannot, with the faith I have
in that republic, support this constitutional amendment.
I thank the Chair. And I thank my distinguished colleague from
Nebraska who has received the highest honor our country can bestow on
any who has defended America in battle; the Medal of Honor. I am proud
to appear with him.
I yield the floor.
The PRESIDING OFFICER. The Senator from Vermont.
Mr. LEAHY. Mr. President, I commend the distinguished Senator from
Virginia for his statement, as I do the distinguished Senator from
Nebraska. I can assure my friend from Virginia, a
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young marine, my son, will receive a copy first thing in the morning at
his home in California of the speech by the Senator from Virginia and a
speech by the Senator from Nebraska.
Later this evening I am going to be having dinner with my oldest and
dearest friend, a man I went to college with, a marine. He served the
Republic and faced the same kind of reaction when he came back from
combat from Vietnam. One day he was in a firefight in Vietnam, 2 days
later he was walking down the street in his uniform in the United
States, facing protesters' shouts.
Having risked his life, as did both of you, he said what saved him
through that time was to know exactly for what he fought. At least he
has had the satisfaction of seeing so much of that come full circle:
The Wall here, people realizing that whatever the protesters had
against the war, it should not be against the warriors, especially when
they see the names of tens of thousands who did not come back.
I recall last year when the Senate rose as one to commemorate the
heroism and valor of the Senator from Nebraska. Both of you have been
decorated for heroism, both of you have faced near death in battle. I
think both of you have come back here to serve your country in as
strong a way as you did there, both as Senators but in bringing a calm,
considered, integrity constantly throughout your service in the Senate.
I am not a veteran. I did not serve in battle. But I think how proud
I am to have served in the Senate with both of you. I thank you for
your speech tonight. I hope all Americans and all Senators will listen.
Mr. President, I met again today with Vermont representatives to the
American Legion convention, which is taking place in Washington this
week. These are people who deserve our respect, who served this nation
in time of war, and who sacrificed so that our freedoms and way of life
would triumph over Nazi Germany. As they gather, I pledge to continue
to work with them to address the unmet needs of American veterans.
Abraham Lincoln reminded us of our sacred obligation ``to care for him
who shall have borne the battle, and for his widow, and his orphan.''
Following the Judiciary Committee's hearings last year on the
constitutional amendment to restrict the first amendment to protect the
flag from use in political protest, I asked Maj. Gen. Patrick Brady,
chairman of the Citizens Flag Alliance, what in his opinion were the
most pressing issues facing our veterans. His response may surprise the
proponents of the constitutional amendment. His response to my inquiry
regarding the most pressing issues facing veterans was ``broken
promises, especially health care.''
I asked the same question of Professor Gary May, an American hero who
lost both legs while serving his country in Vietnam. Professor May
said:
Veterans and their families need services and
opportunities, not symbolism. Recruitment for military
service is predicated in part on a quid pro quo--if honorable
service is rendered, then meaningful post-service benefits
will follow. Our record of making good on this contract is
not good. The favorable expressed sentiment for veterans by
supporters of the flag desecration amendment would be better
placed in support of extending and stabilizing services
responsive to the day-to-day needs of ordinary veterans and
their families.
Have we followed this good counsel here in the Senate? The
unfortunate answer is no. Our veterans and retirees have received more
high-sounding rhetoric about patriotism than real efforts on our part
to resolve the broken promises.
During the debate on the Intermodal Surface Transportation Efficiency
Act of 1998, the Senate voted to shift over $10 billion worth of
critical veterans funding to help pay for extravagant highway spending
programs.
Three times that year, the Senate raided veterans' programs: in the
budget resolution, in the IRS Reform legislation, and in the VA/HUD
Appropriations Bill. All three times, too many Senators voted against
the veterans. If only a few more of those who now beat their chests
about symbolic actions had voted for them, the necessary funding for
veterans would have been assured.
We have had numerous other missed opportunities to increase the funds
in the Veteran Administrations medical care account. Hospitals are
seeing more patients with less funding and staff, and it can take
months to get a doctor's appointment. It is not mere symbolism to fund
those hospitals.
It has been estimated that a third of all homeless people in this
country are American veterans. Many of those people may be suffering
from post-traumatic stress disorder or other illnesses relating to
their military service.
We all know that with the end of the cold war, military bases are
closing. Military retirees who relied on the base hospitals for space-
available free medical care are losing access to care. Many service
members retired near military bases specifically so that they could
enjoy the free medical care we promised them, but now they have to find
health care in the marketplace.
I saw this in Vermont recently, where we had to fight--yes, fight--to
keep adequate funding for the only veteran's hospital in the State. The
in-patient surgical program at the White River Junction VA hospital was
nearly closed down. If the closure had gone through, many elderly
Vermont and New Hampshire veterans would have had to travel all the way
to Boston for medical care, and many of them just cannot. The VA has
recommitted itself to the White River Junction program, but this sort
of thing is happening all across the country.
Last year, we finally raised the veteran's budget for medical care by
$1.7 billion. I was particularly relieved that Vermont veterans finally
received some assistance, in the form of a $7 million Rural Health Care
Initiative. That funding will develop a number of innovative programs
to bring high quality care closer to home. I would remind everyone that
a majority of the Senate defeated an amendment offered by my friend
Paul Wellstone that would have raised VA medical care funding an
additional $1.3 billion in Fiscal Year 2000. I was proud to vote for
the increase, but disappointed that more of colleagues did not go along
with this much-needed amendment.
We have a long way to go in ensuring that our veterans receive the
health care that they so richly deserve. After many years of fixed
funding and increased costs, we need continued funding increases, and
new programs to provide higher quality care.
We must also keep our promises to those who have completed a military
career. I have strongly supported efforts to improve TRICARE, the
military health care system upon which military retirees rely for their
health care. The system is generally sound, but problems have arisen in
developing the provider networks and ensuring quick reimbursements for
payments. Last November, I supported a TRICARE forum in Burlington,
Vermont, to allow retirees and other participants to express their
concerns directly to health care providers. Of course, we must also
ensure that Medicare-eligible retirees continue to receive high quality
health care.
What are we doing instead? In 1996, we changed the immigration laws
to expedite deportation proceedings by cutting back on procedural
safeguards and judicial review. The zealousness of Congress and the
White House to be tough on aliens has successfully snared permanent
residents who have spilled their blood for this country. As the INS
prepares to deport American veterans for even the most minuscule
criminal offenses, we have not even been kind enough to thank them for
their service with a hearing to listen to their circumstances. Last
year I introduced the Fairness to Immigrant Veterans Act, S. 871, to
remedy this situation, but it has been bottled up in committee.
If we truly wish to do something patriotic, what we should be talking
about is honoring our veterans. We should honor our veterans by
answering Lincoln's call ``to care for him who shall have borne the
battle, and for his widow, and his orphan.'' We should honor our
veterans with substance rather than symbols.
If we fail to meet the concrete needs of American veterans and try to
push them aside with symbolic gestures, we will have failed in our duty
not only to our veterans, but to our country, as well. I wonder where
we would be if the effort and funds expended each year lobbying for the
constitutional amendment had been directed toward the needs of our
veterans and their families
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and to making sure that we honor them by fulfilling our commitments to
them.
I see one of the many veterans of World War II serving still in the
Senate, and I will yield to my friend and neighbor, the distinguished
senior Senator from New York.
Mr. MOYNIHAN. Mr. President, I had not intended to speak in this
debate. This is the fourth time this amendment has come to the floor
since I have been present. But the speeches, statements, the addresses
by the Senator from Nebraska and the Senator from Virginia compel me
simply to bear witness to them. There are 10 Members in the Senate
today, 10 remaining persons, who were in uniform in World War II.
I was in the Navy--not heroically; and I was called up again briefly
in Korea. I was part of that generation in which service to the Nation
was so deeply honored, and lived with horror to see the disrespect
shown those who answered the country's service in Vietnam, as they were
asked to do. They were commanded to do so and they had taken an oath to
obey.
What a thrilling thing it is to see, two such exemplars, men of
heroism, achievement and spotless honor, come to this floor and speak
as they have done. We take one oath which binds us today. Those who
have been in the military have taken earlier oaths. Our oath is to
uphold and defend the Constitution of the United States against all
enemies, foreign and domestic--not ``foreign or,'' not just
``foreign.'' This was added over the course of the 19th century.
Surely, there would be no one, however unintentionally--and I say
this as a member of the American Legion--who would propose that to
debase the First Amendment to the Constitution meets the criteria of
upholding and defending it.
Those two men have defended their nation in battle--one in the Navy,
one in the Marines. I speak as one who was involved. I was in 20 years,
altogether, before being discharged. I have to grant, I was not aware
that I was discharged, but it turned up later in the file somewhere.
Our oath is solemn, and it is binding, and they--Senators Robb and
Kerrey--stand there as witness to what it requires of us. If we cannot
do this on this floor, what can we expect Americans to do on
battlefields, in the skies, under the seas, and on the land in the
years ahead?
Please, I say to all Senators, heed them and walk away from this
trivializing of our most sacred trust. Defeat this amendment.
I thank the Chair.
Mr. DASCHLE. Will the majority leader allow me to make one brief
comment before he propounds his unanimous-consent request?
Mr. LOTT. Yes.
Mr. DASCHLE. Mr. President, I came to the floor to thank the
distinguished senior Senator from New York, but also my two colleagues,
Senators Robb and Kerrey, for their extraordinary statements on the
Senate floor. I hope the American people have had the opportunity to
hear, and I hope the opportunity to read what they have said is made to
schoolkids and others who have given a great deal of thought to our
Constitution and the reason our Founding Fathers wrote as they did.
Their eloquence and their power and their extraordinary
persuasiveness ought to be tonic for us all late in the day on an
afternoon which has seen a good debate. I am hopeful people have had
the opportunity to hear this contribution, above and beyond all of
those made so far in this debate.
I yield the floor.
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