[Congressional Record Volume 146, Number 37 (Wednesday, March 29, 2000)]
[Senate]
[Pages S1857-S1862]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




          FLAG DESECRATION CONSTITUTIONAL AMENDMENT--Continued


                      Unanimous Consent Agreement

  Mr. SMITH of New Hampshire. Mr. President, on behalf of the leader, I 
ask unanimous consent that, notwithstanding rule XXII, the following 
Senators be recognized for debate on the pending flag desecration 
legislation for the designated times, and following the use for 
yielding back of time, the joint resolution be read the third time and 
a vote on passage occur, all without any intervening action or debate. 
Those Senators are as follows: Senator Byrd

[[Page S1858]]

for up to 60 minutes; Senator Leahy for up to 60 minutes; Senator Hatch 
for 60 minutes; Senator Daschle for up to 15 minutes; Senator Lott for 
the final 15 minutes.
  The PRESIDING OFFICER. Is there objection?
  Without objection, it is so ordered.
  The PRESIDING OFFICER (Mr. Gregg). The Senator from West Virginia is 
recognized.
  Mr. BYRD. Mr. President, we Americans are patriotic, and there are 
few acts more deeply offensive to us than the willful destruction of 
our flag. The flag, after all, is a unique symbol of national unity and 
a powerful source of national pride.
  But the flag does not just represent the country and its history; in 
a very real sense it is a part of that history. Like the Constitution, 
the flag was handed down to us by the country's Founding Fathers, for 
it was the Second Continental Congress that, in 1777, established the 
Stars and Stripes as the national flag. From Tripoli in 1805 to Iwo 
Jima in 1945 to the Moon in 1969, the flag has been raised to 
commemorate some of America's proudest moments.
  Millions of American men and women have marched off to battle behind 
that flag.
  I see the flag there. It is just to the right of the Presiding 
Officer here in the Chamber. What a beautiful sight--that flag!
  Millions more have sworn allegiance to the flag and ``to the republic 
for which it stands.'' And, while historians may dispute this point, 
schoolchildren to this day are taught to revere Betsy Ross for having 
sewn the first flag. Anyone who doubts either the flag's place in the 
country's history or the tremendous emotional ties that it inspires 
needs only to listen to the words of our national anthem, in which 
Francis Scott Key recalls with pride the sight of the Stars and Stripes 
flying proudly over Fort McHenry after a heavy bombing by British 
forces in 1814. Key's words are so familiar that we may scarcely think 
of them when we hear or sing them, but they are a deeply moving tribute 
to our flag.
  In contemplation of the moment which is approaching when the Senate 
would again be confronted with a constitutional amendment concerning 
the desecration of the American flag, I have spent hours in discussions 
with constitutional scholars, with members of my staff, and in 
researching court decisions. I know of few subjects that have come 
before the Senate that have given me greater anguish. I know that the 
strong sentiment in West Virginia and throughout the country supports 
the amendment. I have voted for such a constitutional amendment in the 
past, but, based upon my deep and searching consideration of this 
matter, I have changed my mind and I will vote against S. J. Res. 14. 
In fact, it was my sad duty, on yesterday, to inform the members of The 
American Legion, gathered together here in Washington, that I could not 
be with them this time. I hated that I had to disappoint them. Some 
will fault me for having changed my position, and I can understand 
this, yet, as James Russell Lowell once said, ``The foolish and the 
dead alone never change their opinion.''
  In fact, one of the greatest events of all time was brought about by 
the changing of one man's opinion 2000 years ago. Before he became the 
Great Apostle, Paul, who was then called Saul, was a persecutor of 
Christians. But after Saul was converted--he changed his opinion, his 
viewpoint, and his life. The Apostle Paul had a compelling influence on 
the future course of history. In Paul's case, God spoke to him and 
lifted his literal and psychic blindness. I do not contend that my 
change of viewpoint is in any way on the same scale of Paul's, or that 
such momentous results will follow, of course, but his story does 
remind us that one can be blinded to the truth by misplaced passion.
  Mr. President, I yield to no-one in my respect, honor, and reverence 
for Old Glory. Nor do I yield to anyone in my commitment to those 
veterans who, for the benefit of all Americans, have given so much in 
defense of our country and in defense of our flag. Yet, despite my love 
for the flag, and despite my commitment to our Nation's veterans, I 
regret that I cannot support this well-intended amendment. I cannot 
support it because I do not feel that it belongs in our Constitution; 
because I believe that many instances of flag desecration can be 
prosecuted under general laws protecting public or private property, 
laws which do not require any constitutional amendment; I cannot 
support the amendment because flag burning, though loathsome, is hardly 
pervasive enough to warrant amending the Constitution; I cannot support 
the amendment because I fear that the primary effect of this amendment 
would be more, not fewer, incidents of flag destruction; and because I 
feel that, rather than rushing into a constitutional amendment, we 
might be better served by allowing the Supreme Court the opportunity to 
revisit this issue.
  What do I mean, Mr. President, when I say that this measure does not 
``belong'' in the Constitution? Let me start by being clear about what 
I do not mean. I do not mean that protecting the flag is a trivial or 
unimportant goal of government. Nor do I mean that the flag deserves 
anything less than our complete reverence and our complete devotion. 
What I do mean, quite simply, is that a ban on flag desecration does 
not fit into--would, in fact, be out of place in--the skeletal document 
which lays out the basic organization and structure of the national 
government, determines federal-state relations, and protects the 
fundamental liberties of the people, all of us.
  I think my meaning will be clearer if we take a closer look at the 
purposes that constitutional amendments are intended to serve. The 
Framers gave this matter some thought in their deliberations at 
Philadelphia in 1787. They considered and they rejected resolve No. 13 
of the Virginia Plan offered by Gov. Edmund Randolph of that State, 
resolve 13 which would have permitted ``amendment of the Articles of 
Union whensoever it shall seem necessary,'' and which stated ``that the 
assent of the National Legislature ought not to be required thereto.'' 
They rejected that. Indeed, several delegates to the Convention, among 
them Charles Pinkney of South Carolina, opposed any provision for 
Constitutional amendments to the Constitution. Recognizing, however, 
that occasional revisions might be necessary, the Convention finally 
agreed upon a compromise that deliberately made it difficult to amend 
the Constitution by requiring successive supermajorities. Article V 
sets up a cumbersome two-step process to amend the Constitution. It is 
cumbersome because the framers intended it to be cumbersome. The first 
step is approval either by two-thirds of Congress meaning both Houses 
or--and this has never been done--by a convention called for by two-
thirds of the states. The second step is ratification by three-fourths 
of the states.

  Given the hurdles set up by Article V, it should come as no surprise 
that so few amendments to the Constitution have been approved. There 
are twenty-seven in all, and the first ten were ratified en bloc in 
1791--209 years ago. In the two hundred and nine years since 
ratification of the Bill of Rights, there have been just 17 additional 
amendments. Think of that. If we disregard the 18th and 21st 
Amendments, marking the beginning and end of Prohibition, we are left 
with only 15 amendments in 209 years!
  The 18th amendment was wiped out after 15 years by the 21st 
amendment. These mark the beginning and end of Prohibition.
  So, as I say, we are left with actually only 15 amendments in 209 
years. Just think of it. In 209 years, despite all of the political, 
economic, and social changes this country has experienced over the 
course of more than two centuries; despite the advent of electricity, 
which lights this Chamber, and despite the advent of the internal 
combustion engine; despite one civil war and two world wars and several 
smaller wars; despite the discovery of modes of communication and 
transportation beyond the wildest fancies of the most visionary 
framers, this document, the Constitution of the United States, has been 
amended only 15 times. If you want to count the 21st amendment, 16 
times would be the total number.
  Truly, the Constitution is an extraordinary work of wisdom and 
foresight on the part of the framers. George Washington and James 
Madison may be forgiven for referring to the product of their labor as 
``little short of a miracle.'' Gladstone may well have gotten

[[Page S1859]]

it right when in 1887 he declared the Constitution to be the most 
wonderful work ever struck off at a given time by the brain and purpose 
of man.
  As for those 15 amendments I have just mentioned, these can generally 
be divided into two roughly equal categories. One category consists of 
those amendments that deal with the structure and organization of the 
three branches of Government, the laying out of the three separate 
branches--the legislative, the executive, the judiciary. The checks and 
balances, these include the 11th amendment. Of course, those were 
included in the original Constitution, the separation of powers, in the 
first, second, and third articles--the legislative, executive, and 
judicial.
  As to the amendments, the 15 amendments plus the first 10, these 
include the 11th amendment, preventing the Federal courts from hearing 
suits against States by citizens of other States; the 12th amendment, 
regarding the election of the President and the Vice President; the 
17th amendment, establishing the direct elections of Senators; the 20th 
amendment, regulating Presidential terms and related matters; the 22nd 
amendment, limiting a President to two terms; the 25th amendment, 
regarding Presidential succession; and the 27th amendment, deferring 
congressional pay raises until after an intervening election.
  There is very little need for me to attempt to justify the inclusion 
of these provisions in the Constitution. However we may feel about them 
personally, their subject matter, the structure of the Federal 
Government, fits in perfectly with that of articles I through IV.
  There is good reason to suspect the framers themselves thought that 
most, if not all, amendments would address structural matters. In No. 
85 of the Federalist Papers, Alexander Hamilton expressed it this way: 
A thorough conviction that any constitutional amendments which ``may, 
upon mature consideration, be thought useful, will be applicable to the 
organization of the government and not to the mass of its powers.''
  Hear that again: Hamilton expressed a thorough conviction that any 
constitutional amendments which ``may, upon mature consideration, be 
thought useful, will be applicable to the organization of the 
government, and not to the mass of its powers.''
  In Hamilton's mind, any amendments would deal with the structure, the 
organization, of the Government.
  The second category consists of those constitutional amendments that 
narrow the powers of government and expand or protect fundamental 
personal rights. These include the 13th amendment banning slavery, the 
14th amendment, which extended citizenship to all persons ``born or 
naturalized in the United States and subject to the jurisdiction 
thereof'' and guaranteed all citizens certain basic protections, and 
the 15th, 19th, 23th, 24th, and 26th amendments, each of which extended 
the vote to new groups of citizens.
  Clearly, the flag desecration amendment fits into neither category. 
For constitutional purposes, it is neither fish nor fowl. It does not 
address a structural concern; it does not deal with Federal relations 
between the National and State governments--in other words, the Federal 
system; it extends, rather than narrows, the powers of government; and 
it does not protect a basic civil right.
  Look at your Constitution. Look at your Constitution and the 
amendments thereto which, to all intents and purposes, are part of the 
Constitution. You will see that the Constitution overall narrows the 
powers of government; it does not extend those powers. Indeed, some 
opponents of this amendment that is before us argue that it restricts 
personal liberty.
  The 13th amendment forbidding slavery may be viewed as the only 
amendment regulating the conduct of individuals. The 13th amendment was 
the product of a bitter, fiercely contested Civil War, the War Between 
the States, and it was necessary to end one of the most loathsome and 
shameful institutions in our Nation's history. This, the 13th 
amendment, was an exceptional amendment. It was necessitated by 
exceptional circumstances.
  There was, of course, one notable attempt to regulate individual 
conduct via a constitutional amendment. I have already referred to 
that, the 18th amendment, instituting Prohibition, which also deviated 
from the model of constitutional amendments I have laid out--with 
disastrous results. Like the flag desecration amendment, the 18th 
amendment sought to restrict private conduct in the name of a greater 
social good. Like the flag desecration amendment, the 18th amendment 
had a commendable goal. Nonetheless, the 18th amendment was a mistake 
and it took us 15 years to rectify it. True, the mistake was rectified 
in 1933, but the damage was already done. The 21st amendment ended 
Prohibition, but it could not erase the preceding 15 years in which a 
constitutional provision--not a statute, a constitutional provision, a 
portion of the highest law in the land--was routinely ignored and 
violated. You see, once that 18th amendment was riveted into the 
Constitution, it took 15 years to unlock it, to undo it, to repeal it.
  Prohibition not only made criminals and scofflaws of countless 
Americans, it also placed them in violation of the Constitution. I can 
remember the revenue officers, when they came to the coal camps and 
when they scoured around the hills and the mountains looking for the 
moonshine stills. I can remember those revenuers. That was a terrible 
mistake, and, while the blemish to the Constitution has since faded, 
the lesson may not have been learned.
  Thus, a constitutional amendment against flag burning may very well 
prove to be counterproductive, just as did the Prohibition amendment. 
If this were to happen, our Constitution would be diminished and flag 
burning would continue--would continue.

  In the final analysis, it is the Constitution--not the flag--that is 
the foundation and guarantor of the people's liberties. Respect for 
that Constitution should not be undermined by amendments, however well 
intentioned, that cannot be enforced. I fought the constitutional 
amendment to balance the budget for the same reason. I said it could 
not, would not--would not be enforced, and that as a result of lack of 
enforcement, the people's faith in the Constitution would be 
undermined. I say the same thing here. It will not be enforced.
  It is like the Commandment that says: ``Thou shalt not kill,'' but 
killing goes on every day right here in the Nation's Capital.
  ``Thou shalt not steal,'' but stealing continues.
  I have come to believe strongly that constitutional amendments, as 
Madison said, should be saved ``for certain and extraordinary 
occasions.'' I am not saying the Constitution should never be amended. 
I am not saying that. Madison was not saying that either. But Madison 
said that constitutional amendments should be saved for ``certain and 
extraordinary occasions.''
  Critics may accuse me of being overly conservative, but I believe I 
am right. I have learned from study and from my own recent experience 
with the proposed constitutional amendment to balance the budget that 
tinkering with the careful system of checks and balances and the 
separation of powers contained in the Constitution, can have far-
reaching and sometimes unexpected consequences. When it comes to 
revising the most basic text in our Federal system, when it comes to 
improving upon the handiwork of Washington and Madison and Hamilton and 
James Wilson and Roger Sherman and Gouverneur Morris and Benjamin 
Franklin and others at the convention; when it comes to setting a pen 
to the sacred charter of our liberties that my colleagues and I have 
sworn at the desk to uphold and defend--then, yes, I am conservative.
  While I do not rule out the possibility that I might offer an 
amendment some day, as I have done in the past--I have learned a lot in 
these last years in the Senate--they should be reserved, as Madison 
said, for compelling circumstances when alternatives are unavailable.
  Polls are no substitute for reasoned analysis and independent 
thought. Polls were very much in evidence during the balanced budget 
amendment debate, and we see the same thing here today. Who would 
oppose a balanced budget? Those of us who voted against the balanced 
budget amendment did not oppose a balanced budget. We were opposed to 
what that amendment would do to the Constitution of the United States; 
what it would do to the

[[Page S1860]]

faith and confidence of the American people in their Constitution.
  Who would oppose protecting the flag? Nobody here certainly. But the 
Senate, in particular, was intended by the framers to be an oasis of 
cool, deliberate debate, free from the hasty and heated rhetoric that 
characterizes so many political exchanges.
  The writers of the Constitution were remarkable men. Such a gathering 
probably never before sat down within the four corners of the Earth. 
That was the real miracle that took place in Philadelphia, that those 
minds, and many of them were young--Franklin was 81, but Pinckney was 
29; Gouverneur Morris was 35; Madison was 36; Hamilton was 30--that so 
many brilliant minds sat down in one place at a given moment in time. 
The clock of time had struck. Had it been 5 years earlier, they would 
not have experienced to the full the flaws of the Articles of 
Confederation, so they would not have been ready. Had it been 5 years 
later, they would have seen all of the ills, the extremes of the French 
Revolution, the deaths at the guillotine. They would have been repelled 
in horror by what happened there, the excesses. These were the 
miracles: the right place, the right time, and the right men.
  The framers of the Constitution were indeed remarkable men, and their 
words are often as wise and relevant today as they were two centuries 
ago. Thus, Madison wrote in Federalist 49 that ``a constitutional road 
to the decision of the people ought to be marked out and kept open, for 
certain great and extraordinary occasions.''
  Currently, there appears to be no such ``great and extraordinary'' 
occasion that calls for a 28th constitutional amendment.
  Madison also warned against the reference of constitutional questions 
to the people too often. ``Do not do it too often,'' he said. ``Do not 
send amendments to the American people too often.''
  In the Federalist 49, he said:

     . . . as every appeal to the people would carry an 
     implication of some defect in the government, frequent 
     appeals would, in great measure, deprive the government of 
     that veneration which time bestows on everything, and without 
     which perhaps the wisest and freest governments would not 
     possess the requisite stability.

  Madison further said:

       The danger of disturbing the public tranquility by 
     interesting too strongly the public passions is a still more 
     serious objection against a frequent reference of 
     constitutional questions to the decision of the whole 
     society. . . . But the greatest objection of all is that the 
     decisions which would probably result from such appeals would 
     not answer the purpose of maintaining constitutional 
     equilibrium of the government.

  That was James Madison warning us against sending to the American 
people constitutional amendments too often.
  Flag destruction is, fortunately, only a rare occurrence. While our 
culture may have become increasingly coarse and vulgar at times--and it 
certainly has, there is no question about that--most Americans respect 
the flag and most Americans voluntarily refrain from abusing it.
  I do not want to give the same attention-seekers who defile the flag 
the opportunity to defy the Constitution as well. By one act, they 
would then be able to desecrate and defy the flag and at the same time 
to defy--defy, defy--the Constitution of the United States. This is 
more than a matter of symbolism; this is a question of respect for the 
founding document of this Republic and the supreme law of the land.
  Any disrespect for the Constitution is a repudiation of the most 
basic principles and laws of the country. And now you say let's put 
into the Constitution some verbiage that cannot be enforced, that will 
not be enforced; cannot be. It will be defied by some.
  Let me say that again. Any disrespect for the Constitution is a 
repudiation of the most basic principles and laws of the country. We 
are talking about the supreme law of the land. The law here can be 
changed--passed today and changed before the beginning of the next 
Congress next year. But not a constitutional amendment. Once it is 
welded into the Constitution, it will take years to repeal it, to take 
it out, to remove it, as we saw in the case of amendment No. 18, the 
prohibition amendment.
  I shrink from the possibility of providing a tiny minority of rabble-
rousers with the ammunition to fire upon the most important and beloved 
document in the country.
  As I suggested a bit earlier, we already made the mistake once before 
of inserting into the Constitution a restriction on private conduct 
that could not be enforced. The Constitution suffered terribly under 
Prohibition. It would also have suffered under a balanced budget 
amendment, another unenforceable and litigation-inducing provision that 
many of my colleagues wished to insert into the Constitution. Just as I 
opposed the balanced budget amendment out of a desire to protect the 
Constitution from further abasements, so, too, I must oppose a flag 
desecration amendment. It, too, would be unenforceable.
  If one provision of the Constitution proves to be unenforceable, what 
about the other provisions?
  Just as I am resolved to protect both the Constitution and the flag, 
I am determined that we not make martyrs of those villains who would 
sully--who would sully--the Stars and Stripes. Why should we let these 
malefactors portray themselves as courageous iconoclasts, sacrificed at 
the altar of public complacency and intolerance? It is possible, I 
believe, to craft statutory protection for the flag that can withstand 
a court challenge. The amendment in the form of a substitute that was 
offered by Senator McConnell, the Flag Protection Act of 1999, could, 
in the opinion of the American Law Division of the Library of Congress, 
withstand such scrutiny. In the words of that opinion, ``subsections 
(b) and (c) appear to present no constitutional difficulties, based on 
judicial precedents, either facially or as applied.'' Further, the 
opinion notes, ``Almost as evident from the Supreme Court's precedents, 
subsection (a) is quite likely to pass constitutional muster.'' The 
opinion closes by noting, ``In conclusion, the judicial precedents 
establish that the bill, if enacted, while not reversing Johnson and 
Eichman, should survive constitutional attack on First Amendment 
grounds.''
  The first case to which I just referred, of Texas v. Johnson, arose 
from an incident during the 1984 Republican Convention in Dallas, 
Texas, in which Gregory Lee Johnson participated in a political 
demonstration and burned an American flag while protestors chanted. 
Johnson was convicted of desecration of a venerated object in violation 
of a Texas statute, and a State Court of Appeals affirmed the decision. 
However, the Texas Court of Criminal Appeals reversed the decision, 
holding that burning the flag was expressive conduct for which the 
State could not, under the First Amendment, punish Johnson in these 
circumstances. The Supreme Court, in a 5-4 decision, upheld the lower 
court's decision.
  But in the dissent by Chief Justice Rehnquist, Justice White, and 
Justice O'Connor, they noted, ``the Texas statute deprived Johnson of 
only one rather inarticulate symbolic form of protest--a form of 
protest that was profoundly offensive to many--and left him with a full 
panoply of other symbols and every conceivable form of verbal 
expression to express his deep disapproval of national policy.'' The 
Justices also observed, ``Surely one of the high purposes of a 
democratic society is to legislate against conduct that is regarded as 
evil and profoundly offensive to the majority of people--whether it be 
murder, embezzlement, pollution, or flag burning.''
  After the Johnson decision, Congress passed the Flag Protection Act 
of 1989, criminalizing the conduct of anyone who ``knowingly mutilates, 
defaces, physically defiles, burns, maintains on the floor or ground, 
or tramples upon'' a United States flag, except conduct related to the 
disposal of a ``worn or soiled'' flag. Subsequently, several people, 
among them Shawn D. Eichman, were prosecuted in District Courts. In 
each case, the appellees moved to dismiss the charges on the ground 
that the Act violated the First Amendment. The District Courts, 
following the precedent set by the Johnson case, held the Act 
unconstitutional as applied and dismissed the charges. The Supreme 
Court, again in a 5-4 decision, upheld the decision.
  However, in the dissent authored by Justice Stevens, with whom the 
Chief Justice, Justice White, and Justice O'Connor joined, the justices 
noted

[[Page S1861]]

that ``it is equally well settled that certain methods of expression 
may be prohibited if (a) the prohibition is supported by a legitimate 
societal interest that is unrelated to the suppression of ideas the 
speaker desires to express; (b) the prohibition does not entail any 
interference with the speaker's freedom to express those ideas by other 
means; and (c) the interest in allowing the speaker complete freedom of 
choice among alternative methods of expression is less important than 
the societal interest supporting the prohibition.''
  Given the closeness of the votes in Johnson and Eichman--given the 
presumption against amending the Constitution whenever other 
alternatives are available--and given the powerful arguments made by 
Chief Justice Rehnquist and Justice Stevens in their dissents--perhaps 
the better course of action is to allow the Court sufficient time to 
reconsider its views on this controversial topic.

  The Court has already changed its composition since the Eichman 
decision eight years ago. Four of the Justices who decided that case, 
including three who voted with the majority, have been replaced. Who 
can say whether a new court will find itself swayed by the persuasive 
arguments that Mssrs. Rehnquist and Stevens have put forth? Instead of 
our adding a new, 28th Amendment to the Constitution, would it not be 
preferable for the Court, on closer inspection of the issue, to realize 
the error of its ways?
  Like many Americans, I was shocked by the Johnson and Eichman 
decisions overturning statutory protection for the flag. Now, that 
shock has subsided, and while I still question the correctness of those 
decisions, I no longer believe that a constitutional amendment is the 
best response to these horrific acts. The intervening years have 
allowed me to rethink my initial reaction to the Supreme Court's 
decisions, and while my love for the flag has not waned, neither have 
my respect for and devotion to the Constitution. If anything, the spate 
of proposed constitutional amendments in recent years--chief among them 
the misguided balanced budget amendment--and my continued studies of 
constitutional history have only increased my love for this magnificent 
document and my determination to prevent its abuse.
  Every time I read it--as with every time I read the Bible--I find 
something, it seems, that is new and intriguing and awe-inspiring.
  I have always promised my constituents that I will represent them to 
the best of my ability and with an open mind and an honest heart. 
Today, head and heart have convinced me to reconsider my beliefs. As 
Benjamin Franklin, the oldest man at the Constitutional Convention, put 
it, in addressing his fellow conferees at Philadelphia as they prepared 
to sign the Constitution--this is what he said--``For having lived 
long, I have experienced many instances of being obliged by better 
information or fuller consideration, to change opinions even on 
important subjects, which I once thought right, but found to be 
otherwise.''
  That has happened to me on several occasions. Certainly, it is true 
in the present instance.
  While I salute the patriotism of those who support this measure--I 
salute them--I hope that they will pause to consider its unintended but 
inevitable ramifications. Rather than inviting a surge in flag 
destruction; rather than spurring years of legal wrangling; rather than 
adding to our Constitution a provision that addresses a problem that 
occurs only infrequently, let us step back.
  Let us reconsider the matter. Let us rethink what we are proposing.
  Our Founding Fathers intended that amending the Constitution should 
be a difficult and laborious process--time consuming; cumbersome--not 
to be undertaken lightly. It sets a dangerous precedent, one that I 
have come to appreciate fully in recent years, to tinker with the 
careful checks and balances established by the Constitution. When it 
comes to our founding charter, history demands our utmost prudence.
  Every heart in this Chamber thrills at the sight of that flag, 
thrills at the rays of sunlight that play upon those stars and stripes, 
as we ride down or walk down a street on the Fourth of July. The flag! 
There is no other flag like it! None.
  But what gives each of us freedom of speech? What gives each of us 
the right to say what we want to say? What gives us that right? Not 
that flag--but the Constitution of the United States!
  What gives the fourth estate that sits in those galleries up there--
the press--what gives the press freedom to print, to televise, to 
broadcast? What gives this country freedom of the press? Not Old Glory, 
not that flag--but the Constitution of the United States!
  What gives my coal miners from West Virginia the right to come to 
these Capitol steps and to speak out and to thunder their criticism of 
the President of the United States or of the Congress of the United 
States, while Old Glory floats above the dome in the blue sky? What 
gives those miners that right? Not the flag, not Old Glory, soaring in 
the heavens--but the Constitution of the United States!
  What gives the truckers, what gives the farmers, what gives any group 
the right to come to Capitol Hill and to assemble and to petition the 
Government to obtain a redress of grievances? Not the flag--but the 
Constitution of the United States!
  There is the source of the right--there is the source--not in the 
dear old flag. The flag is the symbol of the Republic, the symbol of 
what the Constitution provides, but it is not the flag that provides 
it. It is the Constitution of the United States. That is why today I 
speak out against the amendment before the Senate, because it is that 
Constitution that provides us with the rights which all Americans 
enjoy, regardless of race, regardless of color, regardless of national 
origin, regardless of age or sex. It isn't that flag.
  I love it. How many times do we go the last mile of the way with a 
friend or a relative who sleeps beneath the closed lid of a steel 
coffin draped with the American flag? It is something to remember. He 
may have been a soldier, a sailor, a marine. He didn't die for that 
flag. He died for what that flag represents. And the instrument that 
provides what that flag represents is the Constitution of the United 
States.
  It is the real stuff!
  I think I am right to have changed my mind. I want to say again that 
I changed my mind because of long and serious study, not only of the 
Constitution of the United States, but also of the Articles of 
Confederation which was the first Constitution of the U.S., my study of 
the Federalist Papers, my study of the history of our country, the 
history of the colonies, the history of England, the struggles of 
Englishmen, and my studies of the ancient Romans. Because of these 
studies, in the beginning with the respect to the constitutional 
amendment to balance the budget and then with respect to the line-item 
veto, which I hate with a passion, and which the Supreme Court of the 
U.S. overthrew, I came to know more about the Constitution, about 
American constitutionalism, about the history of the Constitution, 
about the ratifying conventions, than I ever knew before. And it is the 
result of that long and assiduous study of constitutionalism in 
America, constitutionalism that had its roots not just at the 
Constitutional Convention of 1787, but in the states before the 
Constitution, and in the colonies before the states, and in the 
Biblical covenants before the colonies; roots that go back 1,000-2,000 
years. I have come to this conclusion, and I believe that I can best 
serve my country today by voting against this amendment.
  The flag lives because the Constitution lives, without which there 
would be no American Republic, without which there would be no American 
Senate, without which there would be no United States of America, only 
the balkanized States of America. Without that Constitution, there 
would be no American liberty, no American flag.
  That flag is the symbol of our Nation. In a way, we might say that 
that flag is the symbol of all we hold near and dear. That flag is the 
symbol of our Nation's history. That flag is the symbol of our Nation's 
values. We love that flag. But we must love the Constitution more. For 
the Constitution is not just a symbol, it is the thing itself!
  I yield the floor and suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. LEAHY. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.

[[Page S1862]]

  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. LEAHY. Mr. President, one of the privileges of serving in the 
Senate is the chance to hear debates--some good, some not so good. 
Periodically, we hear greatness in speeches. The Senate just heard 
greatness.
  I think all Senators would agree, whether they are for or against 
this constitutional amendment, that when the history of this debate is 
written, when the history books are written, the speech of the 
distinguished senior Senator from West Virginia, Mr. Byrd, will be in 
that recounting. This is the type of speech that students of 
constitutional history, students of the Constitution itself--and this 
Senator wishes there were more--will look to, and they will read and 
reread.
  We sometimes forget that every 6 years, those of us who are fortunate 
to serve here, to serve more than once, take a very specific oath of 
office. I can think of times when various people have administered this 
oath, usually the Vice President of the United States. But I recall 
watching the distinguished senior Senator from West Virginia administer 
that oath on a couple of occasions in his role as President pro tempore 
of the Senate.
  There was one big difference when he administered it than when all 
the various Vice Presidents, Republican or Democrat, administered it. 
The difference is, they had a card before them and they read the oath. 
The Senator from West Virginia didn't need a card before him to do it. 
The Senator from West Virginia would stand there, tell them to raise 
their right hand, and he would administer the oath. There was no 
prompting. There was no teleprompter. There was no card. There was no 
book. There was the mind that carries the history of the United States 
Senate there, when he would do it.
  I mention that oath because we swear we will uphold the Constitution, 
we will protect the Constitution. There could be no more solemn duty. 
If we are protecting the Constitution of this country, we are 
protecting the country itself. In this debate, that really is the 
issue.
  I have said over and over again, I do not want to see the first 
amending of the Bill of Rights in over 200 years. I think we know from 
our history there have been times when we have amended the 
Constitution. We did it to provide, after the tragedy of the death of 
President Kennedy--I was not serving here at that time; the 
distinguished Senator from West Virginia was--a means of succession of 
Vice President. And in this era of the nuclear age and all, it is good 
we have that. But these are matters of enormous consequence. These are 
matters that can go to the very survival of our Nation and that make it 
possible, actually necessary, to amend the Constitution.
  Let us not amend it simply because it is a matter of passing 
political favor.
  I have spoken too long, and I do not wish to embarrass my friend. I 
have had the honor of serving with him for just over 25 years. There is 
hardly a day goes by that I do not learn something from the 
distinguished Senator from West Virginia. Today the Nation learned from 
the Senator.
  Mr. DORGAN. Mr. President, will the Senator yield?
  Mr. LEAHY. I am happy to yield to the Senator from North Dakota.
  The PRESIDING OFFICER (Mr. Crapo). The Senator from North Dakota is 
recognized.
  Mr. DORGAN. Mr. President, let me briefly comment on the remarks made 
by the senior Senator from West Virginia. I know from having visited 
with him about this subject over some long while that he found this to 
be a difficult subject, not a simple subject, not an easy issue to 
resolve. I felt the same way about this issue. He spoke about the U.S. 
Constitution at great length today and all Members of the Senate will 
learn from that speech.
  I have told my colleagues previously that on the 200th birthday of 
the writing of the Constitution I was one of the 55 Americans who went 
into that room where the Constitution was written 200 years prior to 
that, when 55 men went into that room and wrote a Constitution. Two-
hundred years later, 55 people--men, women, minorities--went into that 
room. I was privileged to have been selected to be one of them. I have 
told the story before and people may get tired of hearing it, but I sat 
in that room--I come from a town of about 270 people, a small ranching 
area of Southwestern North Dakota. I sat in that room--the assembly 
room in Constitution Hall--200 years after the Constitution was 
written, the document that begins, ``We the people.''
  In that room, George Washington's chair is still in front of the 
room, where he sat as he presided over the constitutional convention, 
and Ben Franklin sat over on this side, and there was Madison and 
Mason; Thomas Jefferson was in Europe, but he contributed through his 
writings to the Bill of Rights. I thought to myself that this is a 
pretty remarkable country where a fellow from a town of about 270 
people can participate in a celebration of this sort.
  From that moment, I have been troubled by the proposition that some 
convey so easily of wanting to change the U.S. Constitution. I 
mentioned yesterday that we have had, I believe, 11,000 proposals to 
change the Constitution, 11,000. Among those, for example, was a 
proposal to have a President from the North during one term and then 
the requirement that the next term of the Presidency be filled by a 
President who comes from the southern part of the U.S. That was one 
idea.
  Fortunately, the Constitution is hard to amend. Since the Bill of 
Rights, only 17 times have we amended this document, and then in almost 
every case, it was to expand freedom and liberty. So I have had great 
difficulty with this issue. I love the flag and what it stands for. I 
am devoted to the flag and the Constitution and the principles on which 
this country was founded. I know the Senator from West Virginia is as 
well. I wanted to say how much I and my colleagues, I am sure, 
appreciate his presentations to the Senate not just today but on a 
recurring basis, reminding us of the timeless truths about who we are 
and about who we have been, about the rich and majestic history of our 
country and the principles that have allowed us to progress to the 
point now of the year 2000 as the oldest successful democracy in 
history.
  So I want to say thank you. As I say, this is a very difficult issue. 
I came to the same conclusion, that I did not feel I could amend the 
U.S. Constitution in this manner. It doesn't mean that I don't believe 
we ought to find a way, short of changing the Constitution, to provide 
sanctions for those who would desecrate America's flag. I just have not 
been able to make the leap of saying, yes, let's change the framework 
of the Constitution. I thank the Senator from West Virginia for his 
enormous contribution today.
  The PRESIDING OFFICER. The Senator from West Virginia.
  Mr. BYRD. Mr. President, I thank the senior Senator from Vermont and 
the senior Senator from North Dakota for their remarks. I also thank 
them for the courage they have displayed time and time again in 
protecting this founding document. I thank them for the inspiring 
leadership that the rest of us have had from watching them and 
listening to them. They, indeed, have done a tremendous service to the 
country, to the Senate, and to the Constitution. I thank them both from 
the bottom of my heart.

  The PRESIDING OFFICER. The Senator from Washington is recognized.
  Mr. GORTON. Mr. President, I ask unanimous consent that I be 
permitted to speak as in morning business, the time not charged under 
cloture.
  The PRESIDING OFFICER. Without objection, it is so ordered.

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