Congressional Record, Volume 146 Issue 37 (Wednesday, March 29, 2000)

[Congressional Record Volume 146, Number 37 (Wednesday, March 29, 2000)]
[Senate]
[Pages S1863-S1871]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

FLAG DESECRATION CONSTITUTIONAL AMENDMENT--Continued

Mr. LEAHY. Mr. President, in 1791, the State of Vermont, the State
that I am honored to represent, was admitted to the Union. Kentucky
followed. Congress then saw fit to change the design of the American
flag for a time to include 15 stars and 15 stripes, one for each State.
It was this flag, the one recognizing the addition of Vermont to the
Union, that flew over Fort McHenry in 1814, and inspired Francis Scott
Key to write the Star Spangled Banner.
Along with Vermonters and many others I find that flag inspirational,
as I do the American flag with 48 stars under which my family fought in
World War II. I remember the great pride my wife and I felt seeing the
current American flag with 50 stars being carried in formation at Paris
Island when my youngest son became the newest member of the U.S. Marine
Corps.
Fifty years after that famous battle that inspired our national
anthem in Baltimore's harbor, President Abraham Lincoln visited that
city as this country confronted its greatest test. It was a time in
which this nation faced grave peril from a civil war whose outcome
could not yet be determined. Many flags flew over various parts of the
United States and our existence as a nation was in doubt. President
Lincoln used the occasion to reflect on a basic feature of American
democracy.
As Professor James McPherson recently reminded us, Lincoln observed:
``The world has never had a good definition of the word liberty. And
the American people just now are much in need of one. We all declare
for liberty, but using the same word we do not mean the same thing.''
Through the course of this debate, it has seemed to me that all of us
here in this chamber would champion liberty. If any of us were asked,
we would say: Of course we do. When I listen to the debate, I have to
conclude that Lincoln's wish for a definition on which all of us would
agree remains very elusive.
Ultimately, the debate over this amendment turns on the scope we
think proper to give to speech which deeply offends us. For Congress to
limit expression because of its offensive content is to strike at the
heart of the First Amendment. Justice Holmes wrote that the most
imperative principle of our Constitution was that it protects not just
freedom for the thought and expression we agree with, but ``freedom for
the thought that we hate.'' He also wrote, that ``we should be
eternally vigilant against attempts to check the expression of opinions
that we loathe.''
Justice Robert Jackson made this point with unsurpassed eloquence in
a 1943 decision, West Virginia State Board of Education v. Barnette.
Unlike that small handful of wartime decisions upholding flag burning
statutes on which the proponents try to base their claim of an
expansive judicial tradition before the Johnson case, the Supreme
Court, even in 1943, during the difficult days of World War II,
recognized the fundamental tradition of tolerance that makes this
country strong. The Supreme Court in a very difficult decision, at the
height of world War II held that State school boards may not compel
their teachers and students to salute the flag. Justice Jackson wrote:

To believe that patriotism will not flourish if patriotic
ceremonies are voluntary and spontaneous instead of a
compulsory routine is to make an unflattering estimate of the
appeal of our institutions to free minds.
We can have intellectual individualism and the rich
cultural diversities that we owe to exceptional minds only at
the price of occasional eccentricity and abnormal attitudes.
When they are so harmless to others or to the State as those
we deal with here, the price is not too great. But freedom to
differ is not limited to things that do not matter much. That
would be a mere shadow of freedom. The test of its substance
is the right to differ as to things that touch the heart of
the existing order.
If there is any fixed star in our constitutional
constellation, it is that no official, high or petty, can
prescribe what shall be orthodox in politics, nationalism,
religion, or other matters of opinion or force citizens to
confess by word or act their faith therein.

[[Page S1864]]

What unifies our country is the voluntary sharing of ideals and
commitments. We can do our share toward that end by responding to crude
insults with a responsible action that will justify respect and
allegiance that has been freely given. Justice Brennan wrote in
Johnson:

We can imagine no more appropriate response to burning a
flag than waving one's own.

That is exactly how the American people respond.
Respect cannot be coerced. It can only be given voluntarily. Some may
find it more comfortable to silence dissenting voices, but coerced
silence can only create resentment, disrespect, and disunity. You don't
stamp out a bad idea by repressing it; you stamp it out with a better
idea.
My better idea is to fly the flag at home, not because the law tells
me to; not because there is something that says this is what I have to
do to show respect; I do it because, as an American, I want to.
I am immensely proud of being one of the two Senators who has been
given the opportunity to represent the State of Vermont. I fly that
flag out of pride. Frankly, I am an ornery enough Vermonter that if
there were a law that said as a Senator I had to fly that flag, I would
not do it. I do it because I want to do it.
It is with the same sense of pride that I saw my son march in uniform
with that flag flying. It is the same sense of pride when I see that
flag flying over this Capitol Building every day when I drive to work.
The French philosopher Voltaire once remarked that liberty is a guest
who plants both of his elbows on the table. I think what he meant by
that is that liberty is sometimes an unruly, even an unmannerly and
vulgar guest. Liberty demands we be tolerant even when it is hard to do
so.
Our freedoms in this country are protected by the constitutional
guarantee that dissent must be tolerated whether it is expressed in
polite and deferential tones or in a crude and repugnant manner. We are
a mature enough political community to know what every child knows:
Unlike sticks and stones, words and expressions need not hurt us. It
certainly does not justify the loss of rights that protect the
liberties of us all.
Especially despicable gestures are hard to tolerate, but we do so
because political expression is so central to what makes America great
and what protects the rights of each of us to speak, to worship as we
choose, and to petition our Government for redress.
As I have said before, I have taken such pride in going to countries
with dictators, countries that require a law to protect their flags and
their symbols, and in saying: We do not need such a law in our country
because in this great Nation of a quarter of a billion people, the
people protect our symbols, not because they are forced to do so but
because they want to do so.
I was brought up to believe the first amendment is the most important
part of our democracy. It allows us to practice any religion we want or
no religion if we want. It allows us to say what we want, and the
Government cannot stop us.
What does that mean? It means we are going to have diversity--
diversity in religion, diversity in thought, diversity in speech,
diversity that is guaranteed and protected in this Nation. And when you
guarantee and protect diversity, then you guarantee and protect a
democracy, because no real democracy exists without diversity. When you
exclude and stamp out diversity, then I guarantee, you stamp out
democracy, whether it is the Taliban or any of the totalitarian
governments of history. If diversity, dissent, and free speech are
stamped out, democracy goes with them.
American democracy has succeeded because we have found a way to live
with that unruly guest with his elbows on our table of which Voltaire
spoke, and to acknowledge acts which are disrespectful and crude and
may, nonetheless, be lawful.
We protect dissent because we love liberty, not because we oppose
liberty, but because we love it. The very impiety of these acts puts us
to the test as votaries of liberty.
Wendell Phillips, the great New England abolitionist, wrote:

The community which dares not to protect its humblest and
most hated member in the free utterance of his opinion, no
matter how false and hateful, is only a gang of slaves.

No man disagreed more vehemently with Wendell Phillips on the burning
issues of their day than Senator John C. Calhoun of South Carolina. Yet
Senator Calhoun came to much the same conclusion in a speech on the
Senate floor in 1848--more than 150 years ago. He said:

We have passed through so many difficulties and dangers
without the loss of liberty that we have begun to think that
we hold it by divine right from heaven itself. But it is
harder to preserve than it is to obtain liberty. After years
of prosperity, the tenure by which it is held is but too
often forgotten; and I fear, Senators, that such is the case
with us.

I represent a State that has a proud tradition of defending liberty,
a State that encourages open debate. We are the State of the town
meeting. You have never heard open debate, whether as a Member of this
great body or the other legislative body, until you have been to a
Vermont town meeting. There is debate, there are expressions, there is
heat, and there is often light.
I am proud that in 1995, the Vermont Legislature chose the first
amendment over the temptation to make a politically popular endorsement
of a constitutional amendment regarding the flag. The Vermont House
passed a resolution urging respect for the flag and also recognizing
the value of protecting free speech ``both benign and overtly
offensive.'' Our Vermont Attorney General has urged that we trust the
Constitution, not the passions of the times.
But Vermont's actions are consistent with our strong tradition of
independence and commitment to the Bill of Rights. Indeed, Vermont's
own constitution is based on our commitment to freedom and our belief
that it is best protected by open debate. In fact, Vermont did not join
the Union until the Bill of Rights was ratified and part of this
country's fundamental charter.
We are the 14th State in this Union. But we waited because we were so
protective of our own liberty. At one time, we declared ourselves an
independent republic. We wanted to make sure our people had their
liberties protected. We in Vermont waited until the Bill of Rights was
part of the Constitution.
Following that tradition, this Vermonter is not going to vote to
amend the Bill of Rights for the first time since it was adopted, and
certainly not going to be the first Vermonter to do that.
Vermont sent Matthew Lyon to Congress. He cast the decisive vote of
Vermont for the election of Thomas Jefferson when that election was
thrown into the House of Representatives. He was the same House Member
who was the target of a shameful prosecution under the Sedition Act in
1789 for comments made in a private letter. He was locked up.
Vermont showed what they thought of the Sedition Act. They showed
what they thought of trying to stifle free speech. Vermont said: Fine,
Matthew Lyon is in jail. We will still reelect him to Congress. And, by
God, we did. Why? Because we are saying: Do not trample on our right of
free speech.
Vermont served the Nation again in the dark days of McCarthyism when
I think probably one of the most remarkable and praiseworthy actions of
any Vermont Senator, certainly in the 20th century--the outstanding
Vermont Senator, Senator Ralph Flanders--he stood up for democracy in
opposition to the repressive tactics of Joseph McCarthy. When so many
others ran for cover in both parties--both Republicans and Democrats--
Senator Ralph Flanders of Vermont, the quintessential Republican,
conservative, a businessman, came to the floor of the Senate and said
enough is enough, and asked for the censure of Senator McCarthy.

Vermont's is a great tradition that we cherish. It is one that I
intend to uphold.
The New York Times had it right earlier this week when it wrote in
its editorial, on Monday:

If the Senate truly respected the Constitution it is sworn
to uphold, it would not be trifling with the Bill of Rights
and its precious guarantee of freedom of speech. Yet that is
exactly what the Senate is doing as it considers the so-
called flag desecration amendment--a mischievous addition to
the Constitution that would weaken the right of free
expression by allowing federal laws banning physical
desecration of the flag.

The Washington Post also opposed this amendment in a recent
editorial.

[[Page S1865]]

It noted that flag burning is ``only one among many types of offensive
expression that the First Amendment has protected throughout American
history.'' Then they added:

The principle that ``Congress shall make no law''
restricting speech loses much of its power when exceptions
begin turning the ``no'' into ``only a few.'' The political
points senators win by supporting this amendment are not
worth the cost.

The first amendment says: ``Congress shall make no law.'' It does not
say: Congress shall not make a bunch of laws or Congress shall not make
some laws or Congress shall not make little laws versus big laws
restricting speech, or Congress should not make laws on Monday versus
Friday restricting speech.
It says: ``Congress shall make no law.''
I remember being at an oral argument in the U.S. Supreme Court when I
was a young law student, and Hugo Black was saying: I read the
Constitution, which says ``Congress shall make no laws'', to mean
``Congress shall make no laws.'' I find it pretty clear.
The Chicago Tribune said this:

The amendment is a gross overreaction to a non-problem.
Incidents of flag burning are exceedingly rare, and they do
no harm beyond causing legitimate disgust among patriotic
Americans. Disgust, however, is not an adequate reason to
take the extraordinary step of altering the nation's founding
document--and altering it to curtail one of our most
fundamental liberties.

So many times I read editorials from the Washington Times, especially
those that say that Congress takes, too often, a liberal bend. The
Washington Times today said this in their editorial--and they oppose
this amendment--they said they oppose it because ``it would be the only
standing constitutional amendment to expand--not curtail--the power of
the federal government.''
They went on to say:

Laws reflect a nation's culture and Constitution. Both
govern a people's relationship with the government.
Sometimes, however, the two collide and the nation's leaders
must decide between expressing the culture through law or
abiding by constitutional restraints that limit government
powers to do so. . . . The founders adopted the first 10
amendments, now called the Bill of Rights, as more than
simply limits on Government's power, but rather an
enumeration of rights on which Government could not trample.

Think of that. They are not saying, here are some extra powers we
have in the Government. Rather, they are saying no to the Federal
Government. These are rights you cannot step on. These are rights that
belong only to the American people. These are rights that do not belong
to a government. They do not belong to the Congress, to the executive
branch, or the judicial branch. They belong to all of us, today a
quarter of a billion proud Americans.
The Washington Times went on to say:

Conservatives in the Senate should take this opportunity to
burn a flag--the white flag the faint-of-heart seem to fly on
every tough issue. It is time to say, ``We trust the American
people with their flag''--with a vote against this
constitutional amendment.

That is what I say: Trust the American people. The vast majority of
the people in this great country are patriotic. They respect the
symbols of our Government. There isn't a rash of flag burning around
the Nation. You don't see people running out to do it because we
respect our flag, we respect our Nation, and we don't need a law to
tell us to do that. In fact, that respect is diminished if we are told
we have to respect the symbols of our Government rather than doing it
from our heart.
Through this debate this week, some proponents of the constitutional
amendment expressed their view that this is a nation in moral decline
and that amending the Constitution to punish flag burning is thereby
justified. I disagree. I would not put down the United States that way.
I believe this Nation is strong. I believe there is far more civic
virtue to the American people than some credit. I know that is the case
in my State of Vermont. I know it when I go on line each week with the
children of our State in grade schools and high schools around Vermont
answering their questions. I sense a civic pride. I do not sense a
moral decline. I sense a great nation moving into an even greater
century.
I am not a fan of what in some quarters passes for culture nowadays,
but let us not have a constitutional amendment to lash out at crude
cultural influences. Let us discuss the issue of civic virtue. In fact,
we in the Senate play a role, an important one, in setting the level of
civic virtue in this Nation. So maybe a good place to start would be
with ourselves and with our institution. It is not just what we say
here that is important; it is what we do here.
Instead of telling the American people, the rest of the American
people beyond the 100 here, what they can and cannot do, maybe we
should talk about what we do and how we do it. We honor America when we
in the Senate do our jobs, when we work on the matters that can improve
the lives of ordinary Americans.
I began this debate by urging the Senate to conclude action on the
juvenile crime conference. I urged the Senate to vote on increasing the
minimum wage, to confirm judges our courts and people need. We have 77
vacancies today. I urged the Senate to pass a Patients' Bill of Rights
and privacy legislation and other legislation that can make a
difference today. Then we set an example for the Nation. As this debate
concludes and after we vote on this, let us return to that hope and
message.
Ours is a time of relative peace and prosperity. We should praise
that. Because of that, it is certainly not the time, if there is any,
to tinker with the fundamental framework that has helped make this
country the land of opportunity and diversity and vitality it has been
for more than 200 years.
The proposed amendment to the Constitution would do harm to the first
amendment--protections that gird us all against oppression, especially
oppression of momentary majority thought. It violates the precept laid
down more than 200 years ago that ``he that would make his own liberty
secure must guard even his enemy from oppression.'' It undercuts the
principle that a free society is a society where it is safe to be
unpopular. A nation may lose its liberties in an instant of imposed
orthodoxy.

I am sure many of us have read the letter written in 1787 by Thomas
Jefferson in which he observed:

If it were left to me to decide whether we should have a
government without newspapers, or newspapers without a
government, I should not hesitate a moment to prefer the
latter.

For me, presented with the stark choice between an undefiled flag and
an undefiled Bill of Rights, I, too, must choose the latter.
If somebody were to cruelly desecrate the flag I proudly fly at my
home, then I would replace that flag. I would buy a new flag. But if
somebody misplaces, changes, or diminishes the Bill of Rights that
protects me, protects the other 99 Senators, that protects a quarter of
a billion Americans, I can't replace that. I can't go to the store and
buy a new Bill of Rights. I cannot start the process of 200 years ago
over again. I cannot go back and say, because we have spent 200 years
growing and maturing as a nation in protecting our rights under the
Bill of Rights, now we can ignore all that because we have changed the
Bill of Rights.
Don't diminish it. There are a lot of things that are unpopular, but
we protect them. I think of the debate when I was a young prosecutor.
Decisions would come down saying you had to warn criminal suspects of
their rights--first the Escobedo case and then the Miranda case. I
remember people, both in law enforcement and outside, saying we have to
amend the Constitution. Some said we had to impeach the whole Supreme
Court. We have to amend the Constitution. How dare they say these
criminals must be warned of their rights? We want to be warned of our
rights because we are not criminals. But the guilty accused have to be
warned of their rights? What a terrible idea.
We got through that. What happened? Training of law enforcement got a
lot better. The police got a lot better, the courts got a lot better,
the prosecutors got a lot better, and our Nation got better. Today
there are still people who are arrested or stopped by the police who
are totally innocent, and they have their rights. They can stand on
those rights. How many times have we said: I am an American; I have my
rights? Well, it is true. We have wonderful rights in this country.
That is why we are the strongest democracy in the world. Let's not
diminish those rights.

[[Page S1866]]

Ours is a powerful constitution, all the more inspiring because of
what it allows and because we protect each other's liberty. Let us be
good stewards. Let us leave for our children and our children's
children a constitution with freedoms as great as those bequeathed to
us by the founders, patriots and hard-working Americans who preceded
us. If we do that, successive generations will bless us, they will
praise us, we will have a stronger nation.
I thank my colleagues for their attention and courtesy and yield the
floor.
I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The legislative clerk proceeded to call the roll.
Mr. HATCH. I ask unanimous consent that the order for the quorum call
be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. HATCH. Mr. President, we have had a productive and educational
debate concerning our proposed constitutional amendment to protect the
flag. We have considered--and defeated by overwhelming votes--two
significant amendments which were aimed at the heart of this amendment.
A clear majority of the Senate has its mind made up on this resolution,
and it is proper that we are now preceding to a vote.
The events of the last three days could cause one to question the
depth of feeling my colleagues have for their argument that this flag
protection constitutional amendment would erode free speech rights
guaranteed by the first amendment. Many of these same Senators have
denounced flag desecration and voted for statutes which would allegedly
protect the flag. In 1989, the Congress responded to the Supreme
Court's decision in Texas v. Johnson, which held that State flag
protection statutes were unconstitutional, by enacting the Flag
Protection Act. Ninety-one Senators--let me repeat, 91 Senators--voted
in favor of that statute, which provided that:

Whoever knowingly mutilates, defaces, physically defiles,
burns, maintains on the ground, or tramples upon any flag of
the United States shall be fined under this title or
imprisoned for not more than one year, or both.

That was the statute that 91 Senators in this body in 1989 voted for.
Clearly, 91 Senators believed in 1989 that flag desecration should be
stopped; that people who knowingly mutilate, deface, physically defile,
burn, or trample upon any flag of the United States should be prevented
from engaging in this sort of conduct. Clearly, 91 Senators believed in
1989 that prohibiting flag desecration would in no way erode free
speech rights guaranteed by the first amendment, and voted for the bill
in response to a Supreme Court decision that had said otherwise.
I remember those arguments. We can do this by statute. We have had
the same arguments in this debate, all of which are just as specious as
they were back then.
Yet, of those 91 Senators who voted to outlaw flag desecration in
1989 to prohibit this form of expressive conduct, 18 who are still here
will vote against the flag protection constitutional amendment. In
other words, of the more than 30 opponents of the proposed
constitutional amendment, 18 voted in 1989 to prohibit flag
desecration.
Let me read directly from the joint resolution, the constitutional
resolution:

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

In other words, we want to give them the power so that they can,
again, vote for their beloved statute. They can't vote for it now
because it would be declared unconstitutional again. I think the
limited version presented here, the McConnell statute, which would not
do much to begin with, is likewise unconstitutional.
The point was that 18 of those who will vote against the flag
protection constitutional amendment today, at least 18 of the more than
30 opponents of this proposed constitutional amendment, voted in 1989
to prohibit flag desecration.
Just yesterday we voted on whether to adopt the Flag Protection Act
of 1999. That is a more narrow flag desecration statute offered by
Senator McConnell. Now some Senators voted against Senator McConnell's
amendment because they do not believe flag desecration is a problem in
our society, that it is too trivial of an issue for the Senate even to
consider. Other Senators, including myself, voted against the McConnell
amendment because we believe that under the Supreme Court precedents,
and given the present composition of the Court, it would be struck down
as the other statutes were. Yet 36 Senators voted in favor of the
McConnell amendment, a statute prohibiting flag desecration. Clearly,
these 36 Senators do not believe that prohibiting flag desecration will
erode free speech rights guaranteed by the first amendment. Of these 36
Senators, 30 have indicated they will vote against the flag protection
constitutional amendment today.
I must ask these Senators: Do you believe in flag protection or not?
Or are you just playing political games? If they do believe in flag
protection, they should vote for this constitutional amendment, which
is the only constitutional way of protecting our flag. If not, they
should have the courage to repudiate the votes they cast yesterday, in
1995, and in 1989, and to admit that they do not want to prohibit flag
desecration in any way. They can't have it both ways unless they are
just playing politics. I would never accuse anybody in this body of
doing something as denigrating as playing politics.
Some of my colleagues contend our country has achieved greatness in
its two centuries of existence because they say we value tolerance over
all else. Yes, we are tolerant of everything that is rotten and we are
intolerant of many things that are good. They say if we pass this
constitutional amendment and then adopt legislation prohibiting flag
desecration, we will become Iran, Iraq, North Korea, Libya, Cuba, and a
host of other repressive and dictatorial regimes that do ban
desecration of their respective flags. They even suggest we will become
like South Africa during apartheid or like Nazi Germany if we protect
our flag. This argument is not only specious, it is absolutely
ridiculous. It is insulting.
Indeed, I must say their argument is full of historical revisionism.
The United States of America prohibited desecration of the American
flag during the first two centuries of its existence. If this
constitutional amendment is adopted and implementing legislation is
passed, the United States of America will not somehow become an
intolerant, repressive, dictatorial police state. No, the United States
of America's laws will be just as they were for over 200 years before
this lousy decision by five people on the Supreme Court, versus four,
showing it was hotly contested. Even they weren't sure what they were
doing.
I find that a sense of elitism is creeping into the Senate. In fact,
I don't fear it, I know that is the case. We have amongst us people who
seem to think the Senate has more important things to do than to listen
to, and act on, the views of the overwhelming majority of American
citizens who want the flag protection constitutional amendment. I find
this elitism profoundly troubling. As a matter of fact, all we are
asking is for this body to give a two-thirds vote, as the House did, so
we can submit this to the people in the respective States and let them
decide once and for all whether or not they want to protect the flag.
The American people do not believe that the flag of the United States
of America is just a piece of cloth or just another symbol. The
American people know that the flag is the embodiment of our heritage,
our liberties, and indeed our sovereignty as a nation, as Madison
indicated--the author of the Constitution. The American people are
deeply offended and morally outraged when they see the flag humiliated
and the Government powerless to defend it.
I have heard both sides of this debate cite leaders in the military,
and I am sure that some of these people who are opposed to our
amendment today are good people. But let me quote Gen. Norman
Schwarzkopf, commander of U.S. and allied forces during the gulf war.
He wrote:

The flag remains the single, preeminent connection to each
other and to our country. Legally sanctioned flag desecration
can only serve to further undermine this national unity and
identity that must be preserved.

[[Page S1867]]

There are tens of thousands of veterans living in our country today
who have put their lives on the line to defend our flag and the
principles for which it stands. Those are the fortunate ones who were
not required to make the ultimate sacrifice. For every one of those,
there is someone who has traded the life of a loved one in exchange for
a flag, folded at a funeral. Let's think about that trade--and about
the people who made that trade for us--before deciding whether the flag
is important enough to be addressed by the Senate.
Let's think about the meaning of majority rule before we dismiss the
feelings of the American public. Would it really trivialize the
Constitution, as some of these critics suggest, to pass an amendment
that is supported by the vast majority of Americans? The Constitution
itself establishes the process for its own amendment. It says that the
Constitution will be amended when two-thirds of the Congress and three-
fourths of the States want to do so. It does not say that this
procedure is reserved for issues that some law professors, or even some
Senators, think are important. If government by the people means
anything, it means that the people can decide the fundamental questions
concerning the checks and balances in our government. It means the
people can choose whether flag desecration is against the law. The
people have said they want Congress to protect the American flag.
Because the flag amendment reflects the will of the people, I believe
passage and ratification of this amendment is ultimately inevitable. It
may not pass the Senate today, but it will pass the Senate. The votes
in the past few years demonstrate that momentum--as well as the
fulfillment of duty--is on our side. In 1989, 51 Senators voted for the
amendment. That was it, 51. In 1990, there were 58 votes in favor. In
1995, 63 Senators voted for the amendment. And, today, we hope we will
at least get that many. We have had some reversals, as you have seen.
But the trend of support will continue until we get the 67 needed to
pass this resolution and send the constitutional amendment to the
States for ratification. I personally will not stop fighting for the
flag amendment until it passes the Senate with the requisite two-thirds
vote.
I came up the hard way. I had to earn everything I have, and I have
earned it the hard way. I learned a trade as a young man. I worked as a
janitor to get through school. I have never been part of the elite, and
I wouldn't be there if I could be. I have to tell you, this place is
filled with elitism among those who are voting against this amendment
today.
Frankly, I get a little tired of the elitism in this country. It is
throughout our country, and it is elitism that is allowing the savaging
of our values to occur today in this country. It is the elite who are
basically upholding things that force us to be tolerant, as they say,
of some of the very offensive acts that occur in our society. They say
we should be tolerant, not to do anything about people who defecate on
our flag or urinate on our flag or burn our flag with contempt or
trample on it. They don't seem to see any real problem with that,
although they condemn it vociferously without doing one doggone thing
about changing this culture and letting the American people know we are
going to stand for something.

What better thing can you stand for, other than your families--and
this is part of standing for families in my book--what better thing to
stand for than standing up for this national symbol that unites us and
brings us together? Just think about it.
In conclusion, the flag amendment is the very essence of government
by the people because it reflects the people's decision to give
Congress a power that the Supreme Court has taken away on a 5-4 vote.
The four who voted against the five--in other words voted to uphold the
right of the Federal Government and the States to ban desecration of
the flag--those four fought very hard for their point of view. They
happen to be right.
I urge all my fellow Senators to do the right thing for the American
people. I urge everybody in America to hold us responsible for not
doing so. I am asking the folks out there in America to start getting
excited about this. If we could pass this amendment through the Senate,
since the House has already done it, I guarantee we would create the
biggest debate on values this country has seen in years in every one of
our 50 States. If we did that, that alone would justify everything we
are talking about today, let alone standing up for the greatest symbol
of any country in the world today. I think we ought to do it. I hope my
fellow Senators will do the right thing and vote for this resolution so
the people, through their State legislatures, can decide for themselves
whether or not they want their elected representatives to enact a law
prohibiting the physical desecration of the American flag.
We know we do not have the votes today, but we are not going to stop
until this amendment is approved. Sooner or later we will get enough
people here who feel strongly enough about this to get the
constitutional amendment passed. I venture to say, if we could pass
this constitutional amendment, at least 38 States--and, frankly, I
think all 50 States would ratify this amendment--I believe the people
out there would ratify this amendment and we would have more than 80
percent in the end, and people would feel very good about it.
I know one thing, those seven Congressional Medal of Honor recipients
who were standing with us yesterday as we had a press conference on
this, it would make their lives, as it would for all these veterans
throughout this country who have sacrificed for you and me that we
might be free. I would like to see that happen. If it does not happen
today, don't worry, we will be back because we are not going to quit
until we win on this amendment. When we do, it will be a great thing
for this country.
I want to thank the dedicated staff of the Senate Judiciary Committee
for their hard work on this important proposed constitutional
amendment--S.J. Res. 14. In particular, I would like to commend Alex
Dahl, Catherine Campbell, Kyle Sampson, and Ed Haden. These fine
lawyers and professional staff spent countless hours getting us to this
point. I also want to thank the committee's chief counsel, Manus
Cooney, for his assistance and counsel. On the minority side, let me
acknowledge Bruce Cohen for his professionalism and spirited
opposition.
Many other staffers were helpful including Jim Hecht and Stewart
Verdery of our leadership staff. I think these staffers know that this
debate was an important one and one of significance.
Mr. President, I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The senior assistant bill clerk proceeded to call the roll.
Mr. LEAHY. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. McCAIN. Mr. President, I rise today in support of Senate Joint
Resolution 14. It is with great honor and reverence that I speak in
support of this resolution, a bipartisan constitutional amendment to
permit Congress to enact legislation prohibiting the physical
desecration of the American flag.
Let me explain my support by recalling the sacrifice for flag and
country of a prisoner of war I had the honor of serving with.
I spent 5\1/2\ years at the Hanoi Hilton. In the early years of our
imprisonment, the North Vietnamese kept us in solitary confinement of
two or three to a cell. In 1971, the North Vietnamese moved us from
these conditions of isolation into large rooms with as many as 30 to 40
men to a room. This was, as you can imagine, a wonderful change. And it
was a direct result of the efforts of millions of Americans, led by
people like Ross Perot, and Nancy and Ronald Reagan, on behalf of a few
hundred POW's, 10,000 miles from home.
One of the men who moved into my cell was Mike Christian. Mike came
from Selma, Alabama. He didn't wear a pair of shoes until he was 13
years old. At 17, he enlisted in the U.S. Navy. He later earned a
commission. He became a Naval aviator, and was shot down and captured
in 1967. Mike had a keen and deep appreciation for the opportunities
this country--and our military--provide for people who want to work and
want to succeed.

[[Page S1868]]

The uniforms we wore in prison consisted of a blue short-sleeved
shirt trousers that looked like pajamas and rubber sandals that were
made out of automobile tires.
As part of the change in treatment, the Vietnamese allowed some
prisoners to receive packages from home. In some of these packages were
handkerchiefs, scarves and other items of clothing. Mike got himself a
piece of white cloth and a piece of red cloth and fashioned himself a
bamboo needle. Over a period of a couple of months, he sewed the
American flag on the inside of his shirt.
Every afternoon, before we had a bowl of soup, we would hang Mike's
shirt on the wall of our cell, and say the Pledge of Allegiance. I know
that saying the Pledge of Allegiance may not seem the most important or
meaningful part of our day now. But I can assure you that--for those
men in that stark prison cell--it was indeed the most important and
meaningful event of our day.
One day, the Vietnamese searched our cell and discovered Mike's shirt
with the flag sewn inside, and removed it. That evening they returned,
opened the door of the cell, called for Mike Christian to come out,
closed the door of the cell, and for the benefit of all of us, beat
Mike Christian severely.
Then they opened the door of the cell and threw him back inside. He
was not in good shape. We tried to comfort and take care of him as well
as we could. The cell in which we lived had a concrete slab in the
middle on which we slept. Four naked light bulbs hung in each corner of
the room.

After things quieted down, I went to lie down to go to sleep. As I
did, I happened to look in the corner of the room. Sitting there
beneath that dim light bulb, with a piece of white cloth, a piece of
red cloth, another shirt and his bamboo needle, was my friend Mike
Christian, sitting there, with his eyes almost shut from his beating,
making another American flag. He was not making that flag because it
made Mike Christian feel better. He was making that flag because he
knew how important it was for us to be able to pledge our allegiance to
our flag and our country.
I believe we have an inviolable duty to protect the right of free
speech--one of our most precious inalienable rights and the linchpin of
a healthy democracy. I do not believe, however, that guaranteeing
respect for our national symbol by prohibiting ``acts'' of desecration
impinges on political ``speech.''
As long as citizens are free to speak out on any matter and from
whatever point of view they wish, as our forefathers intended, it does
not seem burdensome to me that we accord some modicum of respect to the
symbol of those precious freedoms for which so many of our countrymen
have laid down their lives.
Some view these efforts to protect the flag as political demagoguery
or empty symbolism. I see the issue differently. The flag represents
each and every one of us, regardless of race, religion or political
diversity. Tolerating desecration of the flag is silent acquiescence to
the degeneration of the broader values which sustain us as a free and
democratic nation--the ramifications of which are far more profound
than mere symbolism.
For these reasons, I support this constitutional amendment to ban
flag desecration. I voted for such language in previous Congresses, but
unfortunately, we have always fallen short of the 67 affirmative votes
necessary for approval.
Whenever we send our young men and women into harm's way, we must
remember that these same men and women have taken a solemn oath which
this flag symbolizes. Let us honor their commitment and honor our great
nation. I urge my colleagues to support the flag protection amendment.
Mr. LEVIN. Mr. President, I cannot support the proposed
constitutional amendment.
The American flag is the premier icon of our national freedom. It is
an irreplaceable reminder of liberty, sacrifice, and patriotism. To
deliberately desecrate or burn a flag is an insult to anyone who has
fought to defend it. But to deliberately weaken the First Amendment
rights of all Americans cannot be the answer to those who attack a
symbol of freedom.
We love our flag for obvious reasons, and true Americans treat it
with respect. A person who destroys such an important symbol should
face the scorn of all decent women and men. But we should not allow the
misguided actions of a few individuals to jeopardize the rights and
freedoms of all Americans.
The Supreme Court has ruled that such an attack on the flag is a
protected form of speech under the First Amendment to the Constitution.
If we pass this amendment, and the States ratify it, we alter the
Bill of Rights for the first time in our nation's history. For more
than 210 years, the Bill of Rights--which protects our most basic
freedoms--has served us well. Although I love the flag, I also love the
Bill of Rights and the Constitution. When we pledge allegiance to the
flag, in the same breath, we pledge allegiance to the Republic for
which it stands.
Mr. President, Senator John Glenn, a true American hero, reflected
these concerns in his testimony before the Judiciary Committee. He
said:

[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.
The flag is the nation's most powerful and emotional
symbol. It is our most sacred symbol. And it is our most
revered symbol. But is it a symbol. It symbolizes the
freedoms we have in this country, but it is not the freedoms
themselves.

General Colin Powell has said:

I would not amend that great shield of democracy to hammer
a few miscreants. The flag will be flying proudly long after
they have slunk away.

We should not alter the basic charter of our liberties just to
address the few incidences of flag burning in this country. Despite the
attention it receives, flag burning is relatively infrequent. According
to one expert, there have been only 200 reported incidences of flag
burning in the history of our nation. That amounts to less than one
case per year. The Congressional Research Service has listed 43 flag
incidents between January 1995 and January 1999.

Even if this constitutional amendment were adopted, and the physical
desecration of the flag were prohibited, it would not necessarily yield
the intended results: the preservation of our glorious symbol.
As the Port Huron Times Herald suggested on June 26, 1999, flag
desecration may not necessarily be flag burning, but the trivialization
of the flag:

How glorifying is it to see the Stars and Stripes
emblazoned on paper napkins destined to be smeared with
ketchup and barbecue sauce and tossed in a trash can?
How respectful is it to wrap ourselves in Old Glory beach
towels? Sip our coffee from red, white and blue mugs? Start
our car from a flag-emblazoned key chain?
We shouldn't worry about people burning the flag. It just
doesn't happen. We should worry about trivializing a glorious
symbol into something as meaningless as a paper napkin.

I oppose the proposed constitutional amendment because it would amend
our Bill of Rights for the first time, but I do support a statutory
prohibition on flag desecration. The McConnell-Conrad-Dorgan statutory
approach is preferable because it provides protection of the flag
through enactment of a statute, and subsequently, does not weaken our
First Amendment freedoms.
If we love the flag, we will not only preserve the sanctity of the
cloth, but the freedoms for which it stands. No matter how abhorrent
the action of flag burning may be, I see great danger in amending the
Bill of Rights and curtailing freedoms enumerated in the Constitution,
the very documents that give our flag its meaning.
Mr. MURKOWSKI. Mr. President, I rise as an original co-sponsor of
S.J. Res. 14, a resolution proposing that the Constitution be amended
to permit Congress to enact statutes to protect against the physical
desecration of the American flag. Although it is rare that I support
amending our Constitution, in this instance the Supreme Court has made
clear that a federal statute is incapable of protecting the national
symbol of America.
There is no doubt in my mind that every single Member of the Senate
abhors the idea that someone would desecrate the American flag. Yet the
vote

[[Page S1869]]

on this amendment will be far from unanimous. That is because many of
my colleagues believe that adoption of this amendment somehow
represents an attack on the First Amendment's guarantee of freedom of
speech. In my view, this amendment in no way threatens the freedoms
embodied in the First Amendment.
The freedom of speech that is guaranteed in the first amendment of
the Constitution is not unlimited. The Supreme Court has long
recognized that the law must strike a balance between society's and
government's interest and the interests of the individual. More often
than not, the Court has come down on the side of the individual.
However, the Court has recognized that society's interest in public
safety outweighs an individual's right to freely shout ``Fire'' in a
crowded theater. The Court has balanced society's interest in national
security with a speaker's interest in disclosure of state secrets and
has upheld restrictions on such speech.
By this amendment, we are not challenging the first amendment's
guarantee of freedom of speech. Anyone in America is guaranteed the
right to criticize nearly every aspect of American society and American
government. Nothing in this amendment precludes such speech.
Instead, this amendment speaks to the issue of desecrating the symbol
of this country. A symbol that is recognizable throughout the world as
the symbol of this 224 year old democracy. A democracy that has asked
its men and women to fight all over the world to preserve democracy and
freedom against tyranny.
When in 1989 the Supreme Court by a 5-4 decision struck down a Texas
Flag desecration statute, Justice Stevens dissented and eloquently
stated why the Court had reached the wrong conclusion about the First
Amendment in this case. Let me quote Justice Stevens:

The Court is . . . quite wrong in blandly asserting that
respondent ``was prosecuted for his expression of
dissatisfaction with the policies of this country, expression
situated at the core our First Amendment values.'' Respondent
was prosecuted because of the method he chose to express his
dissatisfaction [burning an American Flag] with those
policies. Had he chosen to spray-paint--or perhaps convey
with a motion picture projector--his message of
dissatisfaction on the facade of the Lincoln Memorial, there
would be no question about the power of the Government to
prohibit his means of expression. The prohibition would be
supported by the legitimate interest in preserving the
quality of an important national asset. Though the asset at
stake in this case is intangible, given its unique value, the
same interest supports a prohibition on the desecration of
the American flag.

Would anyone disagree with Justice Stevens' suggestion that the first
amendment does not permit an individual to desecrate the Lincoln
Memorial by spray painting his political views on the Memorial? Surely
that would be a criminal act and no one would suggest that the spray
painter's first amendment rights had somehow been invaded.
Yet, I ask the question: What is the difference between barring
someone from desecrating the Lincoln Memorial and barring someone from
desecrating the American flag? Why are the marble and mortar of the
Memorial more important than the intangible values represented by the
American Flag? Does it make a difference that the American taxpayer
paid for the construction and upkeep of the Memorial and therefore as
public property an act of desecration is actionable?
I do not think that the payment of taxes to construct and maintain
the Memorial should make a difference. Are we to compare the payment of
taxes to construct a Memorial with the sacrifice of the hundreds of
thousands of men and women who fought in wars over two centuries to
preserve the democratic ideals embodied in our Constitution? I think
not.
As I said earlier, I am not a frequent supporter of amending the
Constitution. I would prefer that we adopted a statute to prevent flag
desecration. But those who argue for a statute ignore the fact that 11
years ago Congress adopted a statute--the Flag Protection Act--which
outlawed desecration of the flag. That Act was adopted in response to
the Supreme Court's decision striking down the Texas statute and along
with that state law, the state flag protection laws of 47 other states.
Unfortunately, one year later, the Supreme Court struck down the Flag
Protection Act, again by a 5-4 vote.
So the only realistic way that we can outlaw flag desecration is by
adopting a Constitutional Amendment. Let the people of the 50 states
decide whether our flag deserves such protection. I urge my colleagues
to support S.J Res. 14.
Mr. LIEBERMAN. Mr. President. I rise today to explain my vote on the
Flag Amendment. This is one of the most difficult votes I will have to
cast during my tenure in the United States Senate. Words cannot fully
express the anger I feel towards those who desecrate the American Flag.
The Flag is a symbol of what is great about our country. It is the
standard we rally around in war and in peace, in mourning and in
celebration and, ultimately, in life and in death. It unites us in our
past and in our future. When someone desecrates the Flag, they in a
sense strike at all of those things.
It is because I find desecrating the Flag to be so abhorrent and
despicable an act, that I will, as I have in the past, support using
any statutory means possible to prohibit Flag desecration. But after
thinking long and hard about this issue, I have decided that I will
again vote against this constitutional amendment. Although I recognize
that a statute cannot do the whole job, I cannot vote to amend the
Constitution's Bill of Rights for the first time ever in a manner that
would restrict, rather than expand, individual liberties. In my view,
however great a symbol the Flag is, our Constitution and its Bill of
Rights are all that and more. More than a symbol of liberty, they are
liberty's real guardian and its true protector. They are not only what
unites us, but also what keeps our more than 200-year-old experiment in
self-government working. They are the best the Founders of this great
nation left to us--a lasting testament to the Framers' brilliant
insight that for any people to remain truly free and capable of self-
government, that there must be some limits to what the State can do to
regulate the speech and political behavior of its citizens. The Flag is
an important symbol, but the Bill of Rights is what the Flag
symbolizes. We must be extremely cautious in altering the freedoms that
this great document guarantees, lest we diminish the ideals for which
our Flag stands.
My former colleague Senator John Glenn--an individual whose
patriotism and love of country none could doubt--expressed this view
well when he submitted a statement to the Judiciary Committee last
April. He explained:

The flag is the nation's most powerful and emotional
symbol. It is our most sacred symbol. And it is our most
revered symbol. But it is a symbol. It symbolizes the
freedoms that we have in this country, but it is not the
freedoms themselves. That is why this debate is not between
those who love the flag on the one hand and those we do not
on the other. No matter how often some try to indicate
otherwise, everyone on both sides of this debate loves and
respects the flag. The question is, how best to honor it and
at the same time not take a chance of defiling what it
represents.

As General Colin Powell also recently so well put it: ``I would not
amend that great shield of democracy to hammer a few miscreants. The
flag will be flying proudly long after they have slunk away.''
Of course I do not believe that our Constitution or its Bill of
Rights must remain forever unaltered. But the importance of the Bill of
Rights requires us to establish an exceedingly high threshold for
agreeing to any amendment. For me, that threshold lies at the point
where an amendment is shown to be necessary to address some extreme
threat to the Republic or redress some outrageous wrong. In this case,
abhorrent though Flag desecration may be, it simply does not meet that
threshold.
I know that this is an issue that many feel passionately about. Many
of my constituents have brought their views on this issue to me, and I
would like to take just a couple of minutes to address some of the
arguments they have made.
I have heard it argued that a vote for this amendment is merely a
vote to let the People--through their state legislatures--decide the
issue. Those who make this argument point to polls showing that as much
as 75 to 80 percent of the American public support

[[Page S1870]]

the amendment. It frankly is unclear whether support is all that high.
I have seen polls showing that a majority of Americans opposed the
amendment when they knew that it would be the first in our nation's
history to restrict our First Amendment freedoms of speech and
expression. But more importantly, a decision on an issue as important
as this one should not be made on the basis of polling. It is precisely
because of the caution the Framers meant us to use in amending the
Constitution, that they required supermajorities of both Houses of
Congress as well as of the State legislatures to give their assent
before our nation's foundational document could be altered. The Senate
was never meant to serve as a rubber stamp in this process, and so I
owe it to the People of Connecticut, who have elected me to use my best
judgment, to carefully consider issues before me, and to vote the way I
believe to be correct.
Some also have suggested that it is not this Amendment that would be
changing the Bill of Rights or the First Amendment--that it was instead
the Supreme Court that did that when, in 1989, it overturned 200 years
of precedent and found Flag desecration to be protected by the First
Amendment. The history of this issue is more complicated than that.
Most importantly, it's just not correct to say that the Supreme Court
reversed 200 years of precedent. The first state Flag statute
apparently was not enacted until the end of the 19th Century, and there
was no federal Flag statute until 1968. Moreover, it's not really fair
to say that the Supreme Court reversed any of its precedents in 1989,
because before the 1989 Texas v. Johnson case, the Supreme Court never
addressed this issue head on. In fact, in a number of cases throughout
the 20th Century dealing with people who treated the Flag in a manner
that offended others, the Supreme Court repeatedly either held the
conduct to be protected by the First Amendment or found other reasons
to overturn the convictions. For that reason, despite dicta in some of
these cases distinguishing them from pure Flag desecration, the dissent
in Johnson had to acknowledge that ``Our prior cases dealing with flag
desecration statutes have left open the question that the Court
resolves today.'' 491 U.S. 397, 432.
I must conclude that, abhorrent and despicable as I find desecrating
the Flag to be, I cannot vote to support this amendment. In the end,
Flag desecration is hateful and worthy of condemnation, but I just
cannot conclude that it threatens the Republic. For that reason,
although I stand ready to support any statutory means possible to
curtail desecration of the Flag, I just cannot support amending our
nation's foundational document to address it.
Mr. CRAIG. Mr. President, I join in this debate with mixed feelings.
On one hand, I am very frustrated we are here yet again, as we have
been year after year for so long, trying to secure approval for this
very important amendment so that it can be sent to the states for
ratification. Time after time, we have come within just a few votes of
success. But, for whatever reason, those few votes have eluded us, and
we have had to go back to square one and begin the legislative process
again.
So I cannot approach this debate without a good measure of
frustration.
But on the other hand, the very fact that we are here again debating
this measure is reassuring. It is proof positive of the American
people's continuing belief in the importance of flag protection.
Imagine that. In spite of all the editorials about the erosion of
ideals, in spite of all the speeches, some on this very Senate floor,
about the loss of values in America, in spite of the dire predictions
about moral decline--in spite of all that, there is a strong and
growing grassroots movement demanding protection of our Nation's most
important symbol: our flag.
Why would we even hesitate to answer that call?
Millions of our fellow citizens are telling us that the sight or
mention of our flag still has the power to awaken the spirit of the
American patriot. State legislatures are clamoring for the opportunity
to protect the symbol of our national aspirations and values.
To those of my colleagues who are searching for signs of spring in a
winter of moral decay, let me say: look no further. Here is the sign.
This is the call. Now is the time to take a stand and support this
amendment.
I do not minimize the fears of those on the other side of this
debate. However, it is worth remembering that the U.S. Supreme Court
has not hesitated to draw constitutional lines around the kinds of
speech that are protected or not protected by the First Amendment. They
have found that in some cases, certain interests may outweigh the
citizen's right to free expression. As a result, laws may be enacted to
restrict those kinds of speech, such as ``fighting words'' or
obscenity.
The Court chose not to exempt the behavior that came under scrutiny
in the flag case. Frankly, I think they could have, and should have,
reached a different result. But my point is that the Congress need not
shrink from applying its own judgment to balancing the interests
involved. In my opinion, flag protection serves a number of compelling
interests but would not prevent the expression of a single idea or
message. I do not think the First Amendment must be or would be
compromised by protecting the flag from desecration.
Even so, it is also worth noting that what we do here today is only
the first step in a long process. This amendment must be ratified by
the states, and only after that will Congress fashion an actual flag
protection statute. Even if some of my colleagues are uncertain about
how to go about crafting legislation to protect the flag, I hope they
will all agree that it is appropriate to pass this resolution and give
the American people the opportunity they have demanded to consider this
issue in the legislatures and town halls and across the kitchen tables
of this great country.

Yesterday morning, I had the honor of addressing our Nation's
veterans. As I stood before them, I thought of the long line of
patriots throughout our history who have defended our flag--some with
the supreme sacrifice. Suddenly, the legal hairsplitting and fear-
mongering over this issue seemed both trivial and insulting.
Millions of Americans understand, as these veterans do, that the flag
is more than a scrap of cloth. It weaves people of diverse cultures
together to form our Nation, just as surely as its threads are woven
into a pattern that stands for freedom throughout the world. It
deserves protection and can be protected without endangering any of the
fundamental ideals it symbolizes.
Today, we can send a signal that we understand, that we agree, that
we honor the values that the American people have attached to our flag.
I hope all our colleagues will join in voting in favor of this
resolution and moving the flag protection constitutional amendment to
the states for ratification.
Mr. BINGAMAN. Mr. President, I rise to speak briefly on S.J. Res. 14,
an amendment to the Constitution of the United States.
As my colleagues know, I will vote against this resolution just as I
have voted against previous attempts to pass anti-flag desecration
amendments during my tenure in the Senate. However, I take a back seat
to no one in my respect for the flag, for what it stands for and, most
importantly, for the hundreds of thousands of brave men and women of
our armed services who sacrificed so much to defend this Nation, our
Constitution, and, yes, or flag. I abhor the desecration of the flag as
a form of expressing views about America or a policy of our government.
That is why I supported an amendment by Senator McConnell that would
prohibit most, if not all, incidents of flag desecration by statutorily
banning the desecration of a flag if it is done with the intent to
incite or produce imminent violence or breach of the peace, or if the
flag belongs to the United States Government or the act occurs on lands
reserved for the use of the United States.
In the end, however, it is our Constitution and not the flag which
gives us our freedoms. And chief among those freedoms, indeed the
fundamental and most important freedom, is the right to speak freely
against the government, against a government official or against a
government policy. The speech of an individual may be distasteful to
the majority, as is the case when someone burns a flag or when the KKK
is allowed to march in our cities,

[[Page S1871]]

but our Constitution was established to protect the rights of the
minority. For when the majority is allowed to rule without a check and
balance, tyranny is not far behind.
I don't doubt that the vast majority of Americans oppose, as do I,
the desecration of our flag, but we were elected to preserve and
protect the Constitution of the United States and I simply do not see
how we defend the Constitution by chipping away at its very foundation.
Mr. President, there are many reasons to oppose amending the first
amendment for the first time in our Nation's history and for this
particular purpose. As several of our colleagues have pointed out, we
are not experiencing an epidemic of flag burning in the country. But we
likely will, if this amendment passes and Congress goes on to ban acts
of desecration.
I also share the concerns raised yesterday by my friend from Vermont,
Senator Leahy, that while the Senate takes 3 or 4 days to debate this
amendment, we have not taken the time to address other issues that are
extremely important, especially to our Nation's veterans and to our
Armed Forces. One example is S. 2003, of which I am a cosponsor and
that begins to address the issue of the Federal Government keeping its
promises to our veterans in the area of health care. I wish the Senate
would take up and pass S. 2003 but we can't seem to find time to do
that. Likewise, I recently introduced legislation that would compensate
the remaining survivors of the Bataan Death March for the incredible
suffering they endured on behalf of their country. I would like to see
the Senate take up and pass that legislation but we haven't.
Mr. President, I think our Constitution and Nation are strong enough
to handle a few miscreants who want to burn a flag. I think the
drafters of the Constitution envisioned that it would survive speech
which the majority finds offensive. I believe that a vote against this
amendment is a vote for the Constitution and for the most important
principle embedded in that document, the right of every American to
free speech.
Ms. MIKULSKI. Mr. President. I oppose the burning of our Nation's
flag. I oppose it today as I always have. I am deeply concerned about
the desecration of the United States flag because of what it says about
our culture, our values and our patriotism.
Our flag is the lasting symbol of America. To me, every thread in
every American flag represents individuals who have laid down their
lives in the name of freedom and democracy.
Yet I cannot support an Amendment to the United States Constitution
which would, for the first time in our nation's history, narrow the
reach of the First Amendment guarantee of freedom of speech. Instead of
expanding the rights of Americans, this Amendment would constrict the
freedoms which we fought so hard to win.
Instead, we should enact legislation that accomplishes the same
goal--without trampling on our fundamental American rights. I have
voted several times for legislation that would have provided protection
of the flag through a statute, rather than a Constitutional amendment.
Senator McConnell offered an alternative that sought to create a
statutory solution that could have passed the muster of the Supreme
Court. The McConnell amendment would have provided for fines or
imprisonment for anyone who destroys a flag with the intent to incite
violence or breach of peace. This amendment would have protected both
our flag and our Constitution. I'm disappointed that it did not pass.
Our flag is a symbol of the principles that have kept our country
strong and free. When we think of our flag, we think of everything that
is good about this country--patriotism, courage, loyalty, duty and
honor. Our responsibility is to live up to these standards--and to
foster a new sense of citizenship and a new sense of duty.
We should honor our flag by rekindling these principles--not by
amending our Constitution.
The PRESIDING OFFICER (Mr. DeWine). Who yields time?
Mr. HATCH. Mr. President, I yield 5 minutes to the distinguished
Senator from Florida.
Mr. MACK. Mr. President, I intend to speak on another issue. I ask
unanimous consent to speak as in morning business for not to exceed 5
minutes.
The PRESIDING OFFICER. Is there objection?
Without objection, it is so ordered.

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