[Congressional Record Volume 146, Number 37 (Wednesday, March 29, 2000)]
[Senate]
[Pages S1872-S1874]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
FLAG DESECRATION CONSTITUTIONAL AMENDMENT--Continued
The PRESIDING OFFICER. Who yields time?
Mr. DASCHLE. Mr. President, I will take whatever time may be required
and use my leader time.
Mr. President, the debate over the last two days has been deeply
moving. When we began this debate, I thought to myself how much I would
prefer it if we were talking about veterans' health care, prescription
drugs, or raising the minimum wage.
But, I stand corrected. This debate has proved meaningful and proved
that our reputation as the deliberative body is earned.
I thank especially the distinguished Senior Senator from Vermont, the
Ranking Member of the Judiciary Committee, Senator Leahy for his fine
stewardship of this debate. As always Senator Leahy has offered much
wisdom and demonstrated much skill as he managed this amendment.
This afternoon, as we close this debate I want to draw my colleagues'
attention to the statements of Senator Robert Byrd and Senator Chuck
Robb. Both men gave eloquent statements about how they came to their
decision to oppose this constitutional amendment. These statements
moved me and I dwell on them because they represent my views so well.
For neither of these men, was their decision easy. I have come to
believe, however, that it is not in easy decisions that you find the
measure of a Senator--it is the hard decisions that distinguish the men
and women we remember long after they leave this place.
Senator Byrd, in his usual way, reminded us why the Bill of Rights
has never been amended in our history. Why? Because it was our
founders' design. They set the bar for passage of a constitutional
amendment high because they strongly believed that the Constitution
should be amended in only the rarest of circumstances. And that has
been the case. As Senator Byrd points out, setting aside the amendments
involving prohibition, the Constitution has been amended only 15 times
in 209 years.
As Senator Byrd noted, ``In the final analysis, it is the
Constitution--not the flag--that is the foundation and guarantor of the
people's liberties.'' Thus, Senator Byrd conceded that, as much as he
loves the flag, and as much as he salutes the patriotism of those who
support this measure, he must oppose the amendment. His sentiments
reflect so well the struggle I have felt over the years when we have
considered this amendment in the past.
I, like other veterans, love the flag that has united us at so many
critical times. I cannot understand why anyone would burn the flag
simply to call attention to a cause. But as Senator Robb reminded me--
it was to protect the rights of such an unpopular dissenter that I once
wore a military uniform. Senator Robb noted that there will always be
another flag to hold high, when one is defiled, but there will be no
other Constitution--should we defile it.
Senator Robb held dying men in his arms in Southeast Asia. He
understands the sacrifices men and women will make to save this
democracy. This afternoon, as we cast this vote, I am proud to stand
with him, to stand with Senator Byrd, to stand with Senators Bob Kerrey
and John Kerry, and others, to fight here--today--to preserve the
principals and ideals these patriots fought for.
As Senator Byrd said today: ``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.'' By honoring and preserving the
Constitution, we ensure that this symbol--our flag--continues to
represent a country devoted to democracy and free speech.
I yield the floor.
The PRESIDING OFFICER. The majority leader is recognized.
Mr. LOTT. Mr. President, could I inquire about the time remaining?
The PRESIDING OFFICER. The majority leader has 15 minutes.
Mr. LOTT. Is that the only time left before the vote?
The PRESIDING OFFICER. No. Senator Leahy has 21 minutes. Senator
Hatch has 31 minutes.
Mr. LOTT. Thank you, Mr. President.
Mr. President, I yield to Senator Hatch for a request.
Mr. HATCH. Mr. President, I am prepared to yield the remainder of our
time, if the minority will yield the remainder of its time. Senator
Lott will be the last speaker.
Mr. LOTT. Mr. President, I believe it was the plan for the leaders to
yield the remainder of time. I believe Senator Daschle did that. After
all time had been used on both sides, I would be the final speaker, and
then we would go to a recorded vote. We indicated we would vote
sometime around 4:30.
I ask Senator Leahy, are we prepared to yield back time on both sides
at the conclusion of my remarks?
Mr. LEAHY. Mr. President, it is my understanding that the Senator
from Utah was going to yield back his time.
Mr. LOTT. That is correct.
Mr. LEAHY. Has the Democratic leader yielded his time?
Mr. LOTT. He completed his remarks and has yielded the remainder of
his time.
Mr. LEAHY. Of course, I understand that in the normal course the
distinguished leader would be given the right to make final remarks.
I yield my time.
Mr. LOTT. Thank you very much.
Mr. HATCH. I yield the remainder of my time.
The PRESIDING OFFICER. All time is yielded.
The majority leader is recognized.
Mr. LOTT. Thank you, Mr. President.
Mr. President, I commend those who have been involved in the debate
on this very important issue over the past 3 days. It is occasions such
as this when I think the Senate quite often rises to the greatest
height, but it should, because we are debating very important issues
here, symbols of our freedom and our democracy, the Constitution, the
flag.
I am pleased we have had this discussion. I think the American people
want the Senate to act in this area. Now we are prepared to vote.
I rise in support of Senate Joint Resolution 14, the constitutional
amendment to protect the flag of the United
[[Page S1873]]
States. What we have before the Senate today is a very simple measure.
I have had some discussion with some individuals from outside
Washington who asked, how long and how complicated is it? It is not
long. It is very simple.
It reads in full:
The Congress shall have power to prohibit the physical
desecration of the flag of the United States.
That is the entire amendment.
During most of the history of our Republic, the provision expressed
in this amendment would have been noncontroversial. Indeed, prior to
the Supreme Court's 5-4 decision in Texas v. Johnson in 1989, 48 States
and the Federal Government had laws protecting our most basic national
symbol, the flag. The Supreme Court's decision in 1989 reflected a
fundamental misunderstanding, a misunderstanding of the law, of our
history, and of basic common sense.
Those who oppose this amendment argue that defacing the flag somehow
represents speech that must be protected under the first amendment of
the Constitution. I think people have a pretty good understanding of
what speech is--at least outside of Washington--and what type of
activity is protected under our Constitution. I imagine there are some
close situations where there is room for disagreement, obviously, but I
don't think that is the case here.
We live in a free society where individuals are free to express their
views. People can express dissatisfaction with their government, and
they do; with the laws, and they do; and even with the flag. They can
express those disagreements. While the speech in which some of our
fellow citizens choose to engage can at times be repulsive and
offensive or even dangerous, we do respect the fundamental right of
individuals to express their ideas. No one is suggesting it should be
otherwise.
In my opinion, burning the flag is not speech, it is conduct of the
most offensive kind. Protecting the right of individuals to destroy
property has no relation to the question of whether people are free to
speak or to write or to campaign or to petition against the leaders of
their government. I strongly reject the notion that those who support
this amendment lack concern or respect for our traditions of free
speech or for the notion that people should be free to criticize their
government. This amendment simply will not hinder those basic freedoms.
Certainly, Senator Hatch, who has led the debate on this side, and
many other Senators who will vote for this have great respect for our
traditions of free speech and for the Constitution. But they think this
is an issue that rises to the level of being considered as an
amendment.
This measure does not change the first amendment nor does it alter
our historical respect of free speech. It merely restores the original
understanding of our Constitution, an understanding that led nearly
every State and the Federal Government to maintain for decades laws
protecting the flag.
As we consider this amendment, it is essential to remind ourselves
that our rights, our constitutional guarantees, do not exist in a
vacuum. They exist for a reason--namely, to further our great
experiment in self-government and a constitutional republic. They exist
to help us thrive as individuals and as a nation.
The American flag is a sacred, basic, fundamental symbol of our
Nation's ideals--the symbol of those goals and values for which we have
asked our young men and women to fight and die. It is a symbol that
causes citizens to rise in pride and to salute. It is a symbol men and
women have followed. It is a symbol men have carried into battle. It
does represent those basic tenets in which we believe in this country.
Some argue that allowing the desecration of this most vital symbol
somehow shows our strength and self-assurance as a nation. I disagree.
I think it reflects a perversion of liberty and a misunderstanding of
our system of government. Allowing the desecration of our national
symbol is not a sign of strength, it is a sign of self-indulgence, as
we have in so many areas of our society today, of a nation that does
not take seriously the obvious point that our rights coexist with
responsibilities and limitations.
The flag is unique. When we went to the Moon, we didn't take some
other sign of military might, some billboard, some expression of our
great wealth. No, instead we planted the flag, the same flag that was
raised over Iwo Jima, the same flag we lower to half mast at times of
national tragedy, the same flag we drape over the coffin of our
American heroes and our veterans. Surely protecting such a symbol is
not only consistent with our deepest traditions but essential to
preserve the society that has developed and fostered those traditions.
I sympathize with those who express concern that a constitutional
amendment is an extraordinary event and should not be taken lightly. It
never is. We have had some tremendous debates over the years on
constitutional amendments. Most of them were defeated, but, on
occasion, some have passed and they have proven to be good for the
advancement of our country.
Had the Supreme Court interpreted the Constitution appropriately, we
would not be forced to take this serious and unusual step. However, the
Supreme Court's failure to act responsibly on this issue leaves us no
other means to protect this symbol for which so many Americans have
sacrificed their lives and to which they have pledged their sacred
honor.
Some Members of this body claim that these goals can be accomplished
through statute. I can say frankly that I wish it would be so but I
don't believe it can be so. Make no mistake, the Supreme Court has
stated over and over and over again that its interpretation of the
first amendment trumps any statute Congress may pass.
If we truly wish to protect the flag--and I know an overwhelming
number of Americans do--we have no choice but to vote for a
constitutional amendment.
There are those who belittle this amendment and our effort to protect
the flag. They claim it is too narrow an issue, too small a problem,
and that this is an issue not worthy of Congress' attention. I believe
this issue is more important than any appropriation or any new set of
regulations for it goes to the heart of who we are as a people and what
we are as a nation.
The United States is different from almost every other nation on
Earth. Those who come to America don't share the same language, the
same religion, the same ethnicity, the same history, or the same
geography. Instead of those tangible similarities, Americans are united
by intangibles--by our commitment to certain ideals. One of those
ideals is the principle of free speech. But another is the devotion to
our country and a commitment to work for its success. By asking
Americans to respect the flag, we simply ask them to demonstrate that
any protest, criticism, or complaint they may have is made with the
best interests of the Nation at heart. The measure before the Senate
today furthers that basic and essential principle upon which our Nation
was founded.
Once again, we are being told that the Senate should reject this,
that we know better. Yet look at what has happened. The States have
voted overwhelmingly to protect the flag. Forty-eight States had laws
protecting it before the Supreme Court decision.
Many State legislatures have called upon the Congress to send this
amendment to the States. In fact, I think every State legislature has
done that. The House of Representatives has passed a flag amendment by
a large, overwhelmingly bipartisan vote. Now it is up to the Senate to
do what we should. Are we saying we know better than the American
people? That we know better than every State legislature in the Nation?
That we know better than the House of Representatives? We know better?
Why not allow the people, through their State legislatures, to have the
final say? Why not pass this amendment, send it to the people, and let
them make the final determination? I think they will make the right
decision.
I think we should work together today on both sides of the aisle to
pass this amendment and send it to the people.
I yield the floor.
Mr. HATCH. Mr. President, I ask for the yeas and nays.
The PRESIDING OFFICER. Is there a sufficient second?
There is a sufficient second.
The yeas and nays were ordered.
[[Page S1874]]
The PRESIDING OFFICER. All time having expired, the question is on
the engrossment and third reading of the joint resolution.
The joint resolution was ordered to be engrossed for a third reading,
and was read the third time.
The PRESIDING OFFICER. The joint resolution having been read the
third time, the question is, Shall the joint resolution pass?
The clerk will call the roll.
The assistant legislative clerk called the roll.
The PRESIDING OFFICER (Mr. Voinovich). Are there any other Senators
in the Chamber desiring to vote?
The yeas and nays resulted--yeas 63, nays 37, as follows:
[Rollcall Vote No. 48 Leg.]
YEAS--63
Abraham
Allard
Ashcroft
Baucus
Bayh
Bond
Breaux
Brownback
Bunning
Burns
Campbell
Cleland
Cochran
Collins
Coverdell
Craig
Crapo
DeWine
Domenici
Enzi
Feinstein
Fitzgerald
Frist
Gorton
Graham
Gramm
Grams
Grassley
Gregg
Hagel
Hatch
Helms
Hollings
Hutchinson
Hutchison
Inhofe
Johnson
Kyl
Landrieu
Lincoln
Lott
Lugar
Mack
McCain
Murkowski
Nickles
Reid
Roberts
Rockefeller
Roth
Santorum
Sessions
Shelby
Smith (NH)
Smith (OR)
Snowe
Specter
Stevens
Thomas
Thompson
Thurmond
Voinovich
Warner
NAYS--37
Akaka
Bennett
Biden
Bingaman
Boxer
Bryan
Byrd
Chafee, L.
Conrad
Daschle
Dodd
Dorgan
Durbin
Edwards
Feingold
Harkin
Inouye
Jeffords
Kennedy
Kerrey
Kerry
Kohl
Lautenberg
Leahy
Levin
Lieberman
McConnell
Mikulski
Moynihan
Murray
Reed
Robb
Sarbanes
Schumer
Torricelli
Wellstone
Wyden
The PRESIDING OFFICER. On this vote, the yeas are 63, the nays are
37.
Two-thirds of the Senators duly chosen and sworn not having voted in
the affirmative, the resolution is rejected.
Mr. LEAHY. Mr. President, I move to reconsider the vote.
Mr. BENNETT. I move to lay that motion on the table.
The motion to lay on the table was agreed to.
The PRESIDING OFFICER. The Senator from Vermont.
Mr. LEAHY. Mr. President, last fall I became the 21st or 22nd person
in the history of this body to cast 10,000 votes. When somebody asked
me about those votes, whether they were all important, I said: No, a
lot of them were merely procedural votes that we all cast, but some
were important. Some of those 10,000 were.
Certainly this vote, whatever number of votes I might be privileged
to cast on the floor of the Senate, will go down as one of the most
important votes, as it will for all Senators. Whether they voted for or
against the amendment, it will be one of the most important votes they
will cast in their career.
I take a moment to commend the Senate for its actions this afternoon.
It protected the Constitution, the Bill of Rights, in particular our
first amendment freedoms. This has been an emotional debate, as one
would expect, about a highly charged political issue. I believe the
Senate fulfilled its constitutional responsibility to both debate and
then vote on this proposed 28th amendment to the Constitution.
I thank Senators on both sides of the aisle, Democrats and
Republicans, and on both sides of this issue--those who voted, in my
estimation, to protect the Constitution as it presently stands and
those who used their constitutional right to vote to amend the
Constitution. There were thoughtful and heartfelt statements on both
sides.
The distinguished Senator from Wisconsin, Mr. Feingold, who is
ranking Democrat on the Constitution subcommittee, spoke eloquently on
the floor, as he has in committee. He has been a leader on
constitutional issues since he arrived in the Senate. I thank him for
all he has done.
We heard from Senator Kennedy. We heard from Senator Moynihan, one of
11 Senators in this body who fought in World War II. We heard from
Senator Dodd, Senator Dorgan, Senator Conrad, Senator Durbin, Senator
Wellstone, and so many others. All were thoughtful and constructive
contributors to the debate.
In particular, I commend my dear and very special friend, Tom
Daschle, Democratic leader, for his remarks closing this debate and
also for his leadership throughout this debate.
Over the last 24 hours, we heard compelling statements--if I may
single out a couple--from Senator Bob Kerrey, Senator Chuck Robb, and
Senator John Kerry. Each of these men was an heroic veteran of the
Vietnam war. Each was decorated for his bravery, and one had the
highest decoration of this country, the Congressional Medal of Honor.
Each of them rose to the defense of our freedoms. We have heeded their
counsel. We have heeded their service, as we have our former colleague,
Senator John Glenn, another American hero; Gen. Colin Powell, another
American hero; our late colleague, Senator John Chafee; and the many
veterans who testified and contacted us urging that we preserve,
protect, and defend the Constitution by not amending the first
amendment to the Bill of Rights for the first time in the history of
our great Nation.
I recognize the courage shown by the distinguished senior Senator
from West Virginia, Mr. Byrd--Senator Byrd gave us a history lesson
which will be studied long after all of us are gone--and the
distinguished Senator from Nevada, Mr. Bryan, who, during the course of
consideration of this proposal, looked inside themselves, looked to the
principles of this country and changed the position they had held
before. I commend them for that. I thank them. Their legacy will
include their dedication to the Constitution and their vote to uphold,
protect, and defend it.
I thank Prof. Gary May, Keith Kruel, James Warner, Rev. Nathan
Wilson, Prof. Robert Cole, the American Bar Association, People for the
American Way, and the ACLU for their views.
I thank Maj. Gen. Patrick Brady and Lt. Gen. Edward Baca for their
testimony opposed to the position I have taken today.
I commend Senate staff on both sides of the aisle, those for the
amendment and those opposed. I think in this case I may be allowed to
thank Bruce Cohen and Julie Katzman of my staff, who spent far more
hours than this Senator had any right to ask them to spend on this in
answering every question I ever asked, anticipating those I was not
wise enough to ask, and always giving me good counsel. Bob Schiff,
Andrea LaRue, Michaela Sims, and Barbara Riehle, they should be proud
of their work and of the Senate's action today.
I would also like to thank my friend and Chairman, Orrin Hatch, who
has fought so hard for this amendment over the years.
Mr. President, I see other Senators seeking recognition. I will yield
the floor in one moment. Again, I thank all Senators on both sides of
the issue for their dedication to this issue.
I yield the floor.
Mr. WARNER. Mr. President, we respect the comments of our colleague
from Vermont. Recognition should also go to Senator Hatch. I realize
Senator Leahy also was about to speak on behalf of Senator Hatch. I
want to recognize his efforts in working with the Senator from Vermont
on this issue. The final vote was 63, and that is well beyond 50
percent of the Senate by which most issues are decided.
Mr. President, at this time, I notice the senior Senator from South
Carolina on the floor. I ask unanimous consent that I be recognized
following his presentation.
The PRESIDING OFFICER. Without objection, it is so ordered.
____________________