[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.

                          ____________________