[Congressional Record Volume 147, Number 33 (Tuesday, March 13, 2001)]
[Senate]
[Pages S2228-S2231]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. HATCH (for himself, Mr. Cleland, Mr. Lott, Mr. Thurmond, 
        Mrs. Feinstein, Mr. Smith of New Hampshire, Mr. Brownback, Mr. 
        Allard, Mr. Allen, Mr. Baucus, Mr. Bond, Mr. Bunning, Ms. 
        Collins, Mr. Craig, Mr. Crapo, Mr. Dayton, Mr. DeWine, Mr. 
        Domenici, Mr. Ensign, Mr. Enzi, Mr. Fitzgerald, Mr. Frist, Mr. 
        Gramm, Mr. Grassley, Mr. Hagel, Mr. Helms, Mr. Hollings, Mr. 
        Hutchinson, Mrs. Hutchison, Mr. Inhofe, Mr. Johnson, Mrs. 
        Lincoln, Mr. Lugar, Mr. McCain, Mr. Miller, Mr. Murkowski, Mr. 
        Reid, Mr. Sessions,

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        Mr. Roberts, Mr. Santorum, Mr. Shelby, Ms. Snowe, Mr. Stevens, 
        Mr. Thomas, Mr. Voinovich and, Mr. Warner):
  S.J. Res. 7. A joint resolution proposing an amendment to the 
Constitution of the United States authorizing Congress to prohibit the 
physical desecration of the flag of the United States; to the Committee 
on the Judiciary.
  Mr. HATCH. Mr. President, it is with profound honor and reverence 
that I, together with my friend and colleague, Senator Cleland, 
introduce a bi-partisan constitutional amendment to permit Congress to 
prohibit the physical desecration of the American flag.
  The American flag serves as a symbol of our great nation. The flag 
represents in a way nothing else can, the common bond shared by an 
otherwise diverse people. Whatever our differences of party, race, 
religion, or socio-economic status, the flag reminds us that we are 
very much one people, united in a shared destiny, bonded in a common 
faith in our nation.
  Nearly a decade ago, Supreme Court Justice John Paul Stevens reminded 
us of the significance of our unique emblem when he wrote:

       A country's flag is a symbol of more than nationhood and 
     national unity. It also signifies the ideas that characterize 
     the society that has chosen that emblem as well as the 
     special history that has animated the growth and power of 
     those ideas. . . . So it is with the American flag. It is 
     more than a proud symbol of the courage, the determination, 
     and the gifts of a nation that transformed 13 fledgling 
     colonies into a world power. It is a symbol of freedom, of 
     equal opportunity, of religious tolerance, and of goodwill 
     for other peoples who share our aspirations.

  Throughout our history, the flag has captured the hearts and minds of 
all types of people, ranging from school teachers to union workers, 
traffic cops, grandmothers, and combat veterans. In 1861, President 
Abraham Lincoln called our young men to put their lives on the line to 
preserve the Union. When Union troops were beaten and demoralized, 
General Ulysses Grant ordered a detachment of men to make an early 
morning attack on Lookout Mountain in Tennessee. When the fog lifted 
from Lookout Mountain, the rest of the Union troops saw the American 
flag flying and cheered with a newfound courage. This courage 
eventually led to a nation of free men; not half-free and half-slave.
  In 1941, President Franklin Roosevelt called on all Americans to 
fight the aggression of the Axis powers. After suffering numerous early 
defeats, the free world watched in awe as five Marines and one sailor 
raised the American flag on Iwo Jima. Their undaunted, courageous act, 
for which three of the six men died, inspired the allied troops to 
attain victory over fascism.
  In 1990, President Bush called on our young men and women to go to 
the Mideast for Operations Desert Shield and Desert storm. After an 
unprovoked attack by the terrorist dictator Saadam Hussein on the 
Kingdom of Kuwait, American troops, wearing arm patches with the 
American flag on their shoulders, led the way to victory. General 
Norman Schwarzkopf addressed a joint session of Congress describing the 
American men and women who fought for the ideals symbolized by the 
American flag:

       [W]e were Protestants and Catholics and Jews and Moslems 
     and Buddhists, and many other religions, fighting for a 
     common and just cause. Because that's what your military is. 
     And we were black and white and yellow and brown and red. And 
     we noticed that when our blood was shed in the desert, it 
     didn't separate by race. It flowed together.

  General Schwarzkopf then thanked the American people for their 
support, stating:

       The prophets of doom, the naysayers, the protesters and the 
     flag-burners all said that you wouldn't stick by us, but we 
     knew better. We knew you'd never let us down. By golly, you 
     didn't.

  The pages of our history show that when this country has called our 
young men and women to serve under the American flag from Lookout 
Mountain to Iwo Jima to Kuwait, they have given their blood and lives. 
The crosses at Arlington, the Iwo Jima memorial, and the Vietnam 
Memorial honor those sacrifices. But there were those who did not.
  In 1984, Greg Johnson led a group of radicals in a protest march in 
which he doused an American flag with kerosene and set it on fire as 
his fellow protestors chanted: ``America, the red, white, and blue, we 
spit on you.'' Sadly, the radical extremists, most of whom have given 
nothing, suffered nothing, and who respect nothing, would rather burn 
and spit on the American flag than honor it.
  Contrast this image with the deeds of Roy Benavidez, an Army Sergeant 
from Texas, who led a helicopter extraction force to rescue a 
reconnaissance team in Vietnam. Despite being wounded in the leg, face, 
back, head, and abdomen by small arms fire, grenades, and hand-to-hand 
combat with vicious North Vietnamese soldiers, Benavidez held off the 
enemy and carried several wounded to the helicopters, until finally 
collapsing from a loss of blood. Benavidez earned the Medal of Honor. 
When Benavidez was buried in Arlington National Cemetery, the honor 
guard placed an American flag on his coffin and then folded it and gave 
it to his widow. The purpose of Roy Benavidez' heroic sacrifice--and 
the purpose of the American people's ratification of the First 
Amendment--was not to protect the right of radicals like Greg Johnson 
to burn and spit on the American flag.
  The American people have long distinguished between the First 
Amendment right to speak and write one's political opinions and the 
disrespectful, and often violent, physical destruction of the flag. For 
many years, the people's elected representatives in Congress and 49 
state legislatures passed statutes prohibiting the physical desecration 
of the flag. Our founding fathers, Chief Justice Earl Warren, and 
Justice Hugo Black believed these laws to be completely consistent with 
the First Amendment's protection of the spoken and written word and not 
disrespectful, extremist conduct.
  In 1989, however, the Supreme Court abandoned the history and intent 
of the First Amendment to embrace a philosophy that made no distinction 
between oral and written speech about the flag and extremist, 
disrespectful of the flag. In Texas v. Johnson, five members of the 
Court, for the first time ever, struck down a flag protection statute. 
The majority argued that the First Amendment had somehow changed and 
now prevented a state from protecting the American flag from radical, 
disrespectful, and violent actions. When Congress responded with a 
federal flag protection statute, the Supreme Court, in United States v. 
Eichman, used its new and changed interpretation of the First Amendment 
to strike it down by another five-to-four vote.

  Under this new interpretation of the First Amendment, it is assumed 
that the people, their elected legislators, and the courts can no 
longer distinguish between expressions concerning the flag that are 
more akin to spoken and written expression and expressions that 
constitute the disrespectful physical desecration of the flag. Because 
of this assumed inability to make such distinctions, it is argued that 
all of our freedoms to speak and write political ideas are wholly 
dependent on Greg Johnson's newly created ``right'' to burn and spit on 
the American flag.
  This ill-advised and radical philosophy fails because its basic 
premise--that laws and judges cannot distinguish between political 
expression and disrespectful physical desecration--is so obviously 
false. It is precisely this distinction that laws and judges did in 
fact make for over 200 years. Just as judges have distinguished which 
laws and actions comply with the constitutional command to provide 
``equal protection of the laws'' and ``due process of law,'' so to have 
judges been able to distinguish between free expression and 
disrespectful destruction.
  Certainly, extremist conduct such as smashing in the doors of the 
State Department may be a way of expressing one's dissatisfaction with 
the nation's foreign policy objectives. And one may even consider such 
behavior speech. Laws, however, can be enacted preventing such actions 
in large part because there are peaceful alternatives that can be 
equally powerful. After all, right here in the United States Senate, we 
prohibit speeches or demonstrations of any kind, even the silent 
display of signs or banners, in the public galleries.
  Moreover, it was not this radical philosophy of protecting 
disrespectful destruction that the people elevated to the status of 
constitutional law. Such an extremist philosophy was never ratified. 
Such a philosophy is not found in the original and historic intent of

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the First Amendment. Thus, in this Senator's view, the Supreme Court 
erred in Texas v. Johnson and in United States v. Eichman.
  Since Johnson and Eichman, constitutional scholars have opined that 
an attempt by Congress to protect the flag with another statute would 
fail in light of the new interpretation currently embraced by the 
Supreme Court. Thus, an amendment is the only legal means to protect 
the flag.
  This amendment affects only the most radical forms of conduct and 
will leave untouched the current constitutional protections for 
Americans to speak their sentiments in a rally, to write their 
sentiments to their newspaper, and to vote their sentiments at the 
ballot box. The amendment simply restores the traditional and historic 
power of the people's elected representatives to prohibit the radical 
and extremist physical desecration of the flag.
  Nor would restoring legal protection to the American flag place us on 
a slippery slope to limit other freedoms. No other symbol of our bi-
partisan national ideals has flown over the battlefields, cemeteries, 
football fields, and school yards of America. No other symbol has 
lifted the hearts of ordinary men and women seeking liberty around the 
world. No other symbol has been paid for with so much blood of our 
countrymen. The American people have paid for their flag, and it is our 
duty to let them protect it.

  In recent weeks, my colleagues on both sides of the political aisle 
have called for a new bipartisan spirit in Congress. This amendment 
offers these senators the chance to honor their words.
  Restoring legal protection to the American flag is not, nor should it 
be, a partisan issue. Approximately sixty senators, both Republicans 
and Democrats, have joined with Senator Cleland and myself as original 
cosponsors of this amendment.
  Polls have shown that over 70 percent of the American people want the 
opportunity to vote to protect their flag. Numerous organizations from 
the American Legion to the Women's War Veterans to the African-American 
Women's clergy all support the flag protection amendment. Forty-nine 
state legislatures have passed resolutions calling for constitutional 
protection for the flag.
  I am therefore proud to rise today to introduce a constitutional 
amendment that would restore to the people's elected representatives 
the right to protect our unique national symbol, the American flag, 
from acts of physical desecration.
  Mr. President, I ask unanimous consent that the text of the proposed 
amendment be included in the Record.
  Mr. President, I am very honored to be a cosponsor with my dear 
friend from Georgia, Senator Cleland. I appreciate the efforts he has 
put forth in this battle, and having served in the military as he has 
done with distinction, courage and heroism, he has a great deal of 
insight on this issue. I am proud and privileged to be able to work 
with him.
  There being no objection, the joint resolution was ordered to be 
printed in the Record, as follows:

                              S.J. Res. 7

       Resolved by the Senate and House of Representatives of the 
     United States of America in Congress assembled, That the 
     following article is proposed as an amendment to the 
     Constitution of the United States, which shall be valid to 
     all intents and purposes as part of the Constitution when 
     ratified by the legislatures of three-fourths of the several 
     States within 7 years after the date of its submission for 
     ratification:

                              ``Article --

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

  Mr. DAYTON. Mr. President, today I cosponsor this legislation, 
introduced by the distinguished Senator from Utah and the distinguished 
Senator from Georgia, which would empower Congress to prohibit the 
burning or other desecration of the American Flag. I do so out of my 
conviction that the American Flag should be placed, preeminent and 
transcendent, as the inviolable representation of our great country, 
our greatest principles, and our highest ideals.
  Our democratically elected leaders and our representative government 
do not always live up to these principles and ideals. However, they 
have sustained and inspired our governance for over 200 years. They are 
the principles and ideals for which, throughout our history, so many 
brave men and women have given their lives. They are the principles and 
ideals, embodied in the American Flag, which have been consecrated with 
their blood.
  I came to this realization several years ago, when I visited the 
American Cemetery just off Normandy Beach in France. There stand almost 
10,000 simple, white crosses in long, silent rows. Each one marks the 
grave of an American soldier, who gave his or her life on behalf of our 
country, on behalf of our principles and ideals, and on behalf of their 
preservation throughout the world.
  These brave and mostly young soldiers did not necessarily agree with 
every decision made by their government and its leaders at the time. 
Nor did the brave men and women who gave their lives in wars before or 
afterward. Yet they made their supreme sacrifices on each of our, and 
all of our, behalfs. They gave up the rest of their lives, their 
families, their hopes, and their dreams, so that we might live under 
the American Flag and enjoy all of its freedoms, privileges, and 
opportunities.
  Surely, that supreme sacrifice should be sanctified, honored, 
respected and forever made inviolate.
  Many of my friends and trusted advisers have told me I am wrong to 
cosponsor this Constitutional Amendment. They say it violates the very 
first principle for which these courageous Americans gave their lives. 
They say that such an amendment will weaken our First Amendment rights 
for future protests, disagreements, and expressions of personal and 
political conscience.
  I fully agree with their goals; yet, in this single instance, I 
disagree with their conclusions. No one supporting this amendment wants 
to compromise the essential freedoms of our First Amendment. In fact, 
by our seeking a Constitutional Amendment to protect the American Flag, 
its sponsors and supporters are acknowledging the sanctity of the 
United States Supreme Court's decision, which includes the burning or 
desecration of the American Flag as a Constitutionally protected form 
of ``Free Speech.'' In other words, virtually all expressions of 
political protest, disagreement, disrespect, and discontent are 
permitted.
  They should be. And after this Amendment is adopted, they will be. 
That protection of our essential freedoms, first granted and forever 
guaranteed by the First Amendment of the United States Constitution, 
remain inviolable. By this Amendment, we acknowledge them, respect 
them, and would place above them only the one ultimate symbol of our 
country, our freedoms, and our great democracy: the American Flag.
  Mr. President, I respect all of my colleagues and fellow citizens who 
disagree with our purpose through this legislation. However, I hope 
that they will not misunderstand our intent. Contrary to what some 
contend, this Constitutional amendment will not weaken either the First 
Amendment or the United States of America. In fact, it will strengthen 
both. It will remind all of us that there is something greater than 
ourselves, something greater than our individual opinions, something 
greater than our individual prerogatives. That something is greater 
than all of us, because it is all of us; it is the Flag of the United 
States of America.
  Mr. HUTCHINSON. Mr. President, I am proud to be an original cosponsor 
of Senator Hatch's joint resolution which would amend the United States 
Constitution to prohibit the desecration of our flag. Opponents to this 
measure contend that the right to desecrate the flag is the ultimate 
expression of speech and freedom. I reject that proposition as I 
believe that the desecration of our flag is a reprehensible act which 
should be prohibited. It is an affront to the brave and terrible 
sacrifices made by millions of American men and women who willingly 
left their limbs, lives, and loved ones on battlefields around the 
world.
  It is an affront to these Americans who have given the greatest 
sacrifices because of what the flag symbolizes. To explain what our 
flag represents, former United States Supreme Court Chief Justice 
Charles Evans Hughes in his work, ``National Symbol,'' said:


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       The flag is the symbol of our national unity, our national 
     endeavor, our national aspiration.
       The flag tells of the struggle for independence, of union 
     preserved, of liberty and union one and inseparable, of the 
     sacrifices of brave men and women to whom the ideals and 
     honor of this nation have been dearer than life.
       It means America first; it means an undivided allegiance.
       It means America united, strong and efficient, equal to her 
     tasks.
       It means that you cannot be saved by the valor and devotion 
     of your ancestors, that to each generation comes its 
     patriotic duty; and that upon your willingness to sacrifice 
     and endure as those before you have sacrificed and endured 
     rests the national hope.
       It speaks of equal rights, of the inspiration of free 
     institutions exemplified and vindicated, of liberty under law 
     intelligently conceived and impartially administered. There 
     is not a thread in it but scorns self-indulgence, weakness, 
     and rapacity.
       It is eloquent of our community interests, outweighing all 
     divergencies of opinion, and of our common destiny.

  Former President Calvin Coolidge, echoed Chief Justice Hughes in 
``Rights and Duties:''

       We do honor to the stars and stripes as the emblem of our 
     country and the symbol of all that our patriotism means.
       We identify the flag with almost everything we hold dear on 
     earth.
       It represents our peace and security, our civil and 
     political liberty, our freedom of religious worship, our 
     family, our friends, our home.
       We see it in the great multitude of blessings, of rights 
     and privileges that make up our country.
       But when we look at our flag and behold it emblazoned with 
     all our rights, we must remember that it is equally a symbol 
     of our duties.
       Every glory that we associate with it is the result of duty 
     done. A yearly contemplation of our flag strengthens and 
     purifies the national conscience.

  Given what our flag symbolizes, I find it incomprehensible that 
anyone would desecrate the flag and inexplicable that our Supreme Court 
would hold that burning a flag is protected speech rather than conduct 
which may be prohibited. I find it odd that one can be imprisoned for 
destroying a bald eagle's egg, but may freely burn our nation's 
greatest symbol. Accordingly, I urge my colleagues to pass this 
resolution so that our flag and all that it symbolizes may be forever 
protected.

                          ____________________