[Congressional Record Volume 147, Number 99 (Tuesday, July 17, 2001)]
[House]
[Pages H4035-H4036]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]


 PROVIDING FOR CONSIDERATION OF H.J. RES. 36, CONSTITUTIONAL AMENDMENT 
 AUTHORIZING CONGRESS TO PROHIBIT PHYSICAL DESECRATION OF THE FLAG OF 
                           THE UNITED STATES

  Mr. LINDER. Mr. Speaker, by direction of the Committee on Rules, I 
call up House Resolution 189 and ask for its immediate consideration.
  The Clerk read the resolution, as follows:

                              H. Res. 189

       Resolved, That upon the adoption of this resolution it 
     shall be in order to consider in the House the joint 
     resolution (H.J. Res. 36) proposing an amendment to the 
     Constitution of the United States authorizing the Congress to 
     prohibit the physical desecration of the flag of the United 
     States. The joint resolution shall be considered as read for 
     amendment. The previous question shall be considered as 
     ordered on the joint resolution and any amendment thereto to 
     final passage without intervening motion except: (1) two 
     hours of debate equally divided and controlled by the 
     chairman and ranking minority member of the Committee on the 
     Judiciary; (2) an amendment in the nature of a substitute, if 
     offered by Representative Conyers of Michigan or his 
     designee, which shall be considered as read and shall be 
     separately debatable for one hour equally divided and 
     controlled by the proponent and an opponent; and (3) one 
     motion to recommit with or without instructions.

  The SPEAKER pro tempore. The gentleman from Georgia (Mr. Linder) is 
recognized for 1 hour.
  Mr. LINDER. Mr. Speaker, for the purpose of debate only, I yield the 
customary 30 minutes to the gentleman from Florida (Mr. Hastings), 
pending which I yield myself such time as I may consume. During 
consideration of this resolution, all time yielded is for the purpose 
of debate only.
  Mr. Speaker, House Resolution 189 is a modified closed rule providing 
for the consideration of a constitutional amendment which would 
authorize Congress to ban the physical desecration of the American 
flag.
  H. Res. 189 provides for 2 hours of debate in the House of 
Representatives, equally divided and controlled by the chairman and 
ranking minority member of the Committee on the Judiciary.
  Upon the adoption of this rule, H.J. Res. 36 is made in order and 
considered as read. The rule also makes in order a substitute amendment 
if offered by the gentleman from Michigan (Mr. Conyers) or his 
designee, which shall be separately debatable for 1 hour, equally 
divided between a proponent and an opponent. All points of order are 
waived against this amendment.
  Finally, the rule provides for one motion to recommit, with or 
without instructions, as is the right of the minority.
  Mr. Speaker, this rule would allow Congress to debate legislation 
that protects our American heritage by protecting one of our most 
important symbols, our flag. Most Americans look to the flag as a 
symbol of our unity, our sovereignty and our democracy. Throughout the 
years, millions of Americans have fought and died for this country, and 
they look to the flag as the embodiment of our country's values.
  Two reasons for supporting this measure come to mind as we consider 
this legislation: first, from a logical standpoint, if we prohibit the 
destruction of U.S. currency by law, then surely protecting our symbol 
of freedom and democracy is just as important.
  The second reason is a more powerful one. Many Members believe it is 
the duty of Congress to protect the integrity of our heritage from 
individuals who disrespect this country.
  It is in the best interests of the American people to pass this 
legislation, and I wholeheartedly support it. In fact, I am an original 
cosponsor of H.J. Res. 36.
  Mr. Speaker, I reserve the balance of my time.
  Mr. HASTINGS of Florida. Mr. Speaker, I yield myself such time as I 
may consume.
  First, Mr. Speaker, let me thank the gentleman for yielding me this 
time. It is a pleasure to serve on the Committee on Rules with the 
gentleman from Georgia (Mr. Linder).
  Mr. Speaker, I rise in strong opposition to House Joint Resolution 
36. I firmly believe that passing this constitutional amendment would 
abandon the very values and principles upon which this country was 
founded.
  Make no mistake, I deplore the desecration of the flag. The flag is a 
symbol of our country and a reminder of our great heritage. I find it 
unfortunate and repugnant that a few individuals choose to desecrate 
that which we hold so dear. However, it is because of my love for the 
flag and the country for which it stands that, unfortunately, I have no 
choice but to oppose this well-intentioned yet misguided, in my view, 
legislation.
  Our country was founded on certain principles. Chief among these 
principles is freedom of speech and expression. These freedoms were 
included in the Bill of Rights because the Founding Fathers took 
deliberate steps to avoid creating a country in which individuals' 
civil liberties could be abridged by the Government. Yet that is 
exactly what this amendment would do. It begins a dangerous trend in 
which the Government can decide which ideas are legal and which must be 
suppressed.
  Ultimately, we must remember that it is not simply the flag we honor 
but, rather, the principles it embodies. To restrict people's means of 
expression would do nothing but abandon those principles, and to 
destroy these principles would be a far greater travesty than to 
destroy its symbol. Indeed, it would render the symbol meaningless.
  Earlier this month, Mr. Speaker, I was with a group of 15 Members of 
Congress who were visiting the American cemetery in Normandy, France. 
There we saw the graves of more than 9,000 men and women who gave their 
lives not just for the liberation of Europe but in defense of an idea: 
democracy, and all that it stands for. What democracy stands for is 
forever enshrined in our Constitution. These men and women who died for 
an idea, and the patriots who came before and after them, understand 
that idea.
  I brought back these two flags, this one especially, the American 
flag. The other is the flag of France. I hold it here to remind myself 
of what others gave so that I may be here today in this country which 
protects individual rights and liberties more than any other country in 
the world. Understand, though, this flag itself has little inherent 
value. It is cloth attached to a piece of wood. The value of this cloth 
is in the messages that it conveys and the country that it stands for 
and the people who have fought and died to keep this flag and others 
like it flying high and free. Those men who died storming Omaha and 
Utah Beaches did not fight for a flag; they fought for the idea that 
our flag represents. This amendment, in my view, would diminish what 
those brave men and women fought and died for.
  The last time Congress debated a similar bill, retired four-star 
general and current Secretary of State Colin Powell said that he would 
not support amending the Constitution to protect the flag. In fact, 
General Powell 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 are too secure as a Nation to risk our commitment to freedom by 
endeavoring to legislate patriotism. If we tamper with our Constitution 
because of the antics of a handful of thoughtless and obnoxious people, 
we will have reduced the flag as a symbol of freedom, not enhanced it.
  Mr. Speaker, I reserve the balance of my time.
  Mr. LINDER. Mr. Speaker, I am pleased to yield 3 minutes to the 
gentleman from Ohio (Mr. Chabot).
  Mr. CHABOT. Mr. Speaker, I thank the gentleman for yielding me this 
time, and I rise in support of the rule. The American flag serves a 
unique role as the symbol of the ideals upon which America was founded. 
It is a national asset that helps to preserve our unity, our freedom, 
and our liberty as Americans. This symbol represents our country's many 
hard-won freedoms paid for with the lives of thousands and thousands of 
young men and women over this Nation's history. For years, 48 States 
and the District of Columbia enforced laws prohibiting the physical 
desecration of the American flag. In the 1989 Texas v. Johnson ruling, 
the United States Supreme Court in a 5-4 vote overthrew what until then 
had been settled law and ruled that flag desecration as a means of 
public protest is an act of free expression protected by the first 
amendment to the U.S. Constitution. A year later, essentially 
reiterating its Johnson ruling,

[[Page H4036]]

the court in U.S. v. Eichman, another 5-4 ruling, by the way, struck 
down a Federal statute prohibiting the physical desecration of the flag 
despite the court's own conclusion that the statute was content-
neutral.
  In the years since these two rulings were handed down, 49 States have 
passed resolutions calling upon this Congress to pass a flag protection 
amendment and send it back to the States for ratification. Although a 
constitutional amendment should be approached only after much 
reflection, the U.S. Supreme Court's conclusions in the Johnson and the 
Eichman cases have left the American people with no other alternative 
but to amend the Constitution to provide Congress the authority to 
prohibit the physical desecration of the American flag. The amendment 
enjoys strong support throughout the Nation, indicating that it will 
likely be adopted by the States should this Congress approve the 
language.
  I urge my colleagues to approve this rule and move to full debate and 
pass H.J. Res. 36.
  Ms. JACKSON-LEE of Texas. Mr. Speaker. I rise in opposition to the 
rule.
  Mr. Speaker, this rule allows the well-settled law of this nation to 
be called into question at the whim of special interest groups who 
disagree with the value we Americans place on freedom of speech. By 
allowing this debate to occur, the leadership has signaled its 
intention to favor its ideological companions without regard for legal 
precedent or constitutional muster.
  In 1989 the Supreme Court was faced with a difficult balancing test. 
Texas v. Johnson, 491 U.S. 397, forced the court to examine whether the 
interests of this nation in protecting the symbol of its freedom are 
outweighed by the individual freedoms of its citizens. The Court did 
not shy away from this dilemma, holding that the government cannot 
prohibit the expression of an idea society finds offensive, and that 
not even the flag is recognized as an exception to this principle.
  Following this rights-affirming decision, Congress passed the ``Flag 
Protection Act of 1989,'' which attempted to criminalize the conduct of 
those who might use the flag for free speech purposes. The next session 
the Supreme Court invalidated this law on the same grounds it ruled on 
during its previous session. The Court held that attempting to preserve 
the physical integrity of the flag is only related to the flag as an 
article of speech or conduct in United States v. Eichman, 496 U.S. 310 
(1990).
  Now, Mr. Speaker, over ten years later, Congress is again attempting 
to impermissibly affect the ability of citizens to speak freely by 
taking the normously grave step of amending the Constitution of the 
United States. Supporters of this amendment argue that the step is 
warranted considering the Supreme Court's opinion on the flag; I 
contend the Supreme Court's opinion requires my opposition to this 
rule.
  Mr. Speaker, it has almost become cliche to point out that we are a 
nation of laws, not persons. However, in this circumstance, that is 
exactly my point. The Supreme Court has spoken in an unambiguous way 
about the balancing of interests between the flag and the rights of 
individuals. On two separate occasions the right of individuals to 
speak has won.
  Instead of honoring the decisions of the Court, and thereby 
respecting the separation of powers within the federal government, the 
House leadership instead chose to play politics with the law. On this 
day we begin subjecting legal opinions to the whims of the legislative 
branch in a new and chilling way. Any coalition with close enough ties 
to the majority might hope to see their pet project ratified as an 
amendment to our Constitution.
  Mr. Speaker, not only this resolution, but also this very debate cast 
a long shadow over our long history of separation of powers. I contend 
it is our rights as citizens and our legal system that suffer. I oppose 
this rule.
  Mr. HASTINGS of Florida. Mr. Speaker, I yield back the balance of my 
time.
  Mr. LINDER. Mr. Speaker, I yield back the balance of my time, and I 
move the previous question on the resolution.
  The previous question was ordered.
  The resolution was agreed to.
  A motion to reconsider was laid on the table.

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