[Congressional Record Volume 147, Number 99 (Tuesday, July 17, 2001)]
[House]
[Pages H4063-H4069]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




 AMENDMENT IN THE NATURE OF A SUBSTUTUTE OFFERED BY MR. WATT OF NORTH 
                                CAROLINA

  Mr. WATT of North Carolina. Mr. Speaker, I offer an amendment in the 
nature of a substitute.
  The SPEAKER pro tempore. The Clerk will designate the amendment in 
the nature of a substitute.
  The text of the amendment in the nature of a substitute is as 
follows:

       Amendment in the nature of a substitute offered by Mr. Watt 
     of North Carolina:
       Strike all after the resolving clause and insert the 
     following:
     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 seven years after the date of its submission 
     for ratification:

                              ``Article --

       ``Not inconsistent with the first article of amendment to 
     this Constitution, the Congress shall have power to prohibit 
     the physical desecration of the flag of the United States.''.

  The SPEAKER pro tempore. Pursuant to House Resolution 189, the 
gentleman from North Carolina (Mr. Watt) and a Member opposed each will 
control 30 minutes.
  Is the gentleman from Wisconsin (Mr. Sensenbrenner) opposed to the 
amendment in the nature of a substitute?
  Mr. SENSENBRENNER. Mr. Speaker, I rise in opposition to the amendment 
in the nature of a substitute.
  The SPEAKER pro tempore. The gentleman from Wisconsin (Mr. 
Sensenbrenner) will be recognized in opposition.
  The Chair recognizes the gentleman from North Carolina (Mr. Watt).
  Mr. WATT of North Carolina. Mr. Speaker, I yield 2 minutes to the 
gentleman from Texas (Mr. Green), outside of the debate on this 
amendment, to speak on general debate.
  Mr. GREEN of Texas. Mr. Speaker, I thank my colleague and classmate, 
the gentleman from North Carolina, for yielding time to me.
  Like our system goes here in Congress, I have a markup going on in 
the Committee on Energy and Commerce on the energy bill, and have been 
running back and forth. I appreciate the courtesy of the gentleman, my 
colleague, in yielding time to me.
  Mr. Speaker, I rise today in support of the resolution and as a proud 
cosponsor of the original resolution to

[[Page H4064]]

protect one of our Nation's most sacred and beloved symbols, our flag, 
from desecration.
  This is the fourth consecutive Congress that we have taken up this 
resolution. I hope this time our colleagues in the Senate will join us 
in passing this amendment and sending it on to the States for 
ratification.
  Our flag is a symbol of the men and women who have fought and died 
for our country. Their sacrifice is represented by that flag. To 
millions of Americans, the flag is more than just colored dye and 
cotton, it is the physical manifestation of our pride, our honor, and 
our dignity both here and around the world.
  To see it stomped, burned, or otherwise desecrated is an affront to 
ordinary hardworking Americans. We cannot do anything about someone 
doing it in other parts of the world, but we can do something about it 
in our own country.
  To those who argue that this sacred symbol is just a piece of cloth, 
I challenge them to remember some of the ways our flag is used: leading 
our athletes during opening ceremonies for the Olympics, flying at half 
staff to mark national tragedies, and covering the remains of our brave 
soldiers and service personnel who have given their lives for our 
country.
  When the flag is desecrated, so, too, are the moments in these 
memories. I hope my colleagues will join me in voting for this 
resolution.
  Mr. WATT of North Carolina. Mr. Speaker, I yield myself such time as 
I may consume.
  Mr. Speaker, the underlying proposed constitutional amendment that is 
the subject of this debate, and which has been the subject of general 
debate for now almost 2 hours, reads: ``The Congress shall have power 
to prohibit the physical desecration of the flag of the United 
States.''
  The proposed amendment in the nature of a substitute, which I am 
offering to the underlying proposed constitutional amendment, reads: 
``Not inconsistent with the first article of amendment to this 
Constitution, the Congress shall have power to prohibit the physical 
desecration of the flag of the United States.''
  We should be clear that many people think that the desecration, the 
burning of a flag, is a part of an expression against the United 
States, against some action of the United States, and is a protected 
means of speech. The Supreme Court has so held, and if the Supreme 
Court did not hold such, I think that we would be in a position where 
we could selectively decide who could burn a flag and who could not 
burn a flag based on whether we agreed with the expression that they 
were intending to make or whether we disagreed with the expression they 
intended to make.
  As we will hear, I am sure, from the gentleman from Virginia (Mr. 
Scott), who has studied this issue at some length, there are many, many 
occasions, and many of us in this House have been invited to occasions 
where the United States flag is burned. It is part of the ritual for 
doing away with a flag in a graceful way. That is an expression of our 
respect for the flag, because we have a designated way to dispose of 
the flag.
  On the other hand, when people rise and make a statement against the 
United States government, many of them, some of them, have chosen to 
make that expression against the United States by burning the flag.
  So when we talk about desecration of a flag or burning of a flag, one 
means of burning the flag would be protected when we agreed or the 
majority agreed with the expression that was being made.
  The other means, when we disagreed with the expression that the 
protester or person who was making a statement against the United 
States was making, then we would, in effect, be stopping that person 
from exercising their freedom of speech.
  The problem comes that if we put the proposed constitutional 
amendment in our Constitution as it is written, the Supreme Court is 
going to come to a very serious fork in the road. One amendment would 
say that we prohibit the physical desecration of the flag, and the 
Supreme Court has already held that in some cases that is 
constitutionally protected free speech. The first amendment will still 
be on the books, so the Supreme Court will have to decide which one of 
these constitutional amendments, the first amendment or this proposed 
constitutional amendment which we are debating, will it give precedence 
to.
  The amendment in the nature of a substitute resolves that dispute. It 
basically says that if one can do away with or if Congress can pass a 
law that prohibits the physical desecration of the flag of the United 
States in such a way that it does not impinge, does not discriminate 
against people who are expressing their views, then it can do so. But 
if the Congress passes a law which does impinge on the freedom of 
expression, then it should be clear that the first amendment to the 
Constitution, which has served this Nation well for low so many years, 
should be the controlling amendment to the Constitution.

                              {time}  1445

  And so it is in that context that we offer this substitute.
  I wanted to give this opening statement so that everybody would 
understand that we are trying to resolve a potential dispute between 
two potentially conflicting provisions in the Constitution.
  Mr. Speaker, having kind of framed the issue in that way, I reserve 
the balance of my time.
  Mr. SENSENBRENNER. Mr. Speaker, I yield myself such time as I may 
consume.
  Mr. Speaker, I rise in opposition to the amendment in the nature of a 
substitute by the gentleman from North Carolina (Mr. Watt). And so that 
the membership is clear what the gentleman from North Carolina (Mr. 
Watt) is trying to do, I would like to read his proposed constitutional 
amendment: ``Not inconsistent with the first article of amendment to 
this constitution, the Congress shall have the power to prohibit the 
physical desecration of the flag of the United States.''
  Now, the only difference between the substitute of the gentleman from 
North Carolina and House Joint Resolution 36 is the phrase ``not 
inconsistent with the first article of amendment to this 
constitution.'' What the substitute does is to punt this issue right 
back to the Supreme Court of the United States, because the Court 
twice, in a 5 to 4 decision in the Johnson and Eichman cases, allowed 
flag desecration based on first amendment grounds.
  This is kind of a not-so-subtle way of saying that the Supreme Court 
was right, because if we send this whole issue back to the Supreme 
Court, they will use the precedent that they established in 1989 and 
1990 as controlling and allow flag desecration to go on. But I think 
there is a greater issue involved than just the issue of whether or not 
the Constitution should be amended to prohibit flag desecration, and 
that is whether or not this House of Representatives should go along 
with unraveling the elaborate system of checks and balances put into 
our Constitution by the framers in order to prevent one branch of 
government from becoming too powerful.
  As I said during the general debate, Mr. Speaker, the amendment 
procedure for the Constitution of the United States was, in part, 
designed to prevent the courts from becoming too powerful. Three of the 
17 amendments that were proposed following the Bill of Rights, and 
ratified by the States, overturned court decisions that were determined 
not to be good law by the Congress and by three-quarters of the State 
legislatures.
  Now, if the gentleman from North Carolina and the supporters of his 
amendment want to toss this matter back to the courts, then just defeat 
the amendment that we are debating today. Because that will mean that 
the court decisions in Johnson and Eichman will be the controlling law 
until the Supreme Court changes its mind and either overrules or 
modifies its decisions.
  I believe that the House of Representatives today should hit this 
issue head on. If my colleagues do not want a constitutional amendment 
to protect the flag from physical desecration, then vote it down on the 
merits on the floor, but do not put this House on record saying that if 
we agree with the Supreme Court decision then we should

[[Page H4065]]

amend the Constitution in order to ratify that Supreme Court decision, 
because that is what the substitute offered by the gentleman from North 
Carolina does.
  Vote down the Watt substitute, pass the original amendment that has 
been reported by the Committee on the Judiciary.
  Mr. Speaker, I reserve the balance of my time.
  Mr. WATT of North Carolina. Mr. Speaker, I yield such time as he may 
consume to the gentleman from Virginia (Mr. Scott).
  Mr. SCOTT. Mr. Speaker, I rise in support of the Watt amendment, and 
I thank the gentleman for yielding me this time.
  Once again it is around the 4th of July, and we are discussing the 
current version of what is often referred to as the ``flag burning 
amendment.'' The gentleman from North Carolina has offered a meaningful 
alternative, one that will continue to protect the rights of free 
speech under the first amendment and is consistent with the opinions of 
former Senator John Glenn and Secretary of State Colin Powell, both of 
whom have spoken out in support of protecting the right of free speech 
and against the underlying amendment in its present form.
  The Supreme Court has considered the restrictions which are 
permissible by the Government under the first amendment. For example, 
with respect to speech, time, place and matter may generally be 
regulated, while content cannot. So if a group or individual wishes 
want to have a protest march, the Government can restrict the 
particulars of the march: what time it is held, where it is held, how 
loud it can be. But it cannot restrict what people are marching about. 
We cannot allow some marchers and ban others just because we disagree 
with the message.
  The only exception to the prohibition on regulation of content are 
situations, for example, where speech creates an imminent threat of 
violence. Burning a flag will not necessarily create an imminent threat 
of violence, particularly if someone is burning his own flag in his own 
back yard. Yet this is precisely the behavior prohibited by the 
underlying amendment.
  We should all understand that flags are burned every day in this 
country. Indeed, flag burning is considered the proper way to retire a 
flag. And every year around Flag Day or the 4th of July, flags are 
burned en masse in order to retire them. When these flags are burned, 
those attending the ceremony or doing the burning say something 
respectful about the flag. Flag burning under those circumstances is 
considered appropriate and would remain legal under this amendment. 
However, when protestors burn a flag in exactly the same manner, but 
when accompanied by words of protest, well, the underlying amendment 
would make that instance of flag burning illegal.
  So, if we say something nice while burning a flag, that is okay; but 
if something is said which offends the local sheriff as the flag is 
burned, then it would be illegal. This is nothing less than an attempt 
to suppress speech, and government officials should not be in the 
position of deciding which speech is good and which speech is bad. I 
believe the Watt amendment will help remedy this problem by requiring 
the criminalization of flag burning related to crimes must be 
consistent with the first amendment.
  Now, there would still be other problems, like what is a flag? Is a 
picture of a flag, a flag? What is desecration and what does that mean? 
Who gets to decide when an expression constitutes desecration? And what 
other symbols, like Bibles or copies of the Constitution, should also 
be protected? Those problems still remain, but I ask my colleagues to 
join me in supporting this amendment.
  Mr. SENSENBRENNER. Mr. Speaker, I yield such time as he may consume 
to the gentleman from Ohio (Mr. Chabot).
  Mr. CHABOT. Mr. Speaker, I thank the gentleman for yielding me this 
time, and I rise in opposition to the substitute amendment of the 
gentleman from North Carolina (Mr. Watt).
  The gentleman from Virginia (Mr. Scott) has, in essence, indicated 
that it is going to be difficult or perhaps impossible to differentiate 
between appropriate burning of the flag or proper burning of the flag 
and an inappropriate or desecrating of the flag. This argument has been 
made other times. How do we differentiate between the two? This is done 
by tradition and by practice. For 100 years, our courts and the 
American people were able to tell the difference between desecration 
and the proper disposal of worn flags.
  In the absence of a provision of some way to dispose of American 
flags, we would have to maintain them into perpetuity. It did not 
present a problem before, it has not throughout our Nation's history, 
and there is no reason to think it would be a problem now. In 1989, 
Congress passed the Flag Protection Act and was able to define 
desecration and flag. Additionally, the U.S. Code defines the terms and 
it always has.
  In any event, we trust the good common sense of the American people 
and the fairness of the courts to resolve any unforeseen problems. And, 
ultimately, that is what would happen if there was a disagreement on 
whether something was an appropriate disposal of a flag in one person's 
mind or desecration in the other. The courts could step in, as has 
happened in the past. We should be able to easily differentiate between 
a ceremony that many of us have gone to on Memorial Day, for example. 
Many of us go back into our districts and participate in those 
ceremonies. That is clearly different than a person who goes out and 
desecrates a flag or sets it on fire, as has happened.
  Again, some have argued this does not happen any more. It has 
happened 86 times in the recent past, in 29 States and in the District 
of Columbia and in Puerto Rico, for example. We are able to 
differentiate, just as we are able to differentiate, for example, a 
surgeon who has a scalpel and operates on a person to assist them, to 
do something, to cure a disease or to cure some problem that person has 
from another person coming up with a knife and stabbing a person with 
it. It is easy to differentiate between the two, just as it is easy to 
differentiate between appropriate disposal of the flag and not 
appropriate disposal.
  The gentleman's substitute amendment, again, says ``not inconsistent 
with the first article of amendment of this constitution.'' We already 
know what this Supreme Court, at least five of the justices of the 
Supreme Court, think about desecration of the flag. We know that they 
think that it amounts to expression and that that is protected by the 
first amendment in that 5 to 4 decision. And since this language would 
come first in the amendment, it would be controlling. So, in essence, 
if we would pass the substitute amendment of the gentleman from North 
Carolina as he proposes, it would appear that we are passing an 
amendment to protect the flag, to stop desecration of the flag in this 
country; but in essence, we would be passing absolutely nothing. It 
would be a sham. For that reason, I oppose the amendment.
  Mr. WATT of North Carolina. Mr. Speaker, I yield 5 minutes to the 
gentleman from Virginia (Mr. Moran).
  Mr. MORAN of Virginia. Mr. Speaker, I rise in opposition to this 
well-intentioned amendment. When I was first elected to the House, I 
cosponsored the flag burning amendment. I did so for many of the same 
reasons that proponents of the amendment have expressed today. It is 
disturbing to think of someone burning the flag of the United States. 
It is an action that holds in contempt the greatness of this Nation and 
all those who gave up their lives defending this symbol of freedom that 
our flag represents. It is an act for cowards.
  And yet looking back, I was moved by my heart more than my head. 
History informs us that the strength of America is derived from its 
basic ideals, one of the most important of which is tolerance for the 
full expression of ideas, even the most obnoxious ones.
  For more than 2 centuries, the first amendment to the Constitution 
has safeguarded the right of our people to write or publish almost 
anything without interference, to practice their religion freely and to 
protest against the Government in almost every way imaginable. It is a 
sign of our strength that, unlike so many repressive nations on earth, 
ours is a country with a constitution and a body of laws that 
accommodates a wide-ranging public debate. We must not become the first

[[Page H4066]]

Congress in U.S. history to chill public debate by tampering with the 
first amendment.
  Mr. Speaker, H. L. Mencken once said, ``The trouble with fighting for 
human freedom is that one spends most of one's time defending 
scoundrels, for it is against scoundrels that oppressive laws are first 
aimed. And oppression must be stopped at the beginning if it is to be 
stopped at all.'' Flag burners are generally scoundrels. On that much 
we would agree. But we ought not give them any more attention than they 
deserve.
  Mr. Speaker, former Senator Chuck Robb sacrificed his political 
career by doing such things as voting against this amendment in order 
to defend the very freedoms that the American flag represents.

                              {time}  1500

  In his Senate floor statement last year, he described how he had been 
prepared to give up his life in the Vietnam War in order to protect the 
very freedoms that this constitutional amendment would suppress. He did 
wind up giving up his political career by showing the courage to vote 
against this amendment.
  Not having fought in a war, I should do no less than Senator Robb did 
in defense of the freedom he and so many of my peers were willing to 
defend with their lives.
  This amendment should be defeated. I think the substitute amendment 
is appropriate. It should be supported. But this amendment should be 
defeated in our national interest, regardless of the consequences to 
our personal and political interests.
  Mr. SENSENBRENNER: Mr. Speaker, I yield 3 minutes to the gentleman 
from Florida (Mr. Stearns).
  Mr. STEARNS. Mr. Speaker, I rise against the substitute offered by 
the gentleman from North Carolina (Mr. Watt).
  We have seen this debate before where our side has proposed the flag 
constitutional amendment and we have seen your side always provide a 
substitute. Generally, your substitute has been a method to give you 
the ability to vote for it and still go back to your constituents and 
say that you believe that the physical desecration of the flag of the 
United States is bad. That is what your amendment is, quite simply. 
Because if you were really sincere about this debate, you would not 
have this sentence in your substitute amendment: ``Not inconsistent 
with the first article of amendment to this Constitution.''
  I am sure that my colleagues would be willing to explain why they 
would have that in if, in fact, they felt that the Congress should have 
the power to prohibit the physical desecration of the flag of the 
United States. But the fact that you put that in with a contingency 
would show that you do not really have your heart in this debate. This 
is really, in my opinion, just the opportunity for those who are in 
swing districts to have the opportunity to vote for something and vote 
against ours.
  When we look at what we have offered in the original flag 
constitutional amendment, H.J.Res. 36, we are simply saying that our 
flag is not just a piece of cloth, we are saying it is something much 
more. To desecrate it is to desecrate the memory of thousands of 
Americans who have sacrificed their lives to keep that banner flying 
intact. So it is to desecrate everything this country stands for.
  I would remind the Members who do not support our original amendment 
and support the substitute that we also note in our laws we protect our 
money from desecration, destruction. So if that is true for our money, 
why is that not true for the flag?
  Obviously there is a debate on this all the time and we cannot get 
complete support on this, but I think in this case that we can talk and 
talk and talk about first amendment rights and everything but clearly 
that your amendment is just really subterfuge to try to protect Members 
who want to have it both ways.
  Supreme Court Justice John Paul Stevens claims that the act of flag 
burning has nothing to do with disagreeable ideas, but rather involves 
conduct that diminishes the value of an important national asset. The 
act of flag burning is meant to provoke and arouse and not to reason. 
Flag burning is simply an act of cultural and patriotic destruction.
  The American people revere the flag of the United States as a unique 
symbol of our Nation, representing our commonly held belief in liberty 
and justice. Regardless of our ethnic, racial or religious diversity, 
the flag represent oneness as a people. The American flag has inspired 
men and women to accomplish courageous deeds that won our independence, 
made our Nation great and, of course, advanced our values throughout 
the world which the rest of the country is adopting. Mr. Speaker, I say 
we should defeat this substitute.
  Mr. WATT of North Carolina. Mr. Speaker, I yield myself such time as 
I may consume.
  First of all, let me address the comments made by my colleague, the 
gentleman from Florida (Mr. Stearns), and make it absolutely clear to 
him that for those of us who have different opinions about what the 
first amendment covers than yours, it does not mean that we do not have 
political heart. It just means we have a difference of opinion.
  Those of us who have stood for the first amendment to the 
Constitution are people like myself who, in the practice of law, 
actively defended the right of the Ku Klux Klan to march.
  Mr. Speaker, maybe my colleagues can say I do not have any heart. 
Maybe my colleagues can say I am looking for political cover. But when 
I go back into my community and stand up for the right of the KKK to 
march and express themselves, I think that gives some indication of 
what I feel about the first amendment and the right that all of us, I 
think, are fighting to protect, which is the right of people to express 
themselves, whether we agree with what they are saying or disagree with 
what they are saying.
  This is not about seeking political cover. This is about protecting 
the very Constitution that we are operating under and have been 
operating under for years and years.
  Mr. Speaker, I want to make that clear to the gentleman. This is not, 
as the gentleman characterized it, a political exercise. And the 
gentleman should also be clear that this is not the Republican side 
versus our side, that is the Democratic side. The last time I checked, 
there were people of goodwill, both Republicans and Democrats, on both 
sides of the aisle on this issue.
  The one thing that I think we all agree on is that we believe in this 
country and the principles on which it was founded, and we will all 
fight and defend those principles. I finally got to that point with the 
gentleman from California (Mr. Cunningham), my good friend, who is in 
the Chamber. We got past that. Let us not call names.
  Mr. STEARNS. Mr. Speaker, will the gentleman yield?
  Mr. WATT of North Carolina. I yield to the gentleman from Florida.
  Mr. STEARNS. Mr. Speaker, could the gentleman give me an example 
where in his mind the authors of this substitute give a specific 
example where the first amendment would be in conflict with physical 
desecration of the flag?
  Mr. WATT of North Carolina. Reclaiming my time, I have a very limited 
amount of time. Had the gentleman been on the floor at the outset of 
this debate, he would have heard what this amendment is all about. The 
only way I can do that now is to go back and restate it. It is in the 
record, though. I will just stand on the record.
  Mr. Speaker, I reserve the balance of my time.
  Mr. SENSENBRENNER. Mr. Speaker, I have no further requests for time, 
and I reserve the balance of my time to close.
  Mr. WATT of North Carolina. Mr. Speaker, I yield myself such time as 
I may consume.
  Mr. SCOTT. Mr. Speaker, will the gentleman yield?
  Mr. WATT of North Carolina. I yield to the gentleman from Virginia.
  Mr. SCOTT. Mr. Speaker, I ask the gentleman to yield so I can respond 
briefly to the gentleman from Florida (Mr. Stearns) because I think it 
is important to know about the importance of the first amendment.
  When we talk about some burning would be legal and some would not, if 
someone is being arrested because of the message, if someone is burning 
the flag and says something nice about the Vietnam War, would that be 
desecration? If someone says something in

[[Page H4067]]

protest of the Vietnam War, would that be desecration? It is the same 
act. If the local sheriff happens to be of a particular view on that, 
he would want to arrest the burner because he is offended.
  Mr. Speaker, that is why it is important that we have the first 
clause in the Watt amendment. It would have to be consistent with the 
first amendment. The first amendment would say that one cannot restrict 
by virtue of the content. We can restrict the way the flag is burned, 
the time the flag is burned, but not the message delivered when the 
burning is going on.
  Mr. WATT of North Carolina. Mr. Speaker, I thank the gentleman for 
his intervention.
  Mr. Speaker, in closing, first of all, I want to respond to the 
comments of the gentleman from Wisconsin (Mr. Sensenbrenner) that he 
made in his opening statement, that the effect of this proposed 
substitute would be to punt this proposed issue back to the United 
States Supreme Court.
  It is interesting that the chairman of the Committee on the Judiciary 
would say that, because, by passing the underlying proposal, we do not 
do away with the first amendment to the Constitution. The Supreme Court 
is going to have to reconcile this proposed constitutional amendment 
with the first amendment as it stands now; and so the notion that we 
are somehow, by not putting the language that we have proposed in the 
constitutional amendment, are going to save ourselves from the United 
States Supreme Court interpreting the first amendment is just not the 
case.
  At some point this issue is going back to the Supreme Court, whether 
it goes back under my substitute or whether it goes back under the 
proposed constitutional amendment.
  We can say to ourselves we have resolved this issue, but if in fact 
it is speech to burn a flag in the course of a demonstration or protest 
expressing one's self, if it was protected by the first amendment 
before this proposed constitutional amendment, then that act is still 
going to be protected by the first amendment unless the effect of this 
is to repeal the first amendment.
  So it is not as if we are doing away with the first amendment. In any 
event, this all must be resolved. I do not think there is any 
credibility in that analysis. This issue is going back to the Supreme 
Court, and the Supreme Court will reconcile whatever amendment we make.
  I am just trying to make it clear that in my order of priorities I 
want the first amendment to the Constitution, which has been on the 
books for all these years that our country has been around, to still be 
the preeminent amendment to the Constitution. I do not want something 
that this Congress has done in the heat of some political moment to 
supersede that.
  Second, I want to close by just saying how much I have come to 
welcome this debate. When we first started doing this 5 or 6 years ago, 
I actually resented having to do this every year. Now I actually think 
that it is a good debate for our country.
  Mr. Speaker, 5 or 6 years ago when I first started debating this, I 
used to think, as the gentleman from Florida (Mr. Stearns) now thinks, 
that everybody on the opposite side of this issue was unAmerican 
because they did not believe in the first amendment.
  Mr. Speaker, folks used to come in the Chamber and they would shout 
at me that I was unAmerican because I did not support what they wanted; 
and I would shout at them that they were unAmerican because they did 
not believe in what I believed in.

                              {time}  1515

  I think about 2 or 3 years into the debate, it became apparent to me 
that everybody on all sides of this issue is a patriot. And I think we 
finally got to that resolution last year or the year before last when 
we had a very, very dignified debate that allowed everybody to express 
their opinions on this proposed constitutional amendment, on the 
proposed substitute, and everybody went away understanding more fully 
what free speech and expression is all about and why we value our 
country as we do regardless of where we stand on this issue.
  There is dignity in this debate. It is not a partisan debate. It is 
not a racial debate. It is not a philosophical debate. This is all 
about what you think this country stands for and what you think the 
first amendment stands for. I applaud my colleagues for engaging in 
this dignified debate.
  Mr. Speaker, I yield back the balance of my time.
  Mr. SENSENBRENNER. Mr. Speaker, I yield myself the balance of my 
time.
  Mr. Speaker, I am willing to stipulate that everybody who has debated 
this question today, on either side of the issue, is just as patriotic 
as everybody else. There is a legitimate difference of opinion on 
whether or not we should propose a constitutional amendment for the 
States to consider and ratify to protect the United States flag from 
physical desecration. I think that the case is overwhelming on why we 
ought to do that.
  I would just like to cite one legal decision from my home State, in 
the case of the State of Wisconsin v. Matthew C. Janssen, Supreme Court 
of Wisconsin, decided on June 25, 1998, where the State Supreme Court, 
citing the Johnson and Eichman cases as precedent, declared 
unconstitutional the Wisconsin flag desecration statute in the case 
where the defendant defecated on the American flag. And there the court 
determined that because the defendant claimed that this disgusting act 
was a political expression, he could not be criminally prosecuted 
because the statute was unconstitutional.
  Now, if there ever was a reason why we should overturn the Johnson 
and Eichman cases, this decision of the Wisconsin Supreme Court, I 
believe, is a case in point. I think that whether one supports or 
opposes House Joint Resolution 36 goes down to a question of values. We 
have heard those values spoken today very eloquently on both sides. But 
I think that protecting the flag should be one of our paramount goals, 
because the flag does stand for all Americans. The flag does stand for 
the principles that are contained in the Declaration of Independence 
and the Constitution. The flag does stand for the values that 700,000 
young men and young women died for in the wars that this country has 
fought over the last 225 years. If we can say that it is a Federal 
crime to burn a dollar bill, we ought to be able to say it is a Federal 
crime to burn the American flag.
  I urge the defeat of the substitute and the passage of the 
constitutional amendment.
  Mr. CONYERS. Mr. Speaker, I strongly support the substitute offered 
by Mr. Watt.
  This substitute goes to the heart of what we're debating. If the 
sponsors of H.J. Res. 36 really believe that the proposed amendments 
does not supersede the First Amendment, they ought to have no problem 
supporting this substitute.
  And if H.J. Res. 36 does supersede the First Amendment, then the 
sponsors should have the courage to admit it--so the American people 
can make an informed decision about this issue.
  In my view it is clear that H.J. Res. 36 directly alters the free 
speech protections of the First Amendment. There can be no doubt that 
``symbolic speech'' relating to the flag falls squarely within the 
ambit of traditionally protected speech.
  Our nation was born in the dramatic symbolic speech of the Boston Tea 
Party, and our courts have long recognized that expressive speech 
associated with the flag is protected under the First Amendment.
  Also, as H.J. Res. 36 is currently drafted, it will allow Congress to 
outlay activities that go well beyond free speech. The amendment gives 
us no guidance whatsoever as to what if any provisions of the First 
Amendment, the Bill of Rights, or the Constitution in general that it 
is designed to overrule.
  Some have suggested that the amendment goes so far as to allow the 
criminalization of wearing clothing with the flag on it. This goes well 
beyond overturning the Johnson case and indicates that the flag 
desecration amendment could permit prosecution under statutes that were 
otherwise unconstitutionally void of vagueness.
  For example, the Supreme Court in 1974 declared unconstitutionally 
vague a statute that criminalized treating the flag contemptuously and 
did not uphold the conviction of an individual wearing a flag patch on 
his pants. So unless we clarify H.J. Res. 36, the legislation would 
allow such a prosecution despite that statute's vagueness.
  Finally, it is insufficient to respond to these concerns by asserting 
that the courts can easily work out the meaning of the terms in the 
same way that they have given meaning to other terms in the Bill of 
Rights such as ``due process.''
  Unlike the other provisions of the Bill of Rights, H.J. Res. 36 
represents an open-

[[Page H4068]]

ended and unchartered invasion of our rights and liberties, rather than 
a back-up mechanism to prevent the government from usurping our rights.
  I urge the Members to support the substitute and oppose altering the 
Bill of Rights.
  Mr. SENSENBRENNER. Mr. Speaker, I yield back the balance of my time.
  The SPEAKER pro tempore (Mr. Linder). Pursuant to House Resolution 
189, the previous question is ordered on the joint resolution and on 
the amendment in the nature of a substitute offered by the gentleman 
from North Carolina (Mr. Watt).
  The question is on the amendment in the nature of a substitute 
offered by the gentleman from North Carolina (Mr. Watt).
  The question was taken; and the Speaker pro tempore announced that 
the noes appeared to have it.
  Mr. WATT of North Carolina. Mr. Speaker, I object to the vote on the 
ground that a quorum is not present and make the point of order that a 
quorum is not present.
  The SPEAKER pro tempore. Evidently a quorum is not present.
  The Sergeant at Arms will notify absent Members.
  The vote was taken by electronic device, and there were--yeas 100, 
nays 324, not voting 9, as follows:

                             [Roll No. 231]

                               YEAS--100

     Abercrombie
     Allen
     Baldwin
     Barrett
     Becerra
     Berman
     Blagojevich
     Blumenauer
     Bonior
     Borski
     Boucher
     Brady (PA)
     Capuano
     Cardin
     Clay
     Clayton
     Clyburn
     Coyne
     Cummings
     Davis (IL)
     DeFazio
     Dicks
     Engel
     Etheridge
     Evans
     Fattah
     Frank
     Gonzalez
     Greenwood
     Gutierrez
     Hastings (FL)
     Hilliard
     Hinchey
     Hoeffel
     Hooley
     Hoyer
     Inslee
     Israel
     Jackson (IL)
     Jackson-Lee (TX)
     Johnson, E. B.
     Jones (OH)
     Kennedy (RI)
     Kilpatrick
     Kind (WI)
     Kleczka
     Kolbe
     LaFalce
     Lampson
     Lantos
     Larsen (WA)
     Larson (CT)
     Leach
     Lewis (GA)
     Lowey
     Maloney (NY)
     Markey
     Matheson
     Matsui
     McCarthy (MO)
     McCollum
     McGovern
     McKinney
     Meehan
     Meek (FL)
     Meeks (NY)
     Millender-McDonald
     Moran (VA)
     Nadler
     Neal
     Obey
     Olver
     Pastor
     Paul
     Payne
     Pelosi
     Price (NC)
     Rangel
     Roybal-Allard
     Rush
     Sabo
     Sanders
     Sandlin
     Sawyer
     Scott
     Shadegg
     Slaughter
     Tanner
     Tauscher
     Thompson (MS)
     Tierney
     Towns
     Udall (CO)
     Udall (NM)
     Visclosky
     Waters
     Watt (NC)
     Waxman
     Weiner
     Wexler

                               NAYS--324

     Ackerman
     Aderholt
     Akin
     Andrews
     Armey
     Baca
     Bachus
     Baird
     Baker
     Baldacci
     Ballenger
     Barcia
     Barr
     Bartlett
     Barton
     Bass
     Bentsen
     Bereuter
     Berkley
     Berry
     Biggert
     Bilirakis
     Blunt
     Boehlert
     Boehner
     Bonilla
     Bono
     Boswell
     Boyd
     Brady (TX)
     Brown (FL)
     Brown (OH)
     Brown (SC)
     Bryant
     Burr
     Burton
     Buyer
     Callahan
     Calvert
     Camp
     Cannon
     Cantor
     Capito
     Capps
     Carson (IN)
     Carson (OK)
     Castle
     Chabot
     Chambliss
     Clement
     Coble
     Collins
     Combest
     Condit
     Conyers
     Cooksey
     Costello
     Cox
     Cramer
     Crane
     Crenshaw
     Crowley
     Cubin
     Culberson
     Cunningham
     Davis (CA)
     Davis (FL)
     Davis, Jo Ann
     Davis, Tom
     Deal
     DeGette
     DeLauro
     DeLay
     DeMint
     Deutsch
     Diaz-Balart
     Dingell
     Doggett
     Dooley
     Doolittle
     Doyle
     Dreier
     Duncan
     Dunn
     Edwards
     Ehlers
     Ehrlich
     Emerson
     English
     Eshoo
     Everett
     Farr
     Ferguson
     Filner
     Flake
     Fletcher
     Foley
     Forbes
     Ford
     Fossella
     Frelinghuysen
     Frost
     Gallegly
     Ganske
     Gekas
     Gibbons
     Gilchrest
     Gillmor
     Gilman
     Goode
     Goodlatte
     Gordon
     Goss
     Graham
     Granger
     Graves
     Green (TX)
     Green (WI)
     Grucci
     Gutknecht
     Hall (OH)
     Hall (TX)
     Hansen
     Harman
     Hart
     Hastings (WA)
     Hayes
     Hayworth
     Hefley
     Herger
     Hill
     Hilleary
     Hinojosa
     Hobson
     Hoekstra
     Holden
     Holt
     Honda
     Horn
     Hostettler
     Houghton
     Hulshof
     Hunter
     Hutchinson
     Hyde
     Isakson
     Issa
     Istook
     Jenkins
     John
     Johnson (CT)
     Johnson (IL)
     Johnson, Sam
     Jones (NC)
     Kanjorski
     Kaptur
     Keller
     Kelly
     Kennedy (MN)
     Kerns
     Kildee
     King (NY)
     Kingston
     Kirk
     Knollenberg
     Kucinich
     LaHood
     Langevin
     Largent
     Latham
     LaTourette
     Lee
     Levin
     Lewis (CA)
     Lewis (KY)
     Linder
     Lipinski
     LoBiondo
     Lofgren
     Lucas (KY)
     Lucas (OK)
     Luther
     Maloney (CT)
     Manzullo
     Mascara
     McCarthy (NY)
     McCrery
     McDermott
     McHugh
     McInnis
     McIntyre
     McKeon
     McNulty
     Menendez
     Mica
     Miller (FL)
     Miller, Gary
     Miller, George
     Mink
     Mollohan
     Moore
     Moran (KS)
     Morella
     Murtha
     Myrick
     Napolitano
     Nethercutt
     Ney
     Northup
     Norwood
     Nussle
     Oberstar
     Ortiz
     Osborne
     Ose
     Otter
     Oxley
     Pallone
     Pascrell
     Pence
     Peterson (MN)
     Peterson (PA)
     Petri
     Phelps
     Pickering
     Pitts
     Platts
     Pombo
     Pomeroy
     Portman
     Pryce (OH)
     Putnam
     Quinn
     Radanovich
     Rahall
     Ramstad
     Regula
     Rehberg
     Reynolds
     Rivers
     Rodriguez
     Roemer
     Rogers (KY)
     Rogers (MI)
     Rohrabacher
     Ros-Lehtinen
     Ross
     Rothman
     Roukema
     Royce
     Ryan (WI)
     Ryun (KS)
     Sanchez
     Saxton
     Scarborough
     Schaffer
     Schakowsky
     Schrock
     Sensenbrenner
     Serrano
     Sessions
     Shaw
     Shays
     Sherman
     Sherwood
     Shimkus
     Shows
     Shuster
     Simmons
     Simpson
     Skeen
     Skelton
     Smith (MI)
     Smith (NJ)
     Smith (TX)
     Smith (WA)
     Snyder
     Solis
     Souder
     Spratt
     Stark
     Stearns
     Stenholm
     Strickland
     Stump
     Stupak
     Sununu
     Sweeney
     Tancredo
     Tauzin
     Taylor (MS)
     Taylor (NC)
     Terry
     Thomas
     Thompson (CA)
     Thornberry
     Thune
     Thurman
     Tiahrt
     Tiberi
     Toomey
     Traficant
     Turner
     Upton
     Velazquez
     Vitter
     Walden
     Walsh
     Wamp
     Watkins (OK)
     Watson (CA)
     Watts (OK)
     Weldon (FL)
     Weldon (PA)
     Weller
     Whitfield
     Wicker
     Wilson
     Wolf
     Woolsey
     Wu
     Wynn
     Young (AK)
     Young (FL)

                             NOT VOTING--9

     Bishop
     Delahunt
     Gephardt
     Jefferson
     Owens
     Reyes
     Riley
     Schiff
     Spence

                              {time}  1557

  Messrs. McINTYRE, DeMINT, THOMPSON of California, PICKERING, STARK, 
McDERMOTT, SERRANO, and Ms. LOFGREN, Ms. LEE, Mrs. NAPOLITANO, Ms. 
VELAZQUEZ, and Mrs. DAVIS of California changed their vote from ``yea'' 
to ``nay.''
  Messrs. RANGEL, ALLEN, DICKS, McGOVERN, and HILLIARD changed their 
vote from ``nay'' to ``yea.''
  So the amendment in the nature of a substitute was rejected.
  The result of the vote was announced as above recorded.
  The SPEAKER pro tempore (Mr. Linder). The question is on engrossment 
and third reading of the joint resolution.
  The joint resolution was ordered to be engrossed and read a third 
time, and was read the third time.
  The SPEAKER pro tempore. The question is on the passage of the joint 
resolution.
  The question was taken; and the Speaker pro tempore announced that 
the ayes appeared to have it.
  Mr. SENSENBRENNER. Mr. Speaker, on that I demand the yeas and nays.
  The yeas and nays were ordered.
  The vote was taken by electronic device, and there were--yeas 298, 
nays 125, not voting 10, as follows:

                             [Roll No. 232]

                               YEAS--298

     Aderholt
     Akin
     Andrews
     Armey
     Baca
     Bachus
     Baird
     Baker
     Baldacci
     Ballenger
     Barcia
     Barr
     Bartlett
     Barton
     Bass
     Bentsen
     Bereuter
     Berkley
     Berry
     Biggert
     Bilirakis
     Blagojevich
     Blunt
     Boehlert
     Boehner
     Bonilla
     Bono
     Boswell
     Boyd
     Brady (TX)
     Brown (FL)
     Brown (OH)
     Brown (SC)
     Bryant
     Burr
     Burton
     Buyer
     Callahan
     Calvert
     Camp
     Cannon
     Cantor
     Capito
     Capps
     Carson (OK)
     Castle
     Chabot
     Chambliss
     Clement
     Clyburn
     Coble
     Collins
     Combest
     Condit
     Cooksey
     Costello
     Cox
     Cramer
     Crane
     Crenshaw
     Crowley
     Cubin
     Culberson
     Cummings
     Cunningham
     Davis (FL)
     Davis, Jo Ann
     Davis, Tom
     Deal
     DeLay
     DeMint
     Deutsch
     Diaz-Balart
     Dooley
     Doolittle
     Doyle
     Duncan
     Dunn
     Edwards
     Ehrlich
     Emerson
     English
     Etheridge
     Everett
     Ferguson
     Fletcher
     Foley
     Forbes
     Ford
     Fossella
     Frelinghuysen
     Frost
     Gallegly
     Ganske
     Gekas
     Gibbons
     Gillmor
     Gilman
     Goode
     Goodlatte
     Gordon
     Goss
     Graham
     Granger
     Graves
     Green (TX)
     Green (WI)
     Grucci
     Gutierrez
     Gutknecht
     Hall (TX)
     Hansen
     Harman
     Hart
     Hastings (WA)
     Hayes
     Hayworth
     Hefley
     Herger
     Hilleary
     Hilliard
     Hinojosa
     Hobson
     Holden
     Horn
     Hostettler
     Houghton
     Hulshof
     Hunter
     Hutchinson
     Hyde
     Isakson
     Issa
     Istook
     Jenkins
     John
     Johnson (CT)
     Johnson (IL)
     Johnson, Sam
     Jones (NC)
     Kanjorski
     Kaptur
     Keller
     Kelly
     Kennedy (MN)
     Kerns
     Kildee
     King (NY)
     Kingston
     Kirk
     Knollenberg
     Kucinich
     LaHood

[[Page H4069]]


     Lampson
     Langevin
     Lantos
     Largent
     Larson (CT)
     Latham
     LaTourette
     Lewis (CA)
     Lewis (KY)
     Linder
     Lipinski
     LoBiondo
     Lucas (KY)
     Lucas (OK)
     Luther
     Maloney (CT)
     Manzullo
     Mascara
     McCarthy (NY)
     McCrery
     McGovern
     McHugh
     McInnis
     McIntyre
     McKeon
     McNulty
     Menendez
     Mica
     Millender-McDonald
     Miller (FL)
     Miller, Gary
     Mollohan
     Moran (KS)
     Morella
     Murtha
     Myrick
     Napolitano
     Neal
     Nethercutt
     Ney
     Northup
     Norwood
     Nussle
     Ortiz
     Osborne
     Ose
     Otter
     Oxley
     Pallone
     Pascrell
     Pence
     Peterson (PA)
     Phelps
     Pickering
     Pitts
     Platts
     Pombo
     Pomeroy
     Portman
     Pryce (OH)
     Putnam
     Quinn
     Radanovich
     Rahall
     Ramstad
     Regula
     Rehberg
     Reynolds
     Rodriguez
     Roemer
     Rogers (KY)
     Rogers (MI)
     Rohrabacher
     Ros-Lehtinen
     Ross
     Rothman
     Roukema
     Royce
     Rush
     Ryan (WI)
     Ryun (KS)
     Sanchez
     Sandlin
     Saxton
     Scarborough
     Schaffer
     Schrock
     Sensenbrenner
     Sessions
     Shaw
     Sherman
     Sherwood
     Shimkus
     Shows
     Shuster
     Simmons
     Simpson
     Skeen
     Skelton
     Smith (MI)
     Smith (NJ)
     Smith (TX)
     Smith (WA)
     Souder
     Spratt
     Stearns
     Stenholm
     Strickland
     Stump
     Stupak
     Sununu
     Sweeney
     Tancredo
     Tauzin
     Taylor (MS)
     Taylor (NC)
     Terry
     Thomas
     Thompson (MS)
     Thornberry
     Thune
     Thurman
     Tiahrt
     Tiberi
     Toomey
     Towns
     Traficant
     Turner
     Upton
     Vitter
     Walden
     Walsh
     Wamp
     Watkins (OK)
     Watts (OK)
     Weldon (FL)
     Weldon (PA)
     Weller
     Whitfield
     Wicker
     Wilson
     Wolf
     Wynn
     Young (AK)
     Young (FL)

                               NAYS--125

     Abercrombie
     Ackerman
     Allen
     Baldwin
     Barrett
     Becerra
     Berman
     Blumenauer
     Bonior
     Borski
     Boucher
     Brady (PA)
     Capuano
     Cardin
     Carson (IN)
     Clay
     Clayton
     Conyers
     Coyne
     Davis (CA)
     Davis (IL)
     DeFazio
     DeGette
     DeLauro
     Dicks
     Dingell
     Doggett
     Dreier
     Ehlers
     Engel
     Eshoo
     Evans
     Farr
     Fattah
     Filner
     Flake
     Frank
     Gilchrest
     Gonzalez
     Greenwood
     Hall (OH)
     Hastings (FL)
     Hill
     Hinchey
     Hoeffel
     Hoekstra
     Holt
     Honda
     Hooley
     Hoyer
     Inslee
     Israel
     Jackson (IL)
     Jackson-Lee (TX)
     Johnson, E. B.
     Jones (OH)
     Kennedy (RI)
     Kilpatrick
     Kind (WI)
     Kleczka
     LaFalce
     Larsen (WA)
     Leach
     Lee
     Levin
     Lewis (GA)
     Lofgren
     Lowey
     Maloney (NY)
     Markey
     Matheson
     Matsui
     McCarthy (MO)
     McCollum
     McDermott
     McKinney
     Meehan
     Meek (FL)
     Meeks (NY)
     Miller, George
     Mink
     Moore
     Moran (VA)
     Nadler
     Oberstar
     Obey
     Olver
     Pastor
     Paul
     Payne
     Pelosi
     Peterson (MN)
     Petri
     Price (NC)
     Rangel
     Rivers
     Roybal-Allard
     Sabo
     Sanders
     Sawyer
     Schakowsky
     Scott
     Serrano
     Shadegg
     Shays
     Slaughter
     Snyder
     Solis
     Stark
     Tanner
     Tauscher
     Thompson (CA)
     Tierney
     Udall (CO)
     Udall (NM)
     Velazquez
     Visclosky
     Waters
     Watson (CA)
     Watt (NC)
     Waxman
     Weiner
     Wexler
     Woolsey
     Wu

                             NOT VOTING--10

     Bishop
     Delahunt
     Gephardt
     Jefferson
     Kolbe
     Owens
     Reyes
     Riley
     Schiff
     Spence

                              {time}  1614

  So (two-thirds having voted in favor thereof) the joint resolution 
was passed.
  The result of the vote was announced as above recorded.
  A motion to reconsider was laid on the table.
  Stated for:
  Mr. PETERSON of Minnesota. Mr. Speaker, during rollcall vote No. 232 
on H.J. Res. 36, I mistakenly recorded my vote as ``nay'' when I should 
have voted ``aye''.
  Stated against:
  Mr. KOLBE. Earlier today, I was absent during the vote on final 
passage of 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.
  Had I been present, I would have voted ``nay'' on this vote, No. 232.

                          ____________________