[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.
____________________