[Congressional Record Volume 149, Number 81 (Wednesday, June 4, 2003)]
[Extensions of Remarks]
[Page E1133]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




  CONSTITUTIONAL AMENDMENT AUTHORIZING CONGRESS TO PROHIBIT PHYSICAL 
              DESECRATION OF THE FLAG OF THE UNITED STATES

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                             HON. TOM UDALL

                             of new mexico

                    in the house of representatives

                        Wednesday, June 4, 2003

  Mr. UDALL of New Mexico. Mr. Speaker, I rise today in opposition to 
H.J. Res. 4, the proposed amendment to the Constitution to prohibit the 
physical desecration of the United States flag. I respect our flag, 
what it stands for, and personally deplore acts of desecration against 
the flag. However, I believe that our commitment to respecting our flag 
while preserving our fundamental freedoms, as symbolized by our flag 
and embodied in the Constitution and Bill of Rights, can be met without 
amending the Constitution.
  Many Members of Congress see continued tension between ``free 
speech'' decisions of the Supreme Court, which protect flag desecration 
as an expression of first amendment speech, and the symbolic 
significance of the United States flag. Consequently, every Congress 
that has convened since those decisions were issued has considered 
possible measures to permit the punishment of those who engage in flag 
desecration. However, the amendment offered today by the majority would 
diminish the First Amendment's guarantee of freedom of expression, one 
of our most fundamental guarantees of the Bill of Rights.
  Amending the U.S. Constitution is necessarily and understandably a 
rigorous task. To become the law of the land, the flag desecration 
amendment would have to get the approval of two-thirds of both chambers 
of Congress and then be ratified by three quarters of the state 
legislatures. The fact that only 27 amendments, including the Bill of 
Rights, the civil rights amendments, and women's suffrage, have been 
made to the Constitution in the past 200 years illuminates the 
infrequency of such legislative initiatives. Moreover, since its 
ratification in 1791, the Bill of Rights has not been altered in any 
manner. Consequently, I believe that passage of such an amendment would 
set a dangerous precedent for further erosion of our constitutional 
rights and freedoms.
  Not only is amending the Constitution a task that must not be taken 
lightly, we must be absolutely sure that it is necessary. In this case, 
I am not convinced that the requisite level of necessity has been met. 
For example, flag burning is an exceedingly rare occurrence--since the 
Supreme Court's free speech, flag desecration decisions, fewer than 10 
flag burning incidents have been reported each year.
  Considering this, I believe that amending the Constitution to address 
the shameful conduct of such a minute portion of our general populace 
is simply unnecessary. This conviction is generally supported by a 
letter sent to Senator Patrick Leahy in May 1999, in which General 
Colin Powell, now Secretary of State, wrote that ``The First Amendment 
exists to insure that freedom of speech and expression applies not just 
to that with which we agree or disagree, but also that which we find 
outrageous. I would not amend that great shield of democracy to hammer 
a few miscreants. The flag will be flying proudly long after they have 
slunk away.'' Secretary Powell, one of our most noted patriots and war 
heroes, obviously believes that diminishing our First Amendment rights 
is not the solution to the perceived problem at hand.
  Taking into account the infrequency of flag desecration, as noted by 
Secretary of State Powell, I question today what it is that we are 
trying to regulate: is it the act of physical desecration itself or 
rather the sentiment behind the action? I believe that H.J. Res. 4 
would affectively and severely abridge our rights of free expression. 
As such, I will oppose passage of this proposed constitutional 
amendment.

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