[Congressional Record Volume 150, Number 81 (Monday, June 14, 2004)]
[Senate]
[Pages S6743-S6745]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
NATIONAL PLEDGE OF ALLEGIANCE TO THE FLAG DAY
Mr. WARNER. Mr. President, I ask unanimous consent that the Senate
proceed to the immediate consideration of S. Res. 378, which was
submitted earlier today by Senator Cornyn.
The PRESIDING OFFICER. The clerk will report the resolution by title.
The legislative clerk read as follows:
A Senate resolution (S. Res. 378) designating June 14,
2004, as ``National Pledge of Allegiance to the Flag Day.''
There being no objection, the Senate proceeded to consider the
resolution.
Mr. CORNYN. Mr. President, I am pleased that the Senate will approve
S. Res. 378, designating today--June 14, 2004--as the National Pledge
of Allegiance to the Flag Day.
The resolution, which I introduced earlier today, is cosponsored by
several of my fellow Judiciary Committee members--Senators Feinstein,
Craig, Grassley, Chambliss, Graham of South Carolina, and DeWine. I
thank them.
For Americans across the land, today is a special day.
First of all, today is Flag Day. This morning, I was honored to
attend a Flag Day commemoration event at VFW Post 2494, located in the
city of Grand Prairie in my beloved home State of Texas. Flag Day is
the anniversary of the Flag Resolution of 1777. It was officially
established in a proclamation by President Woodrow Wilson on May 30,
1916, and on August 3, 1949, President Harry S. Truman signed an act of
Congress designating June 14 of each year as National Flag Day.
I look forward to Flag Day every year, because--as today's resolution
notes--Flag Day gives Americans across the land the opportunity to
remember and reaffirm that the United States flag is a unique symbol of
the United States and its ideals. Millions of Americans instinctively
look to the United States flag with reverence, in times of national
crisis and triumph alike. No other American symbol has been as
universally honored as the United States flag. The United States flag
has always played a unique role in honoring the men and women of the
Armed Forces who have died in defense of the United States. To the
countless families of loved ones who have died in defense of the United
States, the United States flag is a treasured possession and a poignant
memory of their loss.
But today is also special for another reason. As the resolution also
notes, today is the 50th anniversary of the modern version of the
Pledge of Allegiance. The pledge has come under attack in recent years,
however. Two years ago, a three-judge panel of the U.S. Court of
Appeals for the Ninth Circuit, the Federal court of appeals based in
San Francisco, ruled in the case of Newdow v. United States Congress,
328 F.3d 466 (9th Cir. 2002), that the establishment clause of the
first amendment of the Constitution forbids public school teachers from
leading willing students in the voluntary recitation of the Pledge of
Allegiance, simply because the pledge confirms that our Nation was
founded ``under God.''
Most Americans were alarmed by the decision, and rightly so. In
response, a majority of the Senate subcommittee on the Constitution,
Civil Rights and Property Rights filed the first amicus brief in the
U.S. Supreme Court defending the pledge on the merits. The Senate legal
counsel also filed a brief defending the pledge on behalf of the entire
U.S. Senate. Clearly, members of both parties reject the views of the
Ninth Circuit, the ACLU, and Americans United for the Separation of
Church and State, and instead believe in the constitutionality of the
Pledge of Allegiance.
Just last week, the subcommittee convened a hearing, entitled
``Beyond the Pledge of Allegiance: Hostility to Religious Expression in
the Public Square.'' At that hearing, scholars testified that our
courts have become so hostile to democracy and to religious expression
that they object even to patriotic references to God, such as those
contained in the pledge.
Let us be clear: There is nothing unconstitutional about pledging
allegiance to the flag. And thankfully, the U.S. Supreme Court reversed
the Ninth Circuit decision in the Newdow case just this morning.
The Court did so, however, solely on procedural grounds--leaving for
another day a determination by the Supreme Court as to whether it
agrees with the Ninth Circuit's decision striking down the Pledge as
unconstitutional.
I am glad to see that at least three members of the Supreme Court--
Chief Justice Rehnquist, Justice O'Connor, and Justice Thomas--
specifically acknowledged the constitutionality of the pledge in their
opinions this morning. Their expressions follow a long line of
statements in previous Supreme Court decisions supporting the Pledge.
See, e.g., Engel v. Vitale, 370 U.S. 421, 440 n.5 (1962) (Douglas, J.,
concurring) (``The Pledge of Allegiance . . . in no way run[s] contrary
to the First Amendment but recognize[s] only the guidance of God in our
national affairs.'') (quotations and citations omitted); Sch. Dist. of
Abington v. Schempp, 374 U.S. 203, 304 (1963) (Brennan, J., concurring)
(``The reference to divinity in the revised pledge of allegiance . . .
may merely recognize the historical fact that our Nation was believed
to have been founded `under God.' Thus reciting the pledge may be no
more of a religious exercise than the reading aloud of Lincoln's
Gettysburg Address, which contains an allusion to the same historical
fact.''); Lynch v. Donelly, 465 U.S. 668, 676 (1984) (``There is an
unbroken history of official acknowledgment by all three branches of
government of the role of religion in American life from at least 1789
. . . [E]xamples of reference to our religious heritage are found . . .
in the language `One Nation under God,' as part of the Pledge of
Allegiance to the American flag. That pledge is recited by many
thousands of public school children--and adults--every year.'');
Wallace v. Jaffree, 472 U.S. 38, 78 n.5 (1985) (O'Connor, J.,
concurring) (``In my view, the words `under God' in the Pledge . . .
serve as an acknowledgment of religion with `the legitimate secular
purposes of solemnizing public occasions, [and] expressing confidence
in the future.' ''); County of Allegheny v. ACLU, 492 U.S. 573, 602-3
(1989) (``Our previous opinions have considered in dicta the motto and
the pledge, characterizing them as consistent with the proposition that
government may not communicate an endorsement of religious belief.'');
see also Sherman v. Community Consolidated
[[Page S6744]]
Sch. Dist. 21, 980 F.2d 437 (7th Cir. 1992) (upholding
constitutionality of school district policy providing for voluntary
recitation of the Pledge).
However, the other five Justices of the Supreme Court--Justices
Stevens, Kennedy, Souter, Ginsburg, and Breyer--did not see fit to join
the other three Justices in supporting the constitutionality of the
pledge. They appear to have remained largely silent on the issue. I
hope that they are not sending a signal with their silence--a signal
that they may strike down the pledge in some future case. Certainly, by
reversing the Ninth Circuit on solely procedural grounds, they
effectively reserve for themselves the opportunity to strike down the
pledge in a future case.
The majority opinion does state that, ``as its history illustrates,
the Pledge of Allegiance evolved as a common public acknowledgement of
the ideals that our flag symbolizes. Its recitation is a patriotic
exercise designed to foster national unity and pride in those
principles.'' This passage suggests that the majority would uphold the
Pledge of Allegiance against constitutional attack under the
establishment clause. I hope that that is ultimately what the Court
will do. I hope that the Court will ultimately vote to uphold and
protect the Pledge of Allegiance.
I am not so optimistic about the Court voting to protect the flag
itself, however--as I wrote in an op-ed published in the Fort Worth
Star-Telegram just this morning, a copy of which I ask unanimous
consent be printed in the Record at the conclusion of my remarks.
The PRESIDING OFFICER. Without objection, it is so ordered.
(See exhibit 1.)
Mr. CORNYN. To be sure, from the founding, of our Nation until 1989,
the power to protect the flag was not in doubt. In Smith v. Goguen,
1974, the U.S. Supreme Court held, in a decision authored by Justice
Lewis Powell, that ``nothing prevents a legislature from defining with
substantial specificity what constitutes forbidden treatment of United
States flags.'' Justice Byron White stated in that same case that
``[i]t would be foolishness to suggest that the men who wrote the
Constitution thought they were violating it when they specified a flag
for the new Nation. . . . There would seem to be little question about
the power of Congress to forbid the mutilation of the Lincoln Memorial.
. . . The Flag is itself a monument, subject to similar protection.''
In Street v. New York, 1969, Chief Justice Earl Warren wrote that ``the
States and Federal Government do have the power to protect the flag
from acts of desecration and disgrace.'' Justice Hugo Black wrote in
that same case that ``[i]t passes my belief that anything in the
Federal Constitution bars a State from making the deliberate burning of
the American Flag an offense.'' And Justice Abe Fortas noted that ``the
States and the Federal Government have the power to protect the flag
from acts of desecration committed in public.'' More recently, Chief
Justice William Rehnquist, Justice John Paul Stevens, and Justice
Sandra Day O'Connor have all expressed their belief that nothing in the
first amendment prohibits protection of the flag.
Accordingly, until recently, 48 States have had laws on the books
protecting the flag--most of them patterned after the Uniform Flag Act
of 1917. The Federal Government enacted its own law in 1967. And
Congress reaffirmed that law in 1989 with the support of 91 Senators.
This historic power to protect the flag was eviscerated in 1989,
however when the U.S. Supreme Court issued the first of two decisions,
both decided by a bare 5 to 4 majority, declaring that flag desecration
constitutes speech protected by the first amendment. See Texas v.
Johnson, 1989, and United States v. Eichman, 1990.
Legal scholars agree that the flag protection amendment is the only
way to restore the law as it existed for most of our Nation's history.
Constitutional amendments are the only way for the American people to
reverse judicial constitutional decisions they reject. The Eleventh,
Fourteenth, Sixteenth, Nineteenth, Twenty-Fourth, and Twenty-Sixth
amendments were all ratified in order to reverse judicial decisions
with which the American people disagreed.
So I am pleased to be an original cosponsor of the flag protection
amendment, S.J. Res. 4. That resolution was introduced by Senator Hatch
and by my Democrat cosponsor of today's resolution, Senator Feinstein.
The amendment states simply that ``[t]he Congress shall have power to
prohibit the physical desecration of the flag of the United States.'' I
am proud to be an original cosponsor of the flag protection amendment,
because I firmly believe that the flag occupies a unique place in our
Nation and deserves constitutional recognition as such.
Of course, the first amendment guarantees freedom of speech, and
thankfully so. And of course, the requirement that constitutional
amendments be approved by two-thirds of each House of Congress and
three-fourths of the States guarantees that the liberties we hold dear
will not be taken away, just because we have acted today to protect the
U.S. flag against physical desecration.
Moreover, the first amendment itself already contains exceptions. For
example, the law does not allow individuals to yell ``Fire!'' in a
crowded theater--even though such laws do impose a burden on the
freedom of speech, albeit a minor one. Likewise, the vast majority of
Americans agree that the Nation is better off when our flag is
protected.
The House has approved the flag protection amendment five times in
the past five Congresses--including just last year. All 50 State
legislatures have approved resolutions asking Congress to give them the
opportunity to vote on the amendment. The last time that the amendment
was brought to a vote on the Senate floor, in 2000, 63 Senators voted
in favor of it--just four votes shy of the necessary two-thirds.
I urge my colleagues at least to give the States the opportunity to
consider this amendment. And I urge my colleagues at least to give
constitutional recognition to the importance of the United States flag
to millions of Americans--even if they ultimately would oppose
implementing legislation to protect the flag against physical
desecration.
After all, the flag protection amendment does nothing more than to
recognize that the United States flag occupies a unique position as the
symbol of our Nation and, accordingly, deserves constitutional
recognition as such. The amendment would empower Congress to take
action to protect the flag, but it would not require Congress to do
anything whatsoever.
There are many ways to express one's political views. But there is
only one United States flag--and it deserves constitutional protection.
I look forward to the debate over the flag protection amendment, and
I look forward to a decision of the U.S. Supreme Court affirming for
all time the constitutionality of the Pledge of Allegiance.
Until then, I am pleased that, because of the Senate's action today,
today will forever be known as the National Pledge of Allegiance to the
Flag Day.
Exhibit 1
[From the Fort Worth Star-Telegram, June 14, 2004]
Our Banner Deserves Constitutional Protection
(By John Cornyn)
For Americans everywhere, Flag Day is special. And today we
mark not only the annual celebration of the U.S. flag but
also the 50th anniversary of the modern Pledge of Allegiance.
The U.S. flag is a uniquely powerful symbol of our nation
and of our commitment to freedom and democracy. Therefore, it
is deeply regrettable that our democratic system of
government to date has not properly protected it.
A June 2 hearing of the Senate subcommittee on the
Constitution, Civil Rights and Property Rights got to the
heart of this problem.
Legal scholars testified that our courts have become so
hostile to democracy and to religious expression that even
patriotic references to God, such as those contained in the
Pledge of Allegiance, are being wrongly struck down by the
courts.
Let's be clear: There is nothing unconstitutional about
pledging allegiance to the flag. Yet a federal appeals court
in San Francisco struck down the pledge anyway simply because
it acknowledges that our nation was founded and exists
``under God.''
The U.S. Supreme Court will soon decide whether the First
Amendment forbids schoolteachers across America from leading
students in voluntary recitation of the pledge.
The vast majority of Americans believe that the pledge is
constitutional and reject
[[Page S6745]]
the views of the 9th Circuit Court and the American Civil
Liberties Union. A majority of the Constitution subcommittee
members filed the first amicus brief in the Supreme Court
defending the pledge on its merits.
Many legal observers predict that the Supreme Court will
reverse the 9th Circuit's decision. The same cannot be said,
however, for protecting the flag itself.
The ability to protect the flag against physical
desecration was not in doubt throughout most of American
history. For example, in 1974, the Supreme Court held that
``nothing prevents a legislature from defining with
substantial specificity what constitutes forbidden treatment
of United States flags.''
Congress' power to protect the flag has also been supported
by Chief Justices Earl Warren and William Rehnquist and
Justices Byron White, Hugo Black, Abe Fortas, John Paul
Stevens and Sandra Day O'Connor.
This power, however, was eviscerated in 1989 when the
Supreme Court decided by a 5-4 majority that flag desecration
constitutes speech protected by the First Amendment.
The flag deserves constitutional protection, and legal
scholars agree that the Flag Protection Amendment is the only
way to restore the law as it existed for most of our nation's
history. That is why the Constitution subcommittee recently
approved the amendment, and the full committee is scheduled
to vote on it this month.
The First Amendment guarantees freedom of speech, and
rightfully so. The requirement that constitutional amendments
be approved by two-thirds of each chamber of Congress and
three-fourths of the states guarantees that the liberties we
hold dear will not be taken away just because the American
people decide to take action to protect the U.S. flag against
physical desecration.
The House has approved the Flag Protection Amendment five
times in the past five Congresses--including just last year.
All 50 state legislatures have approved resolutions asking
Congress to give them the opportunity to vote on the
amendment.
The last time that the amendment was brought to a vote on
the Senate floor, in 2000, 63 senators voted in favor of it--
just four votes shy of the necessary two-thirds. This year,
the prospects for passage could be even better.
In times of national crisis and triumph alike, it is the
U.S. flag that Americans look to with reverence. No other
American symbol has been as universally honored.
In a time of war, it is even clearer that the flag plays a
unique role in honoring the men and women of the military who
died for the ideals that the flag represents.
If a soldier dies in defense of our nation, the United
States gives the family a flag in honor of that service. To
countless families, the flag is a treasured possession and a
poignant memory of their loss.
There are many ways to express one's political views. But
there is only one United States flag--and it deserves
constitutional protection.
Mr. REID. Mr. President, if I could proceed, it is very appropriate
that today--I do not know if the distinguished Chair knows this, being
as busy as he has been all day--the Supreme Court upheld our being able
to pledge allegiance to the flag. They did it on a procedural grounds,
but I do not think it matters. We won.
Mr. WARNER. I thank the distinguished leader for advising the Senate
of that. I had heard of that earlier today. I think it is most
appropriate that our colleague from Texas has acted. The Senate will
act without any further delay.
I ask unanimous consent that the resolution be agreed to, the
preamble be agreed to, the motion to reconsider be laid upon the table,
and that any statements relating to this matter be printed in the
Record.
The PRESIDING OFFICER. Without objection, it is so ordered.
The resolution (S. Res. 378) was agreed to.
The preamble was agreed to.
The resolution, with its preamble, reads as follows:
S. Res. 378
Whereas the United States flag is a unique symbol of the
United States and its ideals;
Whereas millions of Americans instinctively look to the
United States flag with reverence, in times of national
crisis and triumph alike;
Whereas no other American symbol has been as universally
honored as the United States flag;
Whereas the United States flag has always played a unique
role in honoring the men and women of the Armed Forces who
have died in defense of the United States;
Whereas to the countless families of loved ones who have
died in defense of the United States, the United States flag
is a treasured possession and a poignant memory of their
loss;
Whereas the Second Continental Congress adopted the Stars
and Stripes as the official flag of the United States on June
14, 1777;
Whereas Congress has designated June 14 as Flag Day (36
U.S.C. 110);
Whereas the Pledge of Allegiance is recited by millions of
Americans who wish to demonstrate their loyalty and
allegiance to the flag of the United States and to the
republic for which it stands;
Whereas President Eisenhower signed into law the modern
version of the Pledge of Allegiance on June 14, 1954 (Joint
Resolution entitled ``Joint Resolution to amend the pledge of
allegiance to the flag of the United States of America'',
Public Law 83-396, approved June 14, 1954), making Flag Day,
2004, the 50th anniversary of the modern version of the
Pledge of Allegiance;
Whereas a 3-judge panel of the United States Court of
Appeals for the Ninth Circuit ruled in Newdow v. United
States Congress, 328 F.3d 466 (9th Cir. 2002), that the words
``under God'' in the Pledge of Allegiance violate the
establishment clause of the first amendment of the
Constitution of the United States when recited voluntarily by
students in public schools;
Whereas on June 14, 2004, the Supreme Court issued a
decision, Elk Grove Unified School District v. Newdow (docket
number 02-1624), that reversed the decision of the United
States Court of Appeals for the Ninth Circuit in the Newdow
case solely on procedural grounds, but that leaves unresolved
whether the Supreme Court agrees with the decision of the
United States Court of Appeals for the Ninth Circuit to
strike down the Pledge of Allegiance as unconstitutional;
Whereas Congress, in 1954, believed that it was acting
constitutionally when it revised the Pledge of Allegiance;
Whereas the Senate believes that the Pledge of Allegiance,
as revised in 1954 and as recodified in 2002 (4 U.S.C. 4), is
a fully constitutional expression of patriotism; and
Whereas the Senate has twice acted by unanimous consent to
authorize the Senate Legal Counsel to defend the
constitutionality of the Pledge of Allegiance in the Federal
courts (Senate Resolution 134, 108th Congress, agreed to May
8, 2003, and Senate Resolution 292, 107th Congress, agreed to
June 26, 2002): Now, therefore, be it
Resolved, That the Senate--
(1) supports and reveres the United States flag and the
Pledge of Allegiance;
(2) strongly disapproves of the decision by the 3-judge
panel of the United States Court of Appeals for the Ninth
Circuit in Newdow v. United States Congress; and
(3) hereby designates June 14, 2004, as ``National Pledge
of Allegiance to the Flag Day''.
____________________