[Congressional Record Volume 151, Number 44 (Thursday, April 14, 2005)]
[Senate]
[Pages S3686-S3688]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. HATCH (for himself, Mrs. Feinstein, Mr. Thune, Mr. Talent, 
        Mr. Alexander, Mr. Allard, Mr. Allen, Mr. Baucus, Mr. 
        Brownback, Mr. Burns, Mr. Burr, Mr. Chambliss, Mr. Coburn, Mr. 
        Coleman, Ms. Collins, Mr. Cornyn, Mr. Craig, Mr. Crapo, Mr. 
        DeWine, Mr. Domenici, Mr. Ensign, Mr. Enzi, Mr. Frist, Mr. 
        Graham, Mr. Grassley, Mr. Inhofe, Mr. Kyl, Mrs. Lincoln, Mr. 
        Lott, Mr. Lugar, Mr. McCain, Mr. Roberts, Mr. Santorum, Mr. 
        Sessions, Mr. Shelby, Mr. Thomas, Mr. Vitter, Mr. Warner, Mr. 
        Bond, Mr. Bunning, Mr. DeMint, Mrs. Dole, Mr. Gregg, Mr. Hagel, 
        Mrs. Hutchison, Mr. Johnson, Mr. Martinez, Mr. Nelson of 
        Nebraska, Ms. Snowe, Mr. Specter, and Mr. Stevens):
  S.J. Res. 12. A joint resolution proposing an amendment to the 
Constitution of the United States authorizing Congress to prohibit the 
physical desecration of the flag of the United States; to the Committee 
on the Judiciary.
  Mr. HATCH. Mr. President, it is with a sense of honor that my friend 
and colleague, Senator Feinstein, and I rise to introduce a bipartisan 
constitutional amendment that would allow Congress to prohibit the 
physical desecration of the American flag.
  I am proud and privileged to be working again with my California 
colleague on this important proposal. Among our principal cosponsors 
are our colleagues Senator Thune and Senator Talent. It is heartening 
to us to see some of the Senate's newest Members come to this issue 
with the same passion that its original supporters still feel.
  This amendment is truly bipartisan. Today, we count 51 original 
cosponsors of this resolution. And, nearly two-thirds of the Members of 
this body have indicated their support. Those numbers seem to grow with 
each passing year.
  No doubt, some will still argue that this amendment is unnecessary. 
Fortunately, that refrain is gradually losing its punch.
  When this amendment eventually passes the Senate, as I believe that 
it will, our victory will not be attributed to the passions of the 
moment. Rather, it will be due to the tireless efforts of citizens 
committed to convincing their elected representatives that this 
amendment matters.
  I have heard from some Utahans who love our country's flag but are 
opposed to amending the Constitution. To them I would say, amending the 
Constitution should never be taken lightly. Yet after serious study of 
the issue, I have concluded there is no other way to guarantee that our 
flag is protected, as I will discuss in a few minutes.
  And, indeed, guaranteeing the physical integrity of the flag is a 
cause worth fighting for. The American people seem to understand what 
the opponents of this amendment fail to grasp. This amendment is a 
necessary statement that citizens still have some control over the 
destiny of this Nation and in maintaining the traditions and symbols 
that have helped to bind us together in all our diversity for over 200 
years.
  Those who oppose protecting the flag through a constitutional 
amendment are probably not aware of our constitutional history. Indeed, 
for most of America's history, our Nation's laws guaranteed the 
physical integrity of the American flag.
  These were laws no one questioned. No one every questioned that the 
simple act of providing legal protection for the flag, a unique symbol 
of our ties as a Nation, could somehow violate the Constitution.
  We should take a moment and recall what we were taught about the flag 
as schoolchildren. Our flag's 13 stripes show our origins. We started 
as 13 separate colonies that first became separate States and then one 
Nation through the Declaration of Independence and the American 
Revolution. The 50 stars on the field of blue represent what we have 
become: a Nation unified. And over the past 230 years, we have become 
ever more united in our commitment to the extension of liberty and 
equality.
  Among all of our differences, differences frequently reflected in 
this body, we do remain one Nation undivided and indivisible, and our 
flag is a simple but profound statement of that union. That is why we 
open the Senate each day by pledging our allegiance to the flag. It is 
a reminder of all that we have in common.
  Supreme Court Justice John Paul Stevens understood the significance 
of the flag's status when he wrote:

       A country's flag is a symbol of more than nationhood and 
     national unity. It also signifies the ideas that characterize 
     the society that has chosen that emblem as well as the 
     special history that has animated the growth and power of 
     those ideas . . . So it is with the American flag. It is more 
     than a proud symbol of the courage, the determination, and 
     the gifts of a nation that transformed 13 fledgling colonies 
     into a world power. It is a symbol of freedom, of equal 
     opportunity, of religious tolerance, and of goodwill for 
     other peoples who share our aspirations.

  There is a certain wisdom to Justice Stevens' statement that our 
constituents immediately grasp. Some polls show that over 80 percent of 
the American people support an amendment to protect the flag.
  Its unique character is represented in the diversity of the groups 
that have worked over the years to bring this amendment to fruition. 
Veterans, police, African Americans, Polish Americans, farmers, and so 
many more diverse groups see in the flag a symbol of our Nation; they 
understand that it is perfectly consistent with our constitutional 
traditions for us to protect it.
  Unfortunately, in 1989 the Supreme Court intervened and ovrrode every 
State law barring desecration of the American flag.
  None of these States has restricted first amendment political speech 
in any way.
  Their laws did not lead us down some slippery slope that would result 
in restraints on political opinions.
  These States drew reasonable distinctions between political speech 
and inflammatory and frequently violent acts.
  Yet in Texas v. Johnson, the Supreme Court held that a Texas statute, 
and others like it, that barred desecration of the American flag, 
violated core first amendment principles. That certainly would have 
been news to those who wrote the Constitution and our Bill of Rights.
  It was news, bad news, to the American people as well.
  So in response to this imprudent decision, the Senate acted quickly 
and passed The Flag Protection Act. It became law on October 28, 1989.
  Then, in 1990, the Court struck down even this legislation in United 
States v. Eichman.
  And that is why a constitutional amendment has become necessary.
  With due respect to our courts, and to my colleagues who continue to 
support these decisions, these legal arguments against flag protection 
just do not hold water.
  Detractors of our amendment contend that the first amendment 
guarantees the right to burn the American flag. It does no such thing.
  They contend it would carve out an exception to the first amendment 
as some say. It would not. Rather, it would reaffirm what was 
understood not only by those who ratified the Constitution but also by 
citizens of today: that the first amendment never guaranteed such 
expressive conduct. Whether one is an originalist or whether one 
believes in a living Constitution, this argument falls short.

[[Page S3687]]

  The American people have long distinguished between the first 
amendment's guarantee of an individual's right to speak his or her mind 
and the repulsive expression of desecrating the flag. For many years, 
the people's elected representatives in Congress and 49 State 
legislatures passed statutes prohibiting physical desecration of the 
flag, and our political speech thrived. It was just as robust as it is 
today.
  Yet in 1989, the Supreme Court's novel interpretation of the first 
amendment concluded that the people, their elected legislators, and the 
courts are no longer capable of making these reasonable distinctions, 
distinctions that we frequently make in this body such as when we 
prohibit speeches or demonstrations of any kind, even in the silent 
display of signs or banners, in the public galleries.
  The American people created the Constitution, and they reserved to 
themselves the right to amend the Constitution when they saw fit. Is it 
wrong to give the American people the opportunity to review whether the 
Supreme Court got it right in this case? I think not.
  The fact is, a Senator does not take an oath to support and defend 
the holdings of the Supreme Court. We take an oath to support the 
Constitution. And, it is entirely appropriate that when we think the 
Court gets it wrong, we correct it through proper constitutional 
devices, devices set out in the Constitution itself . . . Though it has 
been forgotten over the years, this is hardly a radical idea. It was 
one supported by the founders of both the Republican and Democratic 
parties, Thomas Jefferson and Abraham Lincoln.
  As some in this body have noted, our courts are now frequently 
attempting to identify a national consensus to justify contemporary 
interpretations of our constitutional guarantees. The progress of this 
amendment to protect the flag demonstrates to me at least just how such 
a consensus is supposed to develop. Through argument, through give and 
take, through debate--over time the American people, as reflected in 
the actions of their representatives, have become more sure than ever 
that they should have the opportunity to protect their flag through 
moderate and reasonable legislation.
  After September 11, citizens proudly flew the flag, defying the 
terrorist challenge to our core values of liberty and equality, and 
confirming its unique status as a symbol of our nation's strength and 
purpose. In the struggle that has followed, our flag stands as a 
reminder of the many personal sacrifices made to protect and strengthen 
our nation.
  And so, to protect this symbol, I am today introducing this 
amendment.
  I thank my colleagues, Senators Feinstein, Thune, and Talent for 
their work on this. I urge those who are not cosponsors of this 
amendment to keep an open mind as we debate this resolution.
  It is my hope that the Judiciary committee will move the resolution 
to the floor.
  And, in turn, I ask that our leadership ensure this resolution gets a 
vote on the floor.
  Mr. THUNE. Mr. President, today, it is my distinct honor and 
privilege to rise and speak on behalf of Senator Hatch, Senator 
Feinstein, Senator Talent, myself, and 47 other senators, as we 
introduce bipartisan legislation we believe to be long overdue. It is 
not reform legislation. It does not authorize new government programs, 
create new sources of tax revenue, or provide incentives to stimulate 
our economy. It is none of those things, but it is a matter of great 
importance. The events of 9/11 have reminded us all of that. It is, 
instead, legislation that speaks to the core of our beliefs and hopes 
as a Nation, and as a people. It is about a national treasure and a 
symbol of our country that the vast majority of Americans--and the 
majority of this great body, I might add--believe is worth special 
status and worthy of protection. It is about the American flag.
  Our American flag is more than mere cloth and ink. It is a symbol of 
the liberty and freedom that we enjoy today thanks to the immeasurable 
sacrifices of generations of Americans who came before us.
  It represents the fiber and strength of our values and it has been 
sanctified by the blood of those who died defending it.
  I rise today to call upon all members of this body to support a 
constitutional amendment that would give Congress the power to prohibit 
the physical desecration of the American flag. It would simply 
authorize, but not require, Congress to pass a law protecting the 
American flag.
  This amendment does not affect anyone's right to express their 
political beliefs.
  It would only allow Congress to prevent our flag from being used as a 
prop, to be desecrated in some ways simply not appropriate to even 
mention in these halls.
  This resolution and similar legislation have been the subject of 
debate before this body before. There is, in fact, a quite lengthy 
legislative history regarding efforts to protect the American flag from 
desecration. In 1989, the Supreme Court declared essentially that 
burning the American flag is ``free speech.'' That is a decision the 
American people should make, particularly when this country finds 
itself fighting for democracy and expending American lives for that 
cause, on battlefields overseas.
  South Dakota veterans and members of the armed forces from my State 
know exactly what I'm talking about, as I'm sure they do from every 
state represented in the Senate. In recent months, units of the 147th 
field artillery and 153rd engineer battalions of the South Dakota 
National Guard returned home after spending a difficult year in Iraq. 
Likewise, the 452nd ordinance company of the United States Army Reserve 
is preparing to depart for Iraq in September.
  My father, like many other veterans of World War II, understands the 
importance of taking this step. Veterans from across South Dakota have 
asked me to step up and defend the flag of this great Nation and today 
I am answering that call.
  Today, members of both political parties will introduce a proposed 
constitutional amendment that would give back to the American people 
the power to prevent the desecration of the American flag. We know the 
gravity of this legislation. There is nothing complex about this 
amendment, nor are there any hidden consequences. This amendment 
provides Congress with the power to outlaw desecration of the American 
flag, a right that is widely recognized by Madison, Jefferson, and 
Supreme Court Justice Hugo Black, one of the foremost advocates of 
first amendment freedoms.
  Most states officially advocate Congress passing legislation to 
protect the flag. Frankly, I do not see this as a first amendment 
issue.
  It is an attempt to restore the traditional protections to the symbol 
cherished so dearly by our Government and the people of the United 
States. Some acts are not accepted as ``free speech'' even in societies 
like ours where we consider free speech a cherished right. For example, 
an attempt to burn down this Capitol building as a political statement 
would never be viewed as someone's right of free speech. Our laws would 
not tolerate the causing of harm to other's property or life as an act 
of ``free speech.'' This flag happens to be the property of the 
American people, in my opinion, and this question should be put before 
the States and their people to decide how and if to protect it. I think 
the answer will come back as a resounding ``yes''.
  There is little doubt that the debate over state ratification will 
trigger a tremendous discussion over our values, beliefs and whether we 
will ultimately bestow a lasting honor on our traditions. Importantly, 
it will be an indication of how we recognize our servicemen and women 
who are sacrificing--right now--in Iraq and Afghanistan, to protect 
those traditions and values for us. Will we honor them, and all the 
veterans who served and died in wars for this country and our flag over 
the last 200 years? That's not a question which a court should hold the 
final answer.
  I believe the time has finally come. I believe our country wants this 
debate. The majority of this Senate, I believe, wants this amendment. 
We begin it here, and we begin it now. Let the debate begin.
  Mr. BURNS. Mr. President, I come to the floor today to voice my 
support for the flag amendment.
  The flag of the United States of America is a symbol of freedom. The 
flag of the United States of America

[[Page S3688]]

has been sanctified by the blood of thousands of U.S. soldiers who have 
fought across the world, and it must be protected from desecration. 
This proposed constitutional amendment would overturn the 1989 U.S. 
Supreme Court's 5-4 ruling which held that laws banning desecration of 
the U.S. flag were unconstitutional infringements on free speech and 
therefore a violation of the first amendment.
  I am proud of the first amendment right to free speech and will 
always ensure all Americans maintain that right. I am also proud of the 
American flag and the values behind it. The American flag flies over 
this great country as a symbol of liberty and patriotism. Desecration 
of the flag would be destruction of the core principles on which this 
great Nation was founded. I will continue to be an advocate on behalf 
of the American flag and the values the flag represents.
  I encourage my colleagues to support this measure and join me in 
ensuring the everlasting integrity of the American flag.

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