[Congressional Record Volume 152, Number 85 (Tuesday, June 27, 2006)]
[Senate]
[Pages S6503-S6511]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
FLAG DESECRATION AMENDMENT
The PRESIDING OFFICER. Under the previous order, the Senate will
resume consideration of S.J. Res. 12, which the clerk will report.
The assistant legislative clerk read as follows:
A resolution (S.J. Res. 12) proposing an amendment to the
Constitution of the United States authorizing Congress to
prohibit physical desecration of the flag of the United
States.
The PRESIDING OFFICER. The Senator from Utah.
Mr. HATCH. Mr. President, I would like to say a few words about this
amendment this morning because there seems to be a lot of
misunderstanding about it. There are those who believe this amendment
interferes with First Amendment rights and privileges. It does not. The
media has largely portrayed this amendment as a ban on flag
desecration. It is not. This amendment is, pure and simple, a
restoration of the Constitution to what it was before unelected
jurists, in a 5 to 4 decision, changed it. In 1989, five justices ruled
that flag desecration, including burning the flag or any number of
similar offensive acts, is speech. Four of them, led by the opinion of
Justice Stevens, one of the most liberal members of the Court, found
that such conduct does not constitute speech.
Fifty State legislatures, both red States and blue States, have
called on us to pass this amendment. There are 60 up-front primary
cosponsors of this amendment. There are at least six others who have
said that they will vote for it. If that is all true, we are 1 vote
short of having 67, with just a few who may still be undecided. We are
hopeful that they will understand that this amendment simply says that
``Congress shall have power to prohibit the physical desecration of the
flag of the United States.'' In other words, in passing this amendment,
we would give to Congress the power that the Supreme Court took away
from it when they decided the Johnson case in 1989. That is very
important to understand.
Today, the distinguished chairman of the Judiciary Committee, Senator
Specter, is holding a hearing on Presidential signing statements, which
he and some others believe actually take away power from the Congress
of the United States.
We have heard various Members on both sides of the aisle get up and
say that they are tired of the other branches of Government, meaning
the executive and judicial branches, taking away powers from the
Congress. This amendment would restore power to Congress. That is its
importance.
The amendment does not ban anything. It does not require the creation
of a statute. It does not say what is and what is not desecration of
the flag. That would have to be defined later, assuming that the
Congress decides, under its own power, through its own Representatives,
to try to pass a statute that would define physical desecration of the
flag. And if Congress did, at some point in the future, decide to
exercise this power, then I believe that the good Members of Congress
would very narrowly construe in a statute what is and what is not
desecration of the flag.
Once again, fifty States, 50 State legislatures, every State in the
Union has called for this amendment. Sixty-six Senators, both Democrats
and Republicans, support this amendment. We are hopeful that there will
be one or two others who will vote with us, and I believe if we get
that 67th vote we will have 75.
In addition, anyone who tries to say that this proposed amendment
interferes with First Amendment rights has not read it, as many in the
media have not. This amendment would have no effect on the First
Amendment. It merely returns the power to protect the flag back to the
Congress of the United States.
In his speech yesterday, Senator Durbin, my dear colleague from
Illinois, who is the Democratic whip, suggested that this amendment is
unnecessary. He based his assertion on the supposition that there are
relatively few incidents of flag desecration. So why bother, was
basically his argument. Why should we address what appears to be a
matter of minor significance?
I will tell you why. As I stated, this amendment does not ban
anything. But let me assume, as Senator Durbin did, that it does. Just
one incident, just one, is enough to justify action. One flag burning
is enough, I think, for most people in this country. Principles are not
creatures of convenience, despite assertions to the contrary.
As my colleagues know, 48 States, plus the District of Columbia, had
anti-desecration measures on the books before 1989. It was then that
five unelected judges told those 48 sovereign entities that they were
wrong.
Do my colleagues know the basis for the ruling? Five lawyers decided
that all of these 48 State legislatures, as well as the District of
Columbia, were wrong and that their measures were unconstitutional. But
I ask, where does the Constitution say these measures are
unconstitutional? Where in the text of the Constitution does it say
this? The silence is deafening. We all know the Constitution does not
say these measures are unconstitutional. Five lawyers came to this
conclusion on the basis of a legal seance.
Now, I wonder, why did 48 States act in this area if anti-desecration
laws are unnecessary? I will tell you why. Incidents of flag
desecration are much more frequent than many of my colleagues have
suggested.
The Citizens' Flag Alliance has been cataloguing reported incidents
of flag desecration since 1994. Now, these are the incidents that are
made public generally in the media. Their list is by no means
comprehensive. There are many, many incidents of flag desecration, even
some that are extremely offensive or even obscene, that are just not
reported.
I know these people in the Flag Alliance. They are true citizen
activists. They do not have high-priced lobbyists and $500-an-hour
attorneys working for them. Many of them are working individuals who
are simply committed to the values and ideals the flag represents.
These hard-working individuals have devoted their time and energy
fighting for the right to protect these values.
The Citizens' Flag Alliance has kept an eye on the news throughout
the country to watch for reports of flag desecration. But with over
1,450 newspapers in this country it is no small feat to maintain a
comprehensive list. Despite the difficulties in tracking these
occurrences, the information that the Citizens' Flag Alliance has
gathered appears to counter my colleagues' suggestion that there were
not many incidents of flag desecration at all.
Since the Citizens' Flag Alliance began keeping count in 1994, there
have been over 130 recorded incidents of flag desecration. In small
rural areas as well as cities like Cincinnati, OH and Washington, DC,
some of these people have defiled the very meaning of the flag by
desecrating it, and, in many of those cases, more than one flag was
desecrated.
For example, 10 flags were vandalized at the American Legion building
on the Veterans of Foreign Wars post in New Hampshire just a few months
ago. And, just last week in New York, there was an incident in which
seven flags displayed on citizens' private property were desecrated and
burned.
These reported occurrences of flag desecration are simply the tip of
the iceberg. Besides the difficulties in monitoring the news for flag
desecration incidents, there are many other acts of flag desecration
that go unreported either because citizens know that the individual
responsible cannot be prosecuted thanks to the Supreme Court
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decisions or because the media just plain doesn't care.
I heard the other day that protesters recently desecrated an American
flag at the funeral of one of our fallen soldiers at Arlington
Cemetery. This is just in the last few weeks. I have yet to see this
reported by the press.
The bottom line is that, while this may not be a common offense, it
is an ongoing and perpetual offense against common decency. Like I
said, one flag desecration is enough for the majority of people in this
country, let alone hundreds of them.
Now, I would add that these counts miss the point. No matter how many
incidents of flag desecration, the American people, through their
representatives, should be allowed to pass judgment on this behavior.
The courts, including the Supreme Court, used to understand this. They
used to respect the considered judgment of the people's
representatives. They understood that the desecration of this unique
symbol, our symbol, the flag, had a unique impact on the communities
that suffer through these events. The opponents of this constitutional
amendment can only offer an admonition to grin and bear it, suggesting
that we should all be bigger people and not worry about those
desecrated flags.
I do not think my colleagues appreciate the harm done to these
communities when flags are desecrated on our Independence Day, on
Memorial Day, or on our Veterans Day.
The American people do. The American people understand that even one
such event is one too many.
Consider these accounts and tell me these communities have not
suffered. Let me refer to this chart. This is from the Las Vegas Review
Journal. It is entitled: ``Misdemeanor Filed in Flag Burning in Las
Vegas,'' dated September 14, 2004.
[Stephen Drew] Hampton burned a U.S. flag during a tribute
to the victims of the Sept. 11, 2001 terrorist attacks . . .
Hampton set fire to a U.S. flag and waved it around before he
was ushered out of the event by Las Vegas police and city
marshals. Hampton also burned a U.S. flag last year on Sept.
11 in front of the New York-New York Hotel & Casino.
We were not even talking about the flag amendment then. This is
simply the way some people handle our flag. This individual is by no
means the only example.
The fact is that this is not a partisan issue. The American people
want this amendment. This is an issue supported by Democrats,
Independents, and Republicans nationwide. This amendment is supported
in a bipartisan manner by both Democrats and Republicans in the Senate.
The problem is not that there is a rash of flag burning, although by
anybody's count you would have to say there certainly is. This is not
what this resolution is meant to address. Suggesting that we could only
legislate to protect against widespread flag desecration is a red
herring. What we are doing here is restoring the power of the American
people over their own communities.
Let's be honest about it. This amendment is a very simple amendment.
It says nothing about banning flag desecration. It does nothing to the
First Amendment. It simply says we are going to return this issue back
to the Congress where it should have been to begin with. This amendment
says these words:
The Congress shall have power to prohibit the physical
desecration of the flag of the United States.
Does that mean the Congress has to prohibit desecration of the flag?
No. Will the Congress? I hope so. But the Congress does not have to.
Even if, assuming this amendment is passed by this body and ratified by
38 States, Congress decides to bring forth a statute, it would still
have to have a super-majority vote in the Senate because of those who
would be opposed to it, who would filibuster it, and who would require
us to invoke cloture. Therefore, it would only pass after the whole
Congress has spent a considerable amount of time figuring out how best
to define flag desecration.
Mr. President, I notice the distinguished Senator from Florida is on
the floor and would like to make some remarks, so I will relinquish the
floor at this time.
The PRESIDING OFFICER. The Senator from Florida.
Mr. MARTINEZ. Mr. President, it is a real honor to follow the Senator
from Utah on an issue of constitutionality, where I know he has had a
great impact in the life of our Nation through the distinguished
history he has had as a Senator. I know from his many years of serving
in the Judiciary Committee that he is one who jealously guards and
understands the importance and the meaning of our Constitution.
Mr. President, I wish to speak on this issue of the amendment to
protect the flag of the United States, and I wish to begin by speaking
about it in a slightly different angle, as someone who, as a young boy
in school--I think it was when I reached the fifth grade--was charged
with the responsibility of raising the flag in the morning and then
bringing it down and protecting it and moving it into a safe place for
the evening, until the next school day. I did that for the entire
school year.
It was with great reverence and ceremony that this took place. I was,
I remember, empowered with this responsibility as a young boy, which
was one of the first I had, and I took it very seriously. The
interesting thing is, it was in another place, in another land, and it
was another flag. It was not the flag we honor and revere today, but it
was the flag of the country of my birth, Cuba.
But what I noticed then and came to notice here is that people place
great importance in symbols of national unity. No matter what country
or where we are, there are very special symbols that from time to time
touch a cord within the nation.
No greater evidence of the importance of this symbol can be given
than through the history of our country, the stories we have heard and
come to know of great heroism in battle, such as that of a soldier,
perhaps at great risk to his own life, who would go to save the flag,
go to save the colors--the symbol of the Nation he was fighting for and
representing. And many soldiers in the history of our Nation have done
just that.
So it seems almost odd there should be a heated debate. I understand
the reason for the debate. It is rooted in the principles of
constitutional freedom. It is rooted in the desire to honor those first
10 amendments to the Constitution, which are really what we call the
Bill of Rights and the right of free speech.
But I do recall, early in law school, studying constitutional law,
learning that all rights enshrined in the Constitution have certain
limits within them, that they all have certain boundaries, that there
is no such thing as unlimited rights. Although we treasure and value
our right of free speech, I do believe it is important we understand
there are some things that ought to be protected.
We protect our national monuments, not just because they are pieces
of property that are beautiful and what they represent, but it is
really more about the symbol of what they are. The national monuments
are protected because they are a symbol of something special in our
Nation, and it might be a person, it might be a historical moment in
time.
Likewise, this very special symbol of our Nation, our flag, is one I
believe we should also protect. It is protected in a simple way. It is
about the balance of power within our Nation. It is about the
difference between those things which are reserved for the judicial
branch and others which are placed in the hands of the legislative
branch.
What the Congress seeks to do in proposing this amendment to the
American people, in placing it in a place where it can now enshrine
forever what was attempted to be done legislatively a number of times,
which the courts have chosen to strike down, is to say the legislative
branch of Government, that branch closest to the people, elected by the
people, shall have the right and the power to prohibit the physical
desecration of the flag of the United States. That is what the article
would say:
The Congress shall have power to prohibit the physical
desecration of the flag of the United States.
When I was young, another life experience, now being shared by my
youngest son, was being a Boy Scout. We see Boy Scouts through the
halls of our Congress, visiting here, seeing our sacred monuments,
seeing our places where this Republic has been a beacon of hope, the
``shining city on a hill'' to
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many people around the world. When they come and relish what they see,
they come with a certain pride. They have learned also, as young boys,
to protect the flag, to defend the flag, to honor the flag, and to
treat it with that very special respect which is expected for something
as important as a symbol of national unity.
So I am an encouraged supporter of this amendment because I believe
it is important that as our Nation goes forward we always respect and
honor the opportunity and the right of those who disagree with the
policies of our Government to freely express themselves, to have no
place where they cannot speak. I understand the meaning of freedom, the
meaning of the right of free speech. However, I do also understand the
very special nature of what the flag represents. In that situation, I
believe there are many opportunities available to those who wish to
protest, to those who wish to express a point of view different from
the Government, that can be expressed in ways that do not afront, that
do not offend, and do not destroy that very important symbol of
national unity which we have made our flag and which our flag has been.
So I am proud today to support this amendment. I believe it is
important that it be a constitutional amendment because we know that
past efforts to legislatively fix the problem--to legislatively say to
all that this symbol of national unity is so important that we deem it
important enough to protect in a very special way--have been frustrated
by the inability of the courts to agree with a clear direction the
legislative branch has imposed on this. So then it is upon us to allow
the people of this country to vote on this issue and to allow the
various State legislative bodies to move on this issue and to seek to
preserve for evermore this symbol of national unity.
This amendment seeks to prevent the physical abuse of a symbol that
has served our country in many valuable ways through its history. It
does not do so by restricting anyone's speech but by addressing their
physical conduct. We are a free and vibrant people, and we owe that to
those who have gone before us, and to those who serve us now, in
protecting our national interests. Desecrating the flag does nothing to
celebrate or enhance our expressive freedoms, while it clearly
dishonors those who have seen the flag as a basis for their service and
sacrifice.
So I strongly urge my colleagues to support this amendment and
protect the most prominent and visible symbol of the freedom that
America represents to the world.
Mr. President, I yield the floor and suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The legislative clerk proceeded to call the roll.
Mr. FEINGOLD. Mr. President, I ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. FEINGOLD. Mr. President, I strongly oppose S.J. Res. 12. Make no
mistake, we are talking here today about modifying the Constitution of
the United States to permit the Government to criminalize conduct that
all of us find offensive and wrong, but that is protected by the first
amendment. This amendment would, for the first time, amend the Bill of
Rights. I cannot support this course.
Let me make one thing clear at the outset. Not a single Senator who
opposes the proposed constitutional amendment, as I do, supports
burning or otherwise showing disrespect to the flag. Not a single one.
None of us think it is ``OK'' to burn the flag. None of us view the
flag as ``just a piece of cloth.'' On those rare occasions when some
malcontent defiles or burns our flag, I join everyone in this Chamber
in condemning that action.
But we must also defend the right of all Americans to express their
views about their Government, however hateful or spiteful or
disrespectful those views may be, without fear of their Government
putting them in jail for those views. America is not simply a Nation of
symbols, it is a Nation of principles. And the most important principle
of all, the principle that has made this country a beacon of hope and
inspiration for oppressed peoples throughout the world, is the right of
free expression. This amendment threatens that right, so I must oppose
it.
We have heard at various times over the years that this amendment has
been debated that permitting protestors to burn the American flag sends
the wrong message to our children about patriotism and respect for our
country. I couldn't disagree more with that argument. We can send no
better, no stronger, no more meaningful message to our children about
the principles and the values of this country than if we oppose efforts
to undermine freedom of expression, even expression that is undeniably
offensive. When we uphold first amendment freedoms despite the efforts
of misguided and despicable people who want to provoke our wrath, we
explain what America is really about. Our country and our people are
far too strong to be threatened by those who burn the flag. That is a
lesson we should proudly teach our children.
Amending the first amendment so we can bring the full reach of the
criminal law and the power of the state down on political dissenters
will only encourage more people who want to grandstand their dissent
and imagine themselves ``martyrs for the cause.'' Indeed, we all know
what will happen the minute this amendment goes into force--more flag
burnings and other outrageous acts of disrespect of the flag, not
fewer. Will the amendment make these acts any more despicable than they
are now? Certainly not. Will it make us love the flag any more than we
do today? Absolutely not.
It has been almost exactly 17 years since the Supreme Court ruled
that flag burning is a form of political speech protected by the first
amendment. Proposals to amend the Constitution arose almost immediately
and have continued unabated. But while the interest of politicians in
this course of action seems as strong as ever, public interest in it
seems to be waning. Opinion polls show support for the amendment has
fallen. Amending the Constitution to prohibit flag desecration is just
not the foremost thing on the minds of the American people. Perhaps
that is because it is long since clear that our Republic can survive
quite well without this amendment. Nearly a generation has passed since
the Texas v. Johnson decision, and our Nation is still standing strong.
That alone shows that this amendment is a huge overreaction and an
entirely unnecessary step.
The last time that the full Senate voted on, and rejected, this
constitutional amendment was in the year 2000. I think it is fair to
say that patriotism since then has not only survived without this
amendment, it has flourished, and in very difficult times, much more
difficult than the country faced in 1989, when the Supreme Court struck
down flag desecration statutes, or in 1995 when I first voted on the
amendment in the Judiciary Committee.
Indeed, outward displays of patriotism are greater today than they
were in 2000. We all know why that is. Our country was viciously attack
on September 11, 2001, and America responded.
We didn't need a constitutional amendment to teach Americans how to
love their country. They showed us how to do it by entering burning
buildings to save their fellow citizens who were in danger, by standing
in line for hours to give blood, by driving hundreds of miles to search
through the rubble for survivors and to help in cleanup efforts, by
praying in their houses of worship for the victims of the attacks and
their families.
September 11 inspired our citizens to perform some of the most
selfless acts of bravery and patriotism we have seen in our entire
history. No constitutional amendment could ever match those acts as a
demonstration of patriotism, or create similar acts in the future. We
do not need a constitutional amendment to teach Americans how to love
their country or how to defend it from our enemies.
I know that many veterans fervently support this amendment. I deeply
respect their opinions and their right to urge the Congress to pass it.
But I also want the record to be clear that many of those who have
served our country in battle oppose the amendment as well. In 1999, a
number of veterans formed a group called the Veterans Defending the
Bill of Rights. These veterans, who served our country in five
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different wars, strongly believe it is wrong to pass an amendment to
protect the flag that takes away the freedom the flag represents. I'd
like to share with my colleagues the views of these brave veterans,
who, in my opinion, represent the very best of the American spirit.
Let me start with the words of a veteran of our current conflict in
Iraq. SPC Eric Eliason of Englewood, CO, served as an infantryman in
the Army for 3 years, including 1 year overseas as part of Operation
Iraqi Freedom. He said:
We volunteered to go to war to protect the freedoms in this
country, not watch them be taken away. . . . I consider
myself an independent-minded conservative, and believe that
creating unnecessary amendments to the U.S. Constitution is a
betrayal of conservative principles.
Another veteran, Brady Bustany of West Hollywood, CA, who served in
the Air Force during the gulf war, put it very simply. He said,
My military service was not about protecting the flag; it
was about protecting the freedoms behind it. The flag
amendment curtails free speech and expression in a way that
should frighten us all.
A veteran of the Korean war, Jack Heyman of Fort Myers Beach, FL,
whose great grandfather fought in the Civil War, whose father served in
World War I, and whose son served in Vietnam, explained his opposition
to the amendment this way:
I know of no American veteran who put his or her life on
the line to protect the sanctity of the flag. That was not
why we fulfilled our patriotic duty. We did so and still do
to protect our country and our way of life and to ensure that
our children enjoy the same freedoms for which we fought.
The leader of Veterans Defending the Bill of Rights is Professor Gary
May of the University of Southern Indiana. Professor May, whose father,
father-in-law, grandfather, and brother also served our country in the
Armed Forces, lost both legs in the Vietnam War on April 12, 1968, over
38 years ago. He opposes this amendment, and because of what he has
sacrificed for his country, he speaks more eloquently than I could ever
hope to about the danger of this amendment. Professor May testified at
the last Senate hearing held on the flag amendment, which, by the way,
was held more than 2 years ago, on March 10, 2004. Professor May said:
Freedom is what makes the United States of America strong
and great, and freedom, including the right to dissent, is
what has kept our democracy going for more than 200 years.
And it is freedom that will continue to keep it strong for my
children and the children of all the people like my father,
late father in law, grandfather, brother, me, and others like
us who served honorably and proudly for freedom.
The pride and honor we feel is not in the flag per see It
is in the principles for which it stands and the people who
have defended them. My pride and admiration is in our
country, its people and its fundamental principles. I am
grateful for the many heroes of our country--and especially
those in my family. All the sacrifices of those who went
before me would be for naught, if an amendment were added to
the Constitution that cut back on our First Amendment rights
for the first time in the history of our great Nation.
Professor May also provided in his statement excerpts from letters he
has received from other veterans who oppose the amendment.
One veteran, James Lubbock of St. Louis, MO, who served in World War
II and has two sons who served in the Vietnam war, said:
Let's not alter the Bill of Rights to save the flag. We
should respect the flag, but we should all cherish the Bill
of Rights much, much more.
These kinds of expressions move me deeply. The service of our troops
shows the awesome power of the American ideal. The willingness of our
young people to serve this country, to risk their lives, and endure
unimaginable hardships on our behalf is not to be taken lightly. I
believe that this remarkable spirit is inspired and nurtured by the
principles on which this country was founded, by our devotion to the
Constitution and the rule of law. We should not trifle with those
principles. Too much is at stake. We know that now more than ever.
Despite the expected close vote, it is clear that this is a political
exercise in an election year. We will spend several days of precious
floor time, as the legislative session winds down, debating a measure
that would undermine the Constitution while affecting only a handful of
miscreants each year.
As we do so, humanitarian catastrophes continue to unfold around the
world, posing a direct threat to international peace and stability and
affecting the lives of millions upon millions of people.
I sincerely hope we will remember what this debate today is really
about--not whether flag burning is a good idea, not whether we love and
respect our flag, not whether patriotism is worth encouraging and
celebrating, but whether the threat to our country from those who burn
the flag is so great--is so great--that we must sacrifice the power and
the majesty of the first amendment to the Constitution in order to
prosecute them.
In 1999--it just so happens the Presiding Officer is the son of this
man--the late Senator John Chafee, one of this country's great war
heroes at Guadalcanal and in the Korean war, testified before the
Judiciary Committee against this amendment. He said:
[W]e cannot mandate respect and pride in the flag. In fact
. . . taking steps to require citizens to respect the flag,
sullies its significance and symbolism.
Senator Chafee's words still echo in my mind. They should serve as a
caution to all of us who have the responsibility to vote on this
amendment. What kind of symbol of freedom and liberty will our flag be
if it has to be protected from misguided protesters by a constitutional
amendment?
In concluding, Mr. President, I pay tribute to you and your father. I
will vote to defend our Constitution against this ill-advised effort to
amend it. I urge my colleagues to vote for liberty and freedom and for
the first amendment by voting no on this constitutional amendment.
I ask unanimous consent that several letters be printed in the
Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
American Bar Association,
Governmental Affairs Office,
Washington, DC, June 9, 2006.
Hon. Patrick Leahy,
U.S. Senate, Russell Senate Office Building, Washington, DC.
Dear Senator Leahy: On behalf of the American Bar
Association, I write to urge you to vote against S.J. Res.
12, the proposed amendment to the U.S. Constitution that
would allow Congress to prohibit the physical desecration of
the flag of the United States.
Few things are more offensive to most Americans than the
desecration of our flag. But, as important as the flag is to
all of us, we must never protect it at the expense of the
constitionally protected freedoms it symbolizes. One of our
most precious rights is the right to express our
dissatisfaction with our government through peaceful words or
conduct, both of which are forms of political speech and
protected under the First Amendment, S.J. Res. 12 would
enshrine a restriction on our fundamental right to free
speech in the very document that protects our individual
liberties. For the first time in our Nation's history a
fundamental right would be denied for future generations.
The Bill of Rights has remained honored and intact, even
during great times of conflict and stress for our nation, for
over 200 years. As James Madison once stated, amending the
Constitution should he reserved for ``great and extraordinary
occasions.'' Infrequent incidents of flag desecration do not
warrant undermining the freedom of speech guaranteed under
the First Amendment. If we were to desecrate our Constitution
to protect the flag's cloth from insult, we would do it great
disservice to both.
All through human history, tyrannies have tried to enforce
obedience by prohibiting disrespect for the symbols of their
power. The American flag commands respect and love because of
our country's adherence to its values and promise of freedom,
not because of fiat and criminal law. America is not so
fragile and our citizens' patriotism is not so superficial
that they must be upheld by the mandate of a constitutional
amendment to protect the flag.
We urge you to defend and preserve our cherished
constitutional freedoms by rejecting S.J. Res. 12.
Sincerely,
Michael S. Greco.
____
Veterans for Common Sense,
Washington, DC, July 14, 2005.
Re Oppose the Flag Desecration Constitutional Amendment.
Dear Senator: We, the undersigned members of Veterans for
Common Sense, write to urge you to oppose S.J. Res. 12, the
proposed constitutional amendment to prohibit ``desecration''
of the flag. This proposed amendment is an attack on liberty,
and a disturbing distraction from the real concerns of our
nation's veterans.
Veterans for Common Sense (VCS) was founded on the
principle that in an age when
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the majority of public servants have never served in uniform,
the perspective of war veterans must play a key role in the
public debate over national security issues in order to
preserve the liberty veterans have fought and died to
protect. VCS was formed in 2002 by war veterans who believe
that we, the people of the United States of America, are most
secure when our country is strong and responsibly engaged
with the world. Three years later, our organization has over
12,000 members throughout the United States. Central to our
mission is supporting United States servicemen and women,
veterans and their families, and preserving American civil
liberties as guaranteed in the U.S. Constitution and its
amendments.
The United States is faced with a number of pressing
concerns related to national security and the quality of life
of veterans. We believe that the United States government and
military has a responsibility to maintain and continue its
work in Iraq so that the country comes out of this war as a
stable, secure and sovereign nation where its people have the
best opportunity for a decent and free life. The government
also has a responsibility to ensure that United States
servicemen and women come home safe.
Out of the 360,000 discharged veterans from Operation Iraqi
Freedom and Operation Enduring Freedom, nearly one in four
have already visited the Veterans Administration for physical
injuries or mental health counseling. Our government has a
duty and a responsibility to address both the traditional and
nontraditional effects of war, including battlefield
injuries, post-traumatic stress, and diseases resulting from
vaccines and toxic exposures.
These concerns should be on the top of the congressional
agenda this session. But instead of devoting its time and
resources to resolving these urgent challenges, Congress
apparently chooses to consider amending the Constitution to
prohibit a form of nonviolent expression. We are dismayed by
this choice.
We urge Congress to preserve American civil liberties as
guaranteed in the United States Constitution and its
amendments. When it comes to the measure under consideration,
we believe that the supposed threat of a few incidents of
flag burning does not justify the first ever amendment to the
First Amendment. The ability to express nonviolent dissent to
government policy is central to the American way of life, and
we are loathe to amend away this fundamental liberty.
As veterans, we are indeed offended by those who burn or
defile the flag. The flag is a cherished symbol of the
freedoms we fought to defend, and we honor it as such. But we
must not attempt to protect this symbol at a cost to the
freedoms it represents. The Constitution of the United States
has never been successfully amended to restrict liberty. To
do so now would betray the promise and ideal of America.
The proposed constitutional amendment to ban
``desecration'' of the flag threatens the civil liberties of
Americans. Further, it distracts from the real world concerns
of our active duty military personnel and veterans. Congress
should not be in the business of undermining freedom of
speech. During this time of war, we urge you to put this
unnecessary and dangerous constitutional amendment aside, and
instead focus on protecting our national security, insuring
our servicemembers in harm's way have what they need to
accomplish the mission, and that when they return home they
get the best possible care. Again, please oppose S.J. Res.
12. If passed, it will undermine the Constitution that we
swore to support and defend.
Sincerely,
BG (Ret.) Evelyn Foote,
Army, Accokeek, MD and over 1300 veterans.
____
The American Jewish Committee, Office of Government and
International Affairs,
Washington, DC, June 22, 2006.
Re: Flag Desecration Amendment (S.J. Res. 12)
Dear Senator, On behalf of the American Jewish Committee,
the nation's oldest human relations organization with over
150,000 members and supporters represented by 33 regional
offices nationwide, I urge you to oppose !he Flag Desecration
Amendment (S.J. Res. 12). This amendment to the United States
Constitution would authorize Congress to prohibit the
physical desecration of the U.S. flag.
The Flag Desecration Amendment would encroach upon
Americans' First Amendment rights. While AJC would be
appalled by the burning of the flag for political purposes.
the amendment would undermine the very values of freedom of
expression and peaceful dissent that our flag represents. The
House of Representatives already passed its version or The
Flag Desecration Amendment one year ago. If adopted by the
Senate. this legislation would mark the first time Congress
has amended our founding charter to diminish the precious
freedoms protected by the Bill of Rights,
We therefore urge you to protect the First Amendment's
guarantee of freedom of expression by opposing S.J. Res. 12.
Thank you for considering our view on this matter.
Respectfully,
Richard T. Foltin,
Legislative Director and Counsel.
____
National Council of
Jewish Women,
June 23, 2006.
Dear Senator: I am writing on behalf of the 90,000 members
and supporters of the National Council of Jewish Women (NCJW)
in opposition to the proposed amendment to the Constitution
banning flag desecration (S.J. Res. 12).
NCJW is a volunteer organization, inspired by Jewish
values, that works to improve the quality of life for women,
children, and families and to ensure individual rights and
freedoms for all. As such, we feel amending the Constitution
in this way would threaten healthy civic debate, personal
freedom of expression, and our fundamental democratic values.
As a symbol of our nation, the United States' flag
represents our unique democracy and basic freedoms. The
burning of the American flag constitutes dissenting
expressive conduct, a right upheld by the US Supreme Court in
Texas v. Johnson (1989). This Supreme Court precedent and our
nation's history teach us that we must not protect this
symbol at the expense of weakening the rights it represents.
As a senator, you are entrusted with protecting the rights
and liberties of all Americans. I ask you to reaffirm your
commitment to protecting these rights by opposing this
egregious amendment.
Sincerely,
Phyllis Snyder,
NCJW President.
Mr. FEINGOLD. Mr. President, I yield the floor and suggest the
absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The legislative clerk proceeded to call the roll.
Mr. CARPER. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. CARPER. Mr. President, like each of our colleagues in the Senate,
I have a deep and abiding reverence for our flag.
As an 11-year-old Boy Scout, I learned flag etiquette and how we are
supposed to show our respect for the flag. Later, I attended Ohio State
University as a Navy ROTC midshipman and upon graduation took an oath
to defend our country and its Constitution against all enemies both
foreign and domestic.
I went on to serve our Nation as a naval flight officer for 23 years
of Active and Reserve duty during the Vietnam war and until the end of
the Cold War, much of it as a Navy P-3 mission commander.
We fly ``Old Glory'' on the front porch of our home throughout the
year. We display it proudly in my Senate offices in Georgetown, Dover,
and Wilmington, DE, as well as right here in Washington, DC.
Over the past 24 years, I have kicked off hundreds of townhall
meetings by inviting attendees to stand and join me in pledging
allegiance to our flag.
I wear an American flag lapel pin to work every day, and the American
flag is even displayed on the Chrysler minivan I drive all over my
little State.
I know it may sound old-fashioned or even corny to some, but I still
get a lump in my throat more often than not when I pledge allegiance to
our flag or sing our national anthem. In short, I love our flag and all
of the good that it symbolizes about America.
In fact, I probably love our flag more today than all the days I have
lived on this Earth. That is 59. But as much as I love our flag, I love
our Constitution even more.
The U.S. Constitution is the foundation of the longest living
experiment in democracy in the history of the world--America. Although
written by man, I believe our Constitution was divinely inspired.
Among the rights that it guarantees us as Americans, none is more
cherished than our right to freely express our beliefs. As much as we
may disagree with the views of others, our Constitution seeks to
guarantee that each of us has the right to convey our thoughts and
views, however outrageous the rest of us may find them to be.
Our Constitution has been amended only 17 times since 1791 and just 6
times in my lifetime.
We have amended the Constitution to protect our freedom of speech, to
worship God as we see fit, to protect our right to bear arms, and to
ensure the right to a trial by a jury of our peers.
We have amended our Constitution to protect us from unlawful searches
of our home and to guarantee our right to
[[Page S6508]]
assemble to present our grievances to those who serve us.
Constitutional amendments have abolished slavery, provided women and
18-year-old Americans with the right to vote, and limited our
Presidents to serving just two terms in office.
The original Framers of our Constitution made it possible to amend
the Constitution, but they did not make it easy. Our Founding Fathers
believed they largely ``got it right'' the first time. History has
demonstrated that they did.
When I served in Southeast Asia during the Vietnam war, flag burning
was not uncommon. I was never in the presence of anyone who desecrated
or destroyed our flag in protests then. It is hard to know for sure how
I would have reacted, but it would not have been pretty.
Having said that, it has been a long time since I ever saw anyone
burning or otherwise seeking to desecrate or destroy an American flag,
and I am not the only one who feels that way either.
Former Secretary of State Colin Powell wrote several years ago:
If someone destroys or desecrates a flag that is the
property of someone else, that is a prosecutable crime. If
someone is foolish enough to desecrate a flag that is their
own property, do we really want to amend the Constitution to
hammer a handful of miscreants?
In 1998, retired Green Beret Marvin Stenhammar testified before the
Senate Judiciary Committee and addressed the two same questions above
with this statement:
As a true conservative, I ask you: When did it become
conservative to recommend several changes to the
Constitution? My brand of conservatism does not include this
doctrine . . . I feel you--
``You'' being the Congress--
have better things to do with your time and our tax dollars
than changing the Constitution for something that rarely
occurs and is typically done by immature idiots.
sI have given this issue a lot of thought over the past 30 years. I
have searched my heart, and I have concluded that once we let our
passions subside, Colin Powell and Marvin Stenhammar have spoken the
truth.
Flag burning or desecration, as we think of it, rarely does occur in
this country today. In fact, last night, I was watching the news on
television with my youngest son. The footage the networks were showing
either dated back to the Vietnam war or they were images of foreigners
burning a flag in Iraq or some other foreign countries.
I think that begs the question: Do we really need to amend the
Constitution in an effort to eliminate a form of protest that almost
never happens in America today? I am not convinced that we do.
Come to think of it, I don't recall a time in my life when there was
a greater reverence for the American flag than there is today in our
country.
I was reminded of that fact just last summer when I marched in Fourth
of July parades throughout Delaware in places such as Hockessin,
Smyrna, Laurel, and Bethany Beach and saw literally thousands of people
of all ages waving, wearing, or displaying the stars and stripes.
All across America today, we see our flag proudly displayed on
millions of homes, office buildings, factories, schools, stadiums,
construction sites, bridges, and on the vehicles we drive.
A spirit of patriotism swept across our country since 9/11 in a way I
have never witnessed in my life, and it has never fully subsided. That
spirit is a source of comfort and inspiration to me, as I believe it is
to millions of Americans everywhere.
The ``miscreants'' or the ``idiots'' who used to burn flags here did
so to bring attention to their causes. They wanted to inflame passions
in order to garner broader media coverage for those causes.
A Washington Post editorial of June 27, 2005--1 year ago today--said
it better than I could. It said:
When was the last time you saw someone burning a flag? If
the answer is never, that's because it hardly ever happens.
In fact, one of the few certain consequences of passing this
amendment would be to make flag burning a more fashionable
form of protest.
Given human nature today, the Post is probably right.
Another problem with the amendment is that just as beauty is in the
eye of the beholder, so is flag desecration in several respects.
Most Americans would agree with us that burning an American flag in
protest constitutes desecration, but how about a person covered with
suntan lotion and perspiration lying on the sand on a hot sunny day at
Bethany Beach or any beach for hours on an American flag beach towel?
Or how about wearing an American flag swimsuit? What if a person wears
American flag underwear, a neckerchief, or a sweatband of the stars and
stripes?
What if they use their American flag neckerchief to wipe the dirt off
their face or maybe even blow their nose on it? Do we really want to
cause law enforcement officers, along with judges and prosecutors, to
wrestle with questions such as these or do we want them fighting
illegal drug trafficking, unlawful immigration, child abuse, assaults,
rapes, and murders, and other serious crimes that are far more
commonplace?
Let me suggest to my colleagues today not all behavior that dishonors
our flag involves the physical desecration. I believe we desecrate our
flag and what it symbolizes when we send American troops off to war
without the body armor that they and their Humvees are supposed to
have. I believe that we desecrate our flag and what it symbolizes if we
don't provide for the needs of our soldiers when they come up with
post-traumatic stress disorder, or without an arm, a leg, or their
eyesight.
I believe we desecrate what our flag symbolizes when we discourage
hundreds of thousands of Americans from voting by knowingly
misallocating voting machines in some parts of America, causing people
to give up after waiting for hours in line to cast their ballots.
I believe we desecrate what our flag symbolizes when we intimidate
people whose religious beliefs are different from our own and try to
compel them to worship God as we see fit. I believe that a handful of
corporate CEOs desecrate what the American flag symbolizes when they
loot the companies they lead and leave employees, pensioners,
shareholders, and the rest of us holding the bag.
I believe we desecrate this beloved symbol of our country when we run
up massive national debt that our children and our grandchildren will
spend the rest of their lives trying to dig out from under.
I believe we desecrate what our flag symbolizes when some politicians
who sought three deferments during an earlier war question the
patriotism of those of us who served three tours of duty there or left
three limbs on the battlefield of that war.
And I believe, my friends, that we desecrate all of the good that our
flag symbolizes about America when we call on other nations to abide by
the Geneva Conventions in providing humane treatment of the war
prisoners they hold while we do not.
Mr. President, how much time do I have remaining, please?
The PRESIDING OFFICER. Seventeen seconds.
Mr. CARPER. Mr. President, I yield back the remainder of my time, and
I will continue the rest of my speech at a later time today.
Mr. President, I yield the floor.
The PRESIDING OFFICER. The Senator from Texas.
Mr. CORNYN. Mr. President, is there an order in effect for a time
agreement? How much time do I have, in other words?
The PRESIDING OFFICER. The majority controls the time until 12:30.
Mr. CORNYN. Mr. President, I rise to address the resolution that is
before us today and to speak in favor of its adoption. But before I do
that, I think it is important first to read what the resolution says,
because I think what we are actually going to be voting on has been
misconstrued and, to some extent, inadvertently misrepresented. Also,
during the course of my comments, I would like to address those who say
that protecting Congress's prerogative to pass laws against flag
desecration and those who say it is not important and emphatically
disagree with them. And to those who say there are other things we can
and should be doing, I say, well, we have been very busy doing a lot of
very important things, but I certainly believe we have enough time in
our crowded schedule to address this important issue as well.
There are also those who say amending the Constitution is simply
something we should not do, even though we
[[Page S6509]]
have done so 27 times during the course of our Nation's history, and
even though the 27th amendment to the United States Constitution
provides that Congress can't increase its salary without having an
intervening election. If we can amend the Constitution for that, which
I agree is an important provision, we can certainly reinstate
Congress's authority to pass laws protecting our national emblems and
our national symbols such as the United States flag.
There are also those who try to get off--and again, I know people of
good faith have serious disagreements. I don't mean to disparage the
good faith of those who say this, but I would challenge those who say
we can pass a statute and avoid having to pass a constitutional
amendment. All I would say to that is: Been there. Done that. Doesn't
work. The Supreme Court held that subsequent statutory provision
unconstitutional, just like it did in the Texas case in 1989, the Texas
law that prohibited desecration of the flag.
First of all, let me read the constitutional amendment being
proposed, because there are some who say we are being asked to ban flag
burning. In fact, this is a restoration of the authority under the
Constitution to Congress to pass such laws as it deems appropriate, and
we can talk about what the details of those bills would be later on,
once the amendment is adopted. But it says, simply:
Resolved by the Senate and House of Representatives of the
United States of America in Congress assembled, 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.
The article says simply this:
The Congress shall have the power to prohibit the physical
desecration of the flag of the United States.
As I said, this constitutional amendment doesn't actually make it a
criminal act to desecrate the flag; it doesn't say what the penalties
will be. What this constitutional amendment does is reinstate
Congress's historical authority to protect the flag against desecration
and leave for a later date what exactly that statute, that bill, would
look like.
The reason I feel so strongly about this provision is because of the
unique nature of our national symbol. The American flag is a monument,
a symbol of our freedom, our country, and our way of life. Why in the
world would we refuse to protect it against desecration?
As a former President of the United States has noted:
We identify the flag with almost everything we hold dear on
Earth. It represents our peace and security, our civil and
political liberty, our freedom of religious worship, our
family, our friends, our home. We see it in the great
multitude of blessings of rights and privileges that make up
our country.
Another President has said it this way:
Our flag is a proud flag and it stands for liberty and
civilization. Where it has once floated, there must be no
return to tyranny.
We not only pledge allegiance to the flag each day in the Chamber of
the U.S. Senate; children across America recite those words at the
beginning of each school day, too. We celebrate Flag Day on June 14 of
each year. We pin to our lapels flag pins and paste it to the windows
of our cars and trucks. Following 9/11, you could hardly buy a flag,
because they were in such demand as a rallying symbol of American
patriotism and resolve in the wake of that awful attack, as depicted by
this well-remembered picture of first responders in New York erecting
the American flag out of the rubble following the deaths of 3,000
innocent Americans.
We insist on special rules of etiquette when a flag is handled. When
I was a Boy Scout growing up, that was one of the things you learned.
You learned flag etiquette, how to demonstrate respect for this unique
symbol of our country, including learning how, when the flag is old and
tattered, that special rules of etiquette dictate its disposal.
By displaying the flag, we demonstrate our gratitude to the
generations passed who have fought and died for our country. And we
remind ourselves of the obligation that we have to preserve our freedom
for the generations yet to come and to pass along to our children and
grandchildren the blessings of liberty that we have come to enjoy
because of the sacrifices of those who have gone before. We drape this
emblem over the coffins of those who have died in service to our
country, those who have given the last full measure of devotion to keep
us and our freedom safe. We proudly fly the flag over our Capitol here
in Washington, DC, and at State capitols and public buildings all over
our country.
Mr. President, recently I read a book about the most famous picture
in the history of photography. This is a picture we are going to put up
on this board that all of you will instantly recognize. This is a
picture of Marines erecting the American flag on Iwo Jima in World War
II, where thousands upon thousands of Marines gave their lives to take
this island from the occupiers. The book I read recently is called
``Flags of Our Fathers,'' written by a man named James Bradley; his
father was John. John Bradley, the father of the author, stands in the
middle of the most reproduced figure in the history of photography.
Only days before this photo was taken, John Bradley, a Navy corpsman,
had braved enemy mortar and machine gun fire to administer first aid to
a wounded Marine and then dragged him to safety. For this act of
heroism John Bradley would receive the Navy Cross, an award second only
to the Congressional Medal of Honor.
One of the amazing things about this book, ``Flags of Our Fathers,''
about this photograph and about John Bradley's service to his country
as a Marine Corpsman and the service of others of these Marines who
erected this flag on Iwo Jima in World War II, is that John Bradley,
like so many of the Greatest Generation, never spoke of this historic
moment or really much of his military service to his family or friends.
This reminds me a lot of my dad, who was a B-17 pilot in World War II
who, on his 13th mission helping to knock out part of Hitler's war
machine in Nazi Germany, was shot down and spent 4 months in a German
prison camp. And like John Bradley, my dad never talked much about his
military service. But James Bradley, John Bradley's son, discovered
three boxes of artifacts his father had saved about Iwo Jima after his
death, which launched him into a quest to find out a little bit more
about his father's past and the past of the five other flag-raisers
depicted in this picture.
This book explores the lives of all of these flag-raisers, showing
how in times of national crisis ordinary Americans have found within
themselves an uncommon courage and a capacity to attempt, and achieve,
the impossible.
Indeed, that is one of the things that makes the American flag
unique. What becomes of a country that has no special symbols; that
somehow, over the passage of time, has deemed itself too sophisticated,
too intelligent, too cynical to be choked by emotion when our flag is
raised or when the pledge is spoken or when our National Anthem is
sung?
During the Civil War, as James McPherson, a internationally known
historian of that period has noted:
The most meaningful symbol of regimental pride were the
colors--the regimental and national flags, which bonded the
men's loyalties to unit, State, and Nation.
He records one combatant as saying:
When the American flag appeared above the battle smoke on
the enemy works, it is impossible to describe the feelings
one experiences at such a moment. God, country, love, home,
pride, conscious strength and power, all crowd your swelling
breast. Proud, proud as a man can feel over this victory to
our arms. If it were a man's privilege to die when he wished,
he would die at that moment.
These are not my words; these are the words of those who, in the
service of their country, gained inspiration and purpose from this
symbol that is a unique symbol, unlike any other we have in this
country.
But ultimately, there are those on the floor of the U.S. Senate who
ask: Well, is this really important enough to amend the United States
Constitution? To those I would say, the question is not whether the
Constitution should be amended; it already has been by judicial decree.
The question then remains, who gets the final word? Five Justices on
the United States Supreme Court or we, the people?
Not important? I disagree. This, I believe, is the ultimate test of
our form
[[Page S6510]]
of government, based as it is upon consent of the government. Our
Founding Fathers recognized that our Constitution might need to be
amended over time and thus article V of the Constitution creates a
difficult but nevertheless a way forward to amend the Constitution when
the American people see fit.
Of course, this process will not stop upon this body's passage of
this amendment. Assuming we are able to get the two-thirds vote
requirement in the Senate and in the House, then it will go to the
States, where three-quarters of the States must ratify the amendment
for it to become the 28th amendment to the United States Constitution.
I believe, to quote the Declaration of Independence, that the powers
of the Federal Government emanate from ``the consent of the governed.''
In other words, I believe that we as a nation do not have to accept as
final the judgment of five Judges who, in 1989, in the Texas v. Johnson
case, held the Texas flag desecration law unconstitutional.
The amazing thing about this debate is I do not think there are very
many people who recognize that before 1989, when the U.S. Supreme Court
struck down the Texas flag desecration statute, 48 States, including
the District of Columbia, had laws criminalizing flag desecration--48
States. But, lo and behold, 200 years after its adoption, five Judges
decided that the first amendment of the Constitution of the United
States, which guarantees free speech, renders all of those 48 flag
desecration statutes unconstitutional as being a limitation on free
speech. Don't mind the fact that it is really not about speech, it is
about behavior. It is not about what you say, it is about what you do.
But the Supreme Court, five members of the Court, didn't seem to have
too much trouble with that.
Chief Justice Rehnquist, recently departed, in the dissent to that
case of Texas v. Johnson in 1989 that struck down all 48 flag
desecration statutes, wrote:
The American flag, then, throughout more than 200 years of
history, has come to be the visible symbol embodying our
Nation. It does not represent the views of any particular
political party, and it does not represent any particular
political philosophy. The flag is not simply another ``idea''
or ``point of view'' competing for recognition in the
marketplace of ideas. Millions and millions of Americans
[Chief Justice Rehnquist said] regard it with an almost
mystical reverence, regardless of what sort of social,
political or philosophical beliefs they may have. I cannot
agree that the first amendment invalidates the act of
Congress and the laws of 48 of the 50 States which make
criminal the public burning of the flag.
Justice Stevens, not necessarily of the same sort of judicial
ideology or bent as Chief Justice Rehnquist, also dissented, and he
said:
The flag is more than a proud symbol of the courage, the
determination, and the gifts of nature that transformed 13
fledgling Colonies into a world power. It is a symbol of
freedom, of equal opportunity, of religious tolerance, and of
good will for the other peoples who share our aspirations. .
. . The value of the flag as a symbol cannot be measured.
Justice Stevens concluded:
The case has nothing to do with ``disagreeable ideas.'' It
involves disagreeable conduct that, in my opinion, diminishes
the value of an important national asset . . .
And that Johnson, the defendant in that case, was punished only for
the means by which he expressed his opinion, not the opinion itself.
I mentioned a moment ago that there are those of our colleagues who
in good faith think that we can fix this problem by simply passing
another flag desecration statute in the U.S. Congress. I would point
out to my colleagues that we have already tried to do that right after
the Texas v. Johnson case. The U.S. Congress overwhelmingly passed a
statute which was struck down by the same five Justices on the U.S.
Supreme Court in a case called United States v. Eichman.
It is clear that no statute can pass constitutional muster as long as
the Texas v. Johnson decision is on the books. There are some who would
offer an amendment--maybe during the course of this debate--who in good
faith think that if they limit the reach of the statute to fighting
words, in other words some act that would provoke violence in a public
place, that somehow they have fixed the problem. But we are not just
talking about provoking people by what is tantamount to fighting words
by protecting the flag. We are talking about protecting a valuable
national symbol of all of the things our country has come to mean, both
to us and to those abroad; and that the good faith of our colleagues
notwithstanding, no statute that we might pass could possibly fix the
problem of five Judges assuming after 200 years that flag desecration
is protected speech, that it violates the first amendment of the
Constitution.
We all know as a matter of constitutional law that no statute can fix
a constitutional violation. So only a constitutional amendment, passed
by Congress and ratified by three-quarters of the States, could
possibly fix this problem.
Those who complain and say this is an imaginary problem, that we do
not have acts of flag desecration today or why are we talking about
this in 2006 if the Supreme Court held this flag desecration statute
unconstitutional in 1989, there is a very simple reason we are still
talking about it today. It is because we have been working on it under
the leadership of Senator Orrin Hatch and others for 11 years.
I think the first constitutional amendment that was introduced was in
1995, and we have gradually been making progress each year by getting
more and more support in the Senate. I hope our colleagues today will
meet the challenge and deliver the 67 votes needed in this Chamber in
order to move this constitutional amendment along.
To those who say this is an imaginary problem, I will say simply look
at the facts. The Citizens Flag Alliance has a Web site in which they
demonstrate 17 acts of flag desecration in the United States over the
last 2 years. It may be these are not widely reported in the press. I
am not sure exactly what the reason is. But there are 17 acts of flag
desecration just in the last 2 years. This is not a contrived or
imaginary issue.
I remember the ranking member of the Judiciary Committee, the Senator
from Vermont, saying he was vehemently against the constitutional
amendment because he didn't think we ought to tamper with the
Constitution--notwithstanding the Founding Fathers provided article V
to give us a means to amend the Constitution when a sufficient number
of people in the Congress and across the country see fit. But I think
he said something like: If anyone had the temerity to desecrate the
flag in his presence, they wouldn't need a statute criminalizing that
act. They would have to get past him to get to wherever it was they
were going, suggesting that perhaps individuals who were sufficiently
motivated might, through acts of violence, perhaps, dictate justice.
I do not think that is a sufficient answer. This is a real issue. It
is not contrived, as demonstrated by the 17 acts of desecration in the
last 2 years. It is not a problem we can fix by passing a statute and
patting ourselves on the back and saying: Yes, we fixed that problem.
This is a problem that calls for a constitutional amendment.
Yes, I know how serious that is. I don't lightly suggest amendments
to the Constitution. But I sincerely believe in my heart of hearts this
unique symbol of our country and all of our aspirations and dreams--not
only for people here but the kinds of aspirations and dreams that are a
beacon to those who will come here in the future, and the generations
that come here after--I believe it deserves special protection. Thus, I
believe we ought to take this opportunity to say yes.
Congress does have a voice in this. Yes, the American people do have
a voice in whether the flag is protected. The only way we can do that
is by passing this resolution by two-thirds of the Senate and moving
this process along and then leaving it up to the people of America, the
three-quarters of the States that will have to ratify this before it
becomes final. Let them have a word.
I yield the floor.
I suggest the absence of a quorum.
The ACTING PRESIDENT pro tempore. The clerk will call the roll.
The assistant legislative clerk proceeded to call the roll.
Mr. CORNYN. Mr. President, I ask unanimous consent the order for the
quorum call be rescinded.
The ACTING PRESIDENT pro tempore. Without objection, it is so
ordered.
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Mr. CORNYN. I thank the Chair.
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