[Congressional Record Volume 152, Number 85 (Tuesday, June 27, 2006)]
[Senate]
[Pages S6516-S6547]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
FLAG DESECRATION AMENDMENT--Continued
Mr. INOUYE. Mr. President, I ask that I be permitted to use 6 minutes
of my party's time.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. INOUYE. Mr. President, I rise to speak against the proposed
constitutional amendment.
Since World War II, I have been involved directly or indirectly in 13
wars and conflicts: Korea, Vietnam, the Dominican Republic, Desert One,
Grenada, Lebanon, Panama, the Persian Gulf war, Somalia, Haiti,
Yugoslavia, Afghanistan, and now Iraq.
In all these wars and conflicts, there are several things in common.
First, American lives were lost and many young Americans were wounded
and will bear scars for the rest of their lives, and we must not
dishonor their memories by abandoning the freedoms for which they
sacrificed.
Second, in every war, great speeches are made and delivered
energizing our citizens to defend our unique American freedoms
contained within the Bill of Rights. I can still hear some of those
stirring words.
During the Second World War, very close friends of mine were lost.
Much blood was shed to preserve every American's constitutional
freedoms.
To be clear, I have no patience with those who defile our flag. It is
unpatriotic and deeply offensive to those who serve or who have served
in uniform. It angers me to see symbols of our country set on fire.
This objectionable expression is obscene, it is painful, it is
unpatriotic, but I believe Americans gave their lives in many wars to
make certain that all Americans have a right to express themselves,
even those who harbor hateful thoughts.
Our country is unique because our dissidents have a voice. Protecting
this freedom of expression, even when it hurts the most, is a true test
of our dedication to democracy.
As a commissioned military officer and as a U.S. Senator, I took an
oath to uphold and defend the Constitution. As a Senator, I have become
accustomed to being insulted and condemned by people who disagree with
me. I have been castigated for having cast votes that some call
unpatriotic or un-American. I believe that my actions were patriotic
and American, but those who criticize me have a right to disagree and
express their disagreement.
It is not always easy to serve the country with a Bill of Rights that
defends the rights of those who would defile our national symbol. While
I take offense at disrespect to the flag, I nonetheless believe it is
my continued duty as a veteran, as an American citizen, and as a United
States Senator to defend the constitutional right of protesters to use
the flag in nonviolent speech.
For over 200 years, our Bill of Rights has endured. It proclaims the
Government of the United States is limited in its powers, and this
sacred document continues to instruct and inspire people throughout the
world. And for the last 200 years, despite repeated efforts to tamper
with this document, we have always found the strength necessary to live
within these limits.
So today we must look inside ourselves once again and find the
strength to affirm our commitment to the precious liberties enshrined
in the Bill of Rights.
The PRESIDING OFFICER. The Senator from Oklahoma.
Mr. COBURN. Mr. President, I have great respect for the Senator from
Hawaii, for his service as a veteran, as well as his service in this
body, but I couldn't disagree more.
Our Founders used the word ``speech.'' They didn't say ``expression''
or ``expressive behavior.'' They used the word ``speech'' very
critically. It was discussed in the documents: What word will we use in
the Bill of Rights in this first amendment?
They chose the word ``speech'' because they meant speech. They didn't
mean behavior. They meant speech.
I think it is real important for the American people to understand
what this debate is all about. It is not about burning the flag. It is
about restoring the balance of the three branches of Government, and
that when one of the three becomes imbalanced, that we have the right
to restore that balance. Our Founders were wise in that regard
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to give us this vehicle of amending the Constitution.
We can talk about the flag all we want, but the real debate here is,
when an overwhelming majority of Americans agree with this and all 50
State legislatures have passed requests that we do this, why we don't
do this? The only way we have to balance the judiciary with the
legislative branch is to do it in a manner that represents the will of
the people as prescribed by our Founders.
Seven new Republican Senators were elected in 2004, and if there was
an issue that dominated that debate more than anything, it was, what
kind of judges are we going to put on the courts? Are we going to
confirm judges who take what they want, twist the Constitution into
what they believe, and change the basics of how we operate in this
country or are we going to put judges on the courts who understand that
they have a very limited role to interpret the Constitution, interpret
the treaties, and interpret the statutes of this country?
The reason we were sent here, the seven of us, the vast majority of
the impact of that election, was to have an impact on what kinds of
judges we were going to put on the courts. This is that same debate
coming from a different angle. Do we want a 5-to-4 decision where five
Members of the Court determine and twist what the real words of our
Constitution say--speech, not behavior; it says ``speech,'' not
behavior, not expressive conduct; it says ``speech''--and do we want to
allow that to continue to be twisted or do we want to reserve the right
for Congress to go through the method that our Founders allowed to
bring about a constitutional amendment that says we have the right to
control whether somebody can do that.
To vote against this amendment will limit the ability of this body to
hold on to its balanced share of one-third of the power of this
Government. This is about restoring the power of this body and the
House to, in fact, represent what the people in this country want in an
overwhelming majority in all 50 States.
It is not about burning the flag. It is about reestablishing the
proper role of the balance of the three branches that run this
country--the executive, the judiciary, and the legislative.
We are going to miss a great opportunity if we don't do this. It will
do two things: One, it will reestablish the power, but it will send a
signal that when judges take an oath, they have to follow the oath and
the oath is not to determine what they think is best based on what they
believe. Their oath is to follow the Constitution, not change it but
follow it; and No. 2, interpret the statutes and interpret the
treaties.
We have to reestablish a balance. This resolution is about
reestablishing that balance and sending the message that we are serious
that judges take their oath seriously, that they don't get to play
games with what they would like but they, in fact, have to uphold their
oath. They also have to follow what the Constitution says, and the
Constitution says the same thing as their oath. They don't get the
privilege of deciding what they want. They have the privilege of only
deciding what the Constitution says, what the statutes say, and what
the treaties say.
I remind the Members of this body that our Founders put the word
``speech'' in the first amendment on purpose. They didn't put the words
``expressive behavior.'' They used the word ``speech,'' and we ought to
establish the right of the Congress to establish within itself the
right to do what the American people want and to follow the
Constitution. That is what this is about.
There have been a lot of statements made about what would you do with
a flag; what about a bathing suit? The way you judge what is a flag is
what you drape over the coffin of one of our fallen soldiers. That is
how you judge what it is. That is what it means. You can't define what
it is other than the value of service and sacrifice that is part of the
heritage of this country. To say we cannot preserve the value of that
and bring back our constitutional responsibility to do that--No. 1,
which does follow the Constitution and, No. 2, is the desired will of
this country--means that we won't stand up to the obligations of our
office, and we ought to be very serious about it as we do that.
I yield the floor.
The PRESIDING OFFICER. The Senator from Kansas.
Mr. BROWNBACK. Mr. President, I rise today in full support of S.J.
Res. 12, the flag desecration resolution introduced by Senator Hatch.
The Senate has given this bill adequate consideration and it is now
time to pass it and send it to the States for ratification.
I have heard a lot of critics of the flag amendment incorrectly
characterize it as stifling free speech. Nothing could be further from
the truth. First, the amendment itself does not prohibit anything. The
constitutional amendment we are considering today restores to Congress
the power to protect the flag--a power the Congress freely exercised
until 1989, when the Supreme Court handed down 5 to 4 decision in Texas
v. Johnson. This decision struck down a flag protection statute in
Texas, and effectively invalidated similar statutes in 48 States and
the District of Columbia, as well as the Federal statute. In 1990, in
another 5 to 4 decision, the Court struck down a revised Federal
statute.
The Court's decision in Texas v. Johnson was notable for a powerful
dissent authored by Justice Stevens. I would note that Justice Stevens
provides consistently one of the most liberal votes on the Court.
Justice Stevens found that neither the States nor Congress had acted
improperly in passing the statutes in question. He was on the mark in
his dissent when he said:
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.
Justice Stevens is absolutely correct in recognizing that a
prohibition on certain forms of conduct is a power long held by
Congress and the States and in no way infringes on the right of any
individual to express an idea. He went on to say:
Had he chosen to spray-paint--or perhaps convey with a
motion picture projector--his message of dissatisfaction on
the facade of the Lincoln Memorial, there would be no
question about the power of the Government to prohibit his
means of expression. The prohibition would be supported by
the legitimate interest in preserving the quality of an
important national asset.
Then-Chief Justice Rehnquist also questioned the communicative value
in desecrating the flag, saying that such conduct ``is most likely to
be indulged in not to express any particular idea, but to antagonize
others.''
Prior to these rulings, Congress, with the support of a majority of
the American people, had the power to protect our Nation's symbol.
Respect for the flag is not something that falls along ideological
lines or party affiliation; it is shared by Americans from all walks of
life. In these polarized times, the flag remains a unifying symbol.
Last month, as chairman of the Judiciary Subcommittee on the
Constitution, I chaired a markup of this bill. We had an energized
debate, and passed the amendment with a bipartisan 6-to-3 majority.
Two-thirds of the membership of my subcommittee not only supported the
amendment but were, and are, proud cosponsors.
I would like to thank my good friend and ranking member, Senator Russ
Feingold for his cooperation in scheduling a markup. He doesn't support
the amendment, but I know he believes amending the Constitution is a
very serious matter, and I appreciate his cooperation in having a fair
and honest debate. I would also like to thank Senator Feinstein. She is
one of the strongest supporters of this amendment and is also a member
of the Constitution Subcommittee. I commend her for ignoring powerful
special interest groups and diligently fighting for what's right.
We should be very careful in considering amendments to the U.S.
Constitution. It is not something that should ever be taken lightly,
but the Court has left us with few options. It is unfortunate that we
have to consider this amendment, but I do believe that in light of the
Supreme Court's decisions it is the appropriate action.
The amendment has broad bipartisan support here in the Senate, and is
supported by Americans from both ends of the political spectrum. Poll
after poll indicates that the people of this country want their flag
protected. I have been contacted by numerous veterans
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groups from my home State of Kansas, as well as across the country
voicing strong support for this amendment. We ask a lot from our men
and women in uniform. They sacrifice their safety and risk their lives
so that each of us can remain free in this great Republic. Their
defense of the principles and liberties embodied in the red, white, and
blue preserve the freedoms enumerated in the Constitution.
Passing this amendment and sending it to the States allows for the
American people to have their voices heard on this important issue. The
House passed the flag amendment by a two-thirds majority vote last
year, and it is now our turn to do the right thing and give the States
and the people of this great Nation the opportunity to decide whether
to grant protection to our national symbol. If ratified by three-
fourths of the States, then we can debate an appropriate statute
concerning treatment of the flag.
There is a lot of misinformation regarding this amendment that should
be cleared up. If ratified, the text of the Constitution would not
prohibit flag burning. The amendment states:
The Congress shall have power to prohibit the physical
desecration of the flag of the United States.
Even if the amendment passes, the Congress may decide not to prohibit
flag desecration. But we will have corrected a wrong decision by the
Supreme Court.
Article V to the Constitution does not give nine unelected Justices
the right to amend our founding document. This power rests solely in
the democratic process. Restoring this power to the people and their
elected representatives in Congress preserves this process. Protecting
the integrity of our national symbol should not be left to a handful of
unelected judges. Why would any Member of this body vote to limit our
power and expand the power of the Court?
The Founding Fathers wisely devised a process for the people through
their elected representatives--not the courts--to amend the
Constitution. It is our duty as elected Members of Congress to exercise
this constitutionally granted power when necessary and appropriate.
Justice is not served when we remain silent and allow unaccountable
judges to exercise this power for us. If, as Members on both sides the
aisle repeatedly claim, we truly oppose judicial activism, we should
send this amendment to the States for ratification.
I am proud to have cosponsored this amendment in every Congress since
I became a Member, and to have consistently cast my vote in support
each time the bill has made it to the floor. I urge my colleagues to
support this bill, so that the American people can choose whether or
not to bestow protection to their flag. There is no symbol that has the
power to unify us like the flag, which is why a majority of Americans
continue to support this amendment. It is time to restore the
traditional meaning of the first amendment and send the flag
desecration resolution to the States for ratification. I urge my
colleagues to vote for this important amendment.
Mr. President, I thank my colleague from Oklahoma for his great work
on this amendment. This legislation passed the Constitution
Subcommittee 6 to 3. It passed the full Judiciary Committee and is now
ready for this body to vote, and we need to have a positive vote on it.
I flew in to Washington today. There were cloudy skies, but one could
still see the monuments when flying in. The beauty of the monuments
never ceases to strike me. Whether it is the White House, the
Washington Monument, the Lincoln Memorial, National Cathedral, there
are just certain landscape features one looks at.
When you are flying in on the so-called river run that the pilots so
often do, you get to see these monuments, and it is just so striking.
I was preparing for this debate and thinking about the Lincoln
Memorial. What if somebody today, yesterday, or some other time had
taken spray paint and sprayed on the Lincoln Memorial: ``We want
freedom'' or ``Death to tyrants'' or ``Down with the flag''? Let's say
they wrote that in big spray paint on the Lincoln Memorial and defaced
the memorial and then was caught and was brought to trial and claimed:
Wait a minute, I have a first amendment right to say what I want to
say, and I believe it is important that I say it anywhere, and I want
to say it on the Lincoln Memorial. I want to make my message known, and
I am going to spray-paint it all over here; this is free speech, and I
ought to be able to do that and this is the place to do it, and Lincoln
would approve of that; he believed in free speech, so he wouldn't mind
that the memorial was sprayed upon, that it was defaced.
We would all recognize that as being something wrong, violating the
law, and something there should be a law against.
We don't have a problem with a person standing on the Lincoln
Memorial and shouting at the top of his lungs for as long as he wants
whatever he wants to say--if it is about the war in Iraq, if it is
about the President, if it is about somebody in the Senate, if it is
about myself, if it is about the Chair, if it is about anything he
wants. We don't have any problem with that. But if he defaces the
memorial, we do.
It is interesting, that was the dissent Justice Stevens used in the
Texas v. Johnson case. He made that same point. We have no problem with
a person speaking on the Lincoln Memorial. We have a problem with him
defacing the Lincoln Memorial. We have no problem with people speaking
against the flag. We have a problem with them defacing the flag.
Justice Stevens in his dissent--which I think was rightly said--said:
Had he chosen to spray paint or perhaps convey with a
motion picture projector his message of dissatisfaction on
the facade of the Lincoln Memorial, there would be no
question about the power of Government to prohibit this means
of expression. The prohibition will be supported by the
legitimate interests in preserving the quality of an
important national asset.
That is what we are talking about today: preserving the quality of an
important national asset that people follow into battle, that we have
had and honored for years and years, and until recently the court has
held up as saying: Yes, this is something that should be protected and
is protected by the laws of the land, and these laws are appropriate
and are not limitations on free speech.
I think if you follow this court ruling, where does it end? If you
say actions are speech, wouldn't you have a legitimate objective in
defacing the Lincoln Memorial, particularly if it was some form of
political free speech that you wanted to express and put forward?
We have held many hearings on this topic. This is not a complicated
issue. It is about whether we are going to have some authority and
ability to be able to limit and to be able to honor and to uphold
something so precious as our American flag. I think we should do that.
I think because of the people who follow this flag and because we are a
nation of symbols, and symbols are what unite us, and because of the
words and thought that are conveyed by this flag, we should be able to
uphold this mighty national asset. I think it is important that we be
allowed to do that.
I have had a chance to speak on this at length in committee. I have
carried the amendment in our subcommittee. I urge my colleagues to
support this amendment and let the States vote on it. Let the States
decide what they would choose to do.
Mr. THOMAS. Mr. President, I would like to make a few comments on the
bill before us. I have heard a great deal of discussion and, as always,
there should be a lot of discussion, different ideas about it, the idea
of protecting free speech, and none of us disagree with that. I think
the difference here is the fact that the flag represents our right and
our freedom for free speech as well as all of our other freedoms. So I
am proud and honored to be one of the 59 original cosponsors of the
flag protection amendment.
Having served in the Marine Corps, I stood before the flag and
understood that it represented the things that we stand for. It
represented the freedoms we have. It represented the things that we
sacrifice for. I believe it should receive special protection because
that is what it symbolizes to the citizens of the United States.
I understand there are concerns about limiting free speech. This
amendment does not limit speech; it simply gives Congress the authority
to prohibit physical desecration of the
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flag. To me, that is pretty easy to determine. It is something we
should protect. It is something that we have given a great deal to
protect. It is symbolic of the things that mean so much to us.
Since the Supreme Court decision that said desecrating the flag is
protected speech, there has been an overwhelming amount of public
support to protect the flag. All 50 States have passed resolutions
calling for Congress to pass a flag amendment.
I understand that amending the Constitution should not be taken
lightly, but burning or defacing or trampling the flag sends the wrong
message to people who have given so much, including their lives, for
the defense of this country, so certainly that should not be taken
lightly.
Throughout history, in times of war, peace, and uncertainty, our
Nation always turns to the flag as a sign of resolve, as a sign of
commitment, as a sign of strength. After the attacks of September 11,
our Nation unfurled the flag at the Pentagon and raised it from the
rubble at Ground Zero. It is a symbol of national unity and identity.
This symbol needs to be held in the highest regard. Generations of
American soldiers have died under the flag and the ideals it stands
for. The flag is a strong symbol for those who fought in wartime.
The American flag is a national asset. Just as it is unlawful to
desecrate the Washington Monument, the Lincoln Memorial, and the graves
at Arlington, it should be unlawful to desecrate the flag. Aren't there
some things like symbols of freedom that should rise above politics? It
seems to me that they should.
So I urge my colleagues to support this amendment so we can send it
to the States for ratification and ultimately let the people of America
decide.
Mr. President, I yield the floor.
The PRESIDING OFFICER. The Senator from Georgia is recognized.
Mr. ISAKSON. Mr. President, I rise in support of the amendment to
allow the U.S. Congress to protect the American flag.
I was elected 2 years ago, in the most recent election. I ran on a
campaign of three basic promises and commitments to the people of
Georgia: The first was to support the President and our men and women
in harm's way in the war on terror. The second was to work diligently
for strong fiscal accountability on behalf of the Congress. And the
third was to vote in favor of confirming the judges appointed by the
President of the United States to the Federal bench. With those
promises, I made the statement that I really felt as though the
division of powers of our Constitution was sound, and that it was
absolutely important for judges to interpret the law, not to make the
law.
This amendment has been said by some to be a violation of the first
amendment. This amendment has nothing to do with speech or expression.
It has everything to do with protecting our flag and allowing the
Congress to write those laws that would prohibit physical desecration
of our flag.
Unlike some, I do not believe the flag is an inanimate object. I
believe it is a living symbol for which our men and women in harm's way
have fought for over two centuries.
Just a month ago, I went to Normandy. I went to Bellewood. I went to
the Netherlands and Margraten. I went to Belgium and Carthage in
Northern Africa. We did seven ceremonies in 6 days at seven American
cemeteries, cemeteries where tens of thousands of Americans are buried,
having paid the ultimate sacrifice in World War I and World War II.
They died to protect the first amendment. But if those in the graves
could come back and speak, I don't think a one would say they died to
have the flag they fought for desecrated.
The courts have also been inconsistent in this case in my judgment
about the first amendment and expression. The court, in 1989, in Texas
v. Johnson, and in 1990 in the case of the United States v. Eichman,
ruled that burning the flag was protected by the first amendment. I
find it ironic that in 2003, the U.S. Supreme Court ruled in the
Virginia case, Virginia v. Black, that the burning of a cross in
someone's front yard was not expression and, therefore, the Virginia
law banning it was upheld.
I did a little research on that case which led me to find out that
the District of Columbia has that law, the State of Georgia has that
law, and many States in the United States have that law, which says the
terrible act of desecrating a cross and burning it is protected--is
fine for the States to do that. In fact, I read a little bit about
Clarence Thomas's opinion written in that 2003 case, and I want to
share his remarks because it applies directly to my point on protecting
the flag and not allowing its desecration. Justice Thomas said:
This statute prohibits only conduct, not expression. ust as
one cannot burn down someone's house to make a political
point and then seek refuge in the First Amendment, those who
hate cannot terrorize and intimidate to make their point.
I don't think it can be said more succinctly or more clearly.
The amendment that is to be voted on by this Senate, hopefully
sometime today or tomorrow, is an amendment that does nothing to
prohibit the speech of anyone but does everything to protect the flag
from being desecrated. I think those brave men and women who died for
this country would agree with that, I agree with that, and I think the
people of Georgia agree with that. I urge my colleagues to vote in
favor of passage of the amendment.
Mr. President, I yield the floor, and I suggest the absence of a
quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The legislative clerk proceeded to call the roll.
Mr. TALENT. 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. TALENT. Mr. President, how much time do we have left?
The PRESIDING OFFICER. The Senator has 3\1/2\ minutes.
Mr. TALENT. Mr. President, I rise to speak on the proposition before
us and on the importance of protecting the American flag. The American
flag is a unique symbol in the Nation's consciousness. America, unlike
many countries, actually had a birthday. There was a day when the
Colonies became States and the States became a nation and they were
organized explicitly around certain beliefs about human dignity and
freedom: the belief that people have certain inalienable rights that
inhere in them as human beings and that because of those rights the
Government is the servant and not the master of the people. It is also
a nation that cherishes diversity but balances against that, unity. It
is no accident that the national motto is ``out of the many, the one.''
We are not a country with a monarchy. We rebelled against a monarchy.
We are not a country with an established religion. We rebelled against
that as well. We are a country with only a few unifying symbols, chief
among which is the flag. That is why it is so uniquely important to
America's conception of itself to protect the flag. In protecting the
flag, we are affirming the basic beliefs of the country.
I believe that there is in the Constitution a narrow power on the
part of the States and the Congress to protect the flag from public
desecration. In passing this amendment, if the Senate chooses to do it,
we will simply affirm those underlying ideals. We are not saying you
can't criticize those ideals--you can. You can attack them. You can
attack the flag if you want. But there ought to be a power to protect
the flag from public desecration, and I think the amendment comes down
simply to that proposition:
How much do you value the flag as a symbol of what this Nation has
stood for and what the people of this country have sacrificed for and
in some cases have died for?
There are arguments that have been raised on the floor against the
amendment. One of them is that we should not amend the Constitution.
The Supreme Court has amended the Constitution. Until recently, it was
the common understanding that this power existed. There were 48 States
that had laws against the desecration of the flag. The Supreme Court
said they were unconstitutional. In effect, the Court updated or
amended the traditional understanding of the Constitution to say that.
Whatever you think of the Court's power to amend the Constitution or
update it according to the opinions of the Justices, surely the people
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ought to have the power to amend the Constitution.
If the Court can do it, the people ought to be able do it.
That is another basic American ideal--the right of the people to
govern themselves, to decide for themselves what their own organic law
says. If the people are to have their will carried out in this respect,
the only way they have left to do it is by amending the Constitution.
If you say we should not amend the Constitution under these
circumstances, you are saying, in effect, that the courts can change
the Constitution when they think it is important to do it, and the
people have no response. They cannot pass a statute because the Court
would say it is unconstitutional, and they cannot pass a constitutional
amendment because so many in this body say they should never amend
their own Constitution.
Another argument against the amendment is that it regulates
expression. It does not. Burning the flag is an act. It is an act with
expressive overtones, surely, so we should be careful before doing it,
but it is an act, and it is fully within the tradition of the first
amendment to allow the regulation of actions that have speech
overtones. It was only a few years ago that this body passed
comprehensive campaign finance reform that most certainly regulated not
just acts but expressions. According to that legislation, it is
unlawful for grassroots groups to sponsor political advertisement in
the last 60 days of an election that mentions the name of a candidate.
I cannot think of anything more closely related to the core of what the
first amendment was passed to protect, yet the Court said that was
constitutional. If it is permissible to regulate speech in that
context, why is it not permissible to regulate action that has speech
overtones?
Mr. President, I ask unanimous consent for another 2 minutes to
finish my remarks.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. TALENT. Why is it not permissible to regulate something that is
clearly an act that strikes at the heart of the American consciousness
and that leaves unregulated a vast area of expression?
I would daresay, if the average American decided to participate in
the political process and try to get his or her views out, they might
very well join a grassroots group and get involved in a campaign. Yet
it is evidently consistent with the first amendment, according to the
Court, to regulate that, yet not consistent to prohibit a particular
action that has one narrow area of expressive overtones.
We should at least understand what this debate is about. It is about
how much you value the flag. I do not begrudge anybody their views
about expression or the Constitution or the role of this body in
regulating the one or amending the other. But I believe this debate is
about how great a significance you attach to the flag of the United
States. I believe it is important. People have fought under it. They
have died for it. There are literally billions of people around the
world who see the flag as a symbol for all that is good about their
hopes for the future.
I believe it is important that we have this debate. I hope the Senate
will think clearly and deeply and thoughtfully and not on a partisan or
political basis and decide it is consistent with America's traditions
and that it will sustain the balance between diversity and unity for us
to pass this amendment and protect our flag.
I yield the floor.
The PRESIDING OFFICER. The assistant Democratic leader.
Mr. DURBIN. Mr. President, I have listened to this debate today and
yesterday. I have heard the heartfelt sentiments of my colleagues on
both sides of the aisle about this flag. I think everyone following
this debate has the same strong feelings about this flag and what it
symbolizes.
Today, Senator Dan Inouye, my colleague from the State of Hawaii,
spoke. There probably is no one better qualified to come to the Senate
floor and speak to this issue. Senator Dan Inouye, a veteran of World
War II, lost his arm in combat and was decorated with the Congressional
Medal of Honor for the bravery and valor he showed in that conflict. He
went on to serve his Nation again in the U.S. Congress and came to the
floor today to speak from the heart about what that flag means to him.
One would think that a man like Senator Inouye, more than any other who
serves in the Senate, would understand the importance of that flag to
our men and women in uniform and to all of us who, from the moment we
were old enough, learned the Pledge of Allegiance and stood up in front
of our classrooms and said that flag means something special.
Today before us is an opportunity to do something for that flag, and
I believe we should seize that opportunity. But I think what has been
proposed by the other side, the idea of amending our Constitution, is
not necessary.
Stop and reflect for a moment. Since 1791, when James Madison, Thomas
Jefferson, and the Founding Fathers crafted the words of our Bill of
Rights, they have stood as a sacred document in this country. They have
guided us through good times and bad. They have given us our moral
compass as a nation. They have inspired others to follow that wording
so carefully crafted in building their own constitutions and their own
nations. It is, indeed, a sacred document.
Some have come to the Senate floor in the last several days and
suggested it is time to change the Bill of Rights. It is time for the
first time in the history of the United States of America to change the
words crafted by our Founding Fathers.
I have said it before and I will repeat it now, when it comes to
changing this Constitution, I approach that task with great humility. I
like to think I have some skills, perhaps at writing or speaking, but
if you are asking me to write words to put in that Constitution, words
that would change what Madison, Jefferson, and the Founding Fathers
intended to be our basic rights as Americans, I come to that task with
great humility.
But some of my colleagues do not. In fact, over the last 15 years we
have had 1,000 amendments proposed to the Constitution. There was a
time in the Senate Judiciary Committee not long ago when the chairman
scheduled two constitutional amendments to be considered on the same
day. I took exception to that. I objected to one of them and I argued
then, and I still believe, that for all that is holy in America, we
should not amend the Constitution more than once a day.
Today we are facing the second constitutional amendment this month
proposed by the Republican side of the aisle. I think it is
unfortunate. I wish my colleagues approached this with the same sense
of humility which I think most Americans would if facing this
challenge. The obvious question is this: If we love this flag, if we
respect this flag, if it is a symbol for our Nation, how should we show
that respect? We do it in so many ways, from the Pledge of Allegiance
to our national anthem, saluting it as it passes in parade or putting
your hand over your heart. We do it in ways large and small.
But what about those who desecrate that flag? What about those who
engage in hateful conduct toward that flag to protest some action by
the United States or for whatever reason? What should we do with those
people? According to those supporting a constitutional amendment, we
should show our hatred for their conduct by amending the Bill of Rights
for the first time in the history of the United States of America. I
disagree. I disagree. I believe there is a way to protect that flag
without defiling our Constitution. There is a way to show our love of
that symbol of our great Nation, not at the expense of that sacred
document which has guided us from the beginning. What I am proposing at
the end of my statement today is an amendment. It is an amendment that
is being offered on a bipartisan basis. It is an amendment that will
make it unnecessary to amend the Constitution of the United States. It
is an amendment which establishes that it will be a crime to desecrate
that flag. We spell out the circumstances that would make it a crime.
The Supreme Court has not said that you have to amend the
Constitution to protect that flag--just the opposite.
In the United States v. Eichman case in 1990, the Supreme Court
expressly recognized that while citizens have a free speech right to
express their political dissent by burning the flag, the Government may
punish flag-burning under certain circumstances.
[[Page S6521]]
In a unanimous decision in 1992--in R.A.V. v. the City of St. Paul--
the Court explained that although a law prohibiting individuals from
dishonoring the flag is not content neutral, the Government may punish
flag-burning in a content neutral manner.
Stripping away the constitutional language, what the Court has said
is this Congress has within its power to write a criminal statute that
would punish someone who desecrates that flag. This amendment that I
offer will do that expressly. It would prohibit a person from
destroying a flag with the intent of inciting imminent violence. It
would prohibit people from threatening someone by burning a flag. It
would prohibit damaging a flag owned by the United States. And it would
prohibit damaging a stolen flag on Federal land.
Each of those elements in this amendment has been carefully thought
out and tested against constitutional standards that have been handed
down by the Court.
You may recall, if you follow the Supreme Court decisions, that not
long ago there was a historic decision in Virginia v. Black. The year
was 2003. The Court in that decision held that the Government may
prohibit people from burning crosses with the intent to intimidate.
You know what the symbol of burning a cross is. It is a symbol of
hatred and bigotry and prejudice. It is especially a hateful symbol to
African Americans who recall our bitter past of slavery, before the
dawn of the civil rights movement. And the Supreme Court made it clear.
It said, the Government may prohibit intimidation by the use of burning
crosses.
We use the same logic and the same argument of the Court and apply it
to the flag.
For those who have come to the floor--and many have--and said how
much they respect the flag, we offer them a reasonable alternative: an
alternative that protects the flag without infringing our Bill of
Rights.
I think that is the way we should move. We have learned long ago that
when it comes to amending the Constitution, it shouldn't be the first
thing we do. It should be the last resort. That sacred document
deserves to be honored and only changed when absolutely necessary for
America.
There is a criminal statute that I am going to propose as an
alternative way to protect that flag, to show respect for that flag,
and to still show respect for our Bill of Rights.
Let me tell you about another issue which we address in this
amendment. You have read about it. If you read it, as I have recently,
it makes you sick. What I am referring to is a group nominally calling
themselves Christians that is now picketing and protesting at the
funerals of our fallen soldiers. There is a man by the name of Phelps.
He calls himself a minister. But his gospel seems to begin and end with
hatred--hatred for gays and lesbians, and obviously hatred and
insensitivity for the poor families of our fallen veterans.
About 15 years ago, this man Phelps and his so-called church
followers started showing up at the funerals of men and women who died
of HIV/AIDS. They have reportedly picketed over 22,000 funerals and
other events across America. When their vile acts of incivility stopped
generating the publicity they sought, Mr. Phelps found a new target.
I am reluctant to show these photos because I don't want to encourage
this man. But I have to tell you that it puts in context what we are
talking about today. Imagine if you had someone who calls themselves
God-fearing and goes to the funeral of fallen soldiers with signs like
these, ``Thank God for 9/11'' and ``You are going to hell.''
Here is another one of those followers holding a sign at a veteran's
funeral, ``God hates you.'' Here he is. ``AIDS is God's curse.''
I received a letter recently from the wife of one of our fallen
heroes in Iraq. Mr. Phelps and his group showed up at her husband's
funeral.
Can you imagine the heartbreak that family must have felt, losing a
father, a husband, a brother, coming for that sad moment of parting and
then to have these protesters standing around saying that God hates
you.
In the past year, these hate-mongers have protested at more than 100
military funerals in America. They claim that the deaths of America's
Armed Forces are God's punishment for America's tolerance for those
with different sexual orientation. This is such an affront to the
families, to everyone in uniform, and to our Nation.
I think there will be a special place in the next life for these
people, but there is no place for their brand of hatred at veterans'
funerals in this life.
Last month, we passed a bill which the President signed into law that
made it clear that Mr. Phelps and his faithful followers could not
engage in this sort of demonstration at our 121 national cemeteries.
The amendment which I will be offering includes a section which not
only protects our flag by making it a crime to defile or desecrate
under the circumstances I mentioned, it goes further. It expands the
bill that we passed earlier. It applies the same standards as would
apply to national cemeteries to the funerals of all veterans, whether
they are buried in a national cemetery or in their own church cemetery
or somewhere else.
My amendment will prohibit protests at cemeteries, funeral homes,
houses of worship and other locations where deceased veterans are
honored and buried.
We can honor our veterans and protect our loved ones from these
hateful, barbaric intrusions on the grief of their families. We can do
this without weakening or assaulting our Constitution. We can do this
without diminishing the basic freedoms we revere in our Nation--
freedoms that those veterans fought for.
I ask my colleagues to stop, pause, and think for a moment. If we can
achieve this, if we can truly protect this flag and if we can protect
the veterans and their families from these hateful demonstrations
without amendment to our Constitution, let's do that. Let's join
together on a bipartisan basis.
We often disagree in this Chamber. Debates go on and on. Can't we
come together in agreement on this that we love this flag and can
protect it without amending our Constitution, that we respect our
veterans, soldiers and their families, and that now we include this
provision as well to protect them?
The amendment I offer is very narrow. It doesn't ban all protest
activities. It permits protests outside military funerals as long as
protesters don't engage in loud activities. But it draws strict
guidelines so that you can't disrupt that funeral home by putting
demonstrators and pickets within certain distances consistent with our
constitutional rights.
I hope that those who will consider this amendment will go back to
the point I made earlier. We can stand for this flag and we can stand
for our veterans. But first we must stand for our Constitution. We
should address this Constitution with humility and with the
understanding that the words that have inspired our Nation and people
around the world for more than 200 years are words worth protecting.
And that before we come to this floor for whatever motive to change
those words, if we can find an alternative to create Federal crimes for
the activities that we find so objectionable, so abhorrent, it is a
much more reasonable path to follow.
I yield the floor.
The PRESIDING OFFICER. The Senator from Utah.
Mr. BENNETT. Mr. President, I thank my friend from Illinois for the
amendment he has offered. It is my understanding that it is the same
wording of the amendment to the bill which I offered and which is
pending before the Judiciary Committee, cosponsored with Senator
Clinton and others but that he has added a section to it which I find
very worthwhile. I thank him for his thoughtfulness and for the section
that he has added with respect to funerals and cemeteries, and for his
diligence in bringing forward that piece of legislation which I had
offered and which has been bogged down in the Judiciary Committee for
whatever reason. I am grateful to him for his consideration.
I ask unanimous consent that I be added as a cosponsor to his
amendment.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. BENNETT. Mr. President, while I have the floor, I would like to
make
[[Page S6522]]
this comment about the debate that is before us.
I have great personal conflicts on this issue because my senior
colleague from Utah, Senator Hatch, is the cosponsor and the principal
sponsor of the constitutional amendment which would empower the
Congress to have the right to take legislative action to protect the
flag.
The PRESIDING OFFICER. Time is currently under the control of the
minority.
Mr. KERRY. Mr. President, I ask unanimous consent that whatever time
he uses be charged to the majority and I reserve our time
appropriately.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. BENNETT. I thank my friend from Massachusetts. I wasn't aware of
the time situation.
I have enormous respect for Senator Hatch--not only for his legal
ability but perhaps more so for his sincerity and his commitment to
this cause.
This is not something he is doing for any cheap political purpose.
This is not something he is doing to grandstand. This is something that
he is doing because he sincerely believes it. He is sincerely committed
to the idea that protecting the flag is an essential thing for us to
do, not only to honor our veterans but to teach our children the
importance of the flag in the future.
I respect that, and I am with him. But I cannot quite bring myself to
amend the Constitution in the manner that he suggests for those
purposes. I want to make it very clear that I do not under any
circumstances denigrate those purposes. I believe that the legislation
I offered--which, as I indicated, is still before the Judiciary
Committee--would take care of the challenges of protecting our flag. He
disagrees. He insists that my legislation would be unconstitutional
based on past precedent.
Checking with legal authorities, I am assured that it is
constitutional. That is not the point. The Senate will work its will
one way or the other with respect to this.
I simply want to make it clear that although I have come to the
conclusion that a constitutional amendment under the present
circumstances is not necessary, this does not mean that I surrender one
whit of my respect for and loyalty to my senior colleague. The Senate
will make its decision. I will be happy with whatever that decision
might be.
I once again extend my support and respect for my senior colleague
even as I announce my intention to vote in a different path.
The PRESIDING OFFICER. Five minutes remain on the minority side.
Mr. KERRY. Only 5 minutes of the total?
The PRESIDING OFFICER. That is correct.
Mr. KERRY. Is that on the half hour?
The PRESIDING OFFICER. Yes.
Mr. KERRY. Mr. President, would it be possible, because we got pushed
back a little bit, that I could have 10 or 15 minutes on my time and
then slide it back the other way?
Mr. President, I ask unanimous consent that I be permitted to proceed
for 10 minutes.
The PRESIDING OFFICER. Is there objection? Without objection, it is
so ordered.
Mr. KERRY. Mr. President, I thank the Chair and I thank my colleague.
Mr. President, let me begin by saying that all through the years we
have been here before. We have had this vote before a number of times.
And each time, thank God, the Senate in its wisdom has protected the
Constitution of the United States.
I must say that I have concern at a time when real leaders ought to
be uniting the country around our biggest challenges, in a summer when
American soldiers are in harm's way in Iraq, Afghanistan, and elsewhere
in the world, while families at home are struggling with record gas
prices, with health care costs soaring, jobs being shipped overseas and
veterans who are defending our country and flag are still going without
the health care they were promised, it is astonishing that we are here
having this debate.
This debate, like wars themselves, can pit father against father,
family against family, veteran against veteran. It is a complicated
debate emotionally, and I understand that. I am not doubting at all the
emotional feeling which is real for every American about our flag. We
all understand that.
I remember taking an oath in 1965 with a group of friends of mine who
decided--all of us--that we ought to serve our country. We went into
different branches of the service with a common sense of what our
obligation was. But when I raised my hand, I did not raise my hand to
defend the flag; I raised my hand and took an oath to defend the
Constitution and our country.
A lot of those friends did not come home. They were buried in coffins
that bore that flag until the moment of their burial, and then that
flag was given to a family member. That flag was a symbol of their
sacrifice, a symbol of their gift, a symbol of our country itself and
all that it stands for, but it was not our country itself. I think each
of us still feels bound by those oaths.
I took almost the same oath when I came here to the Senate. The
obligation is the same: to defend what the Framers of the Constitution
intended and never to give in to the passions of the moment, to the
momentary urge to try to respond to something emotional that, no matter
how much the emotion is genuine, and it is, takes away from the larger
principle and larger set of values that guide our country.
I think it would be a grave mistake if we broke those oaths in the
Senate today. We need to listen to the voices of patriotism which urge
us to do our real duty. Our former colleague, one of the best and
bravest men I know, Senator John Glenn, said:
[T]hose 10 amendments we call the Bill of Rights have never
been changed or altered by one iota, not by one word, not a
single time in all of American history. There was not a
single change during any of our foreign wars, and not during
recessions or depressions or panics. Not a single change when
we were going through times of great emotion and anger like
the Vietnam era, when flag after flag was burned or
desecrated. There is only one way to weaken our nation.
Senator Glenn said:
The way to weaken our nation would be to erode the freedom
that we all share.
Gary May, who lost both his legs above the knee after a landmine
explosion in Vietnam--a veteran who was awarded the Bronze Star with
combat ``V'' and the Purple Heart--spoke for all of us when he said:
[A]s offensive and painful as flag burning is to me, I
still believe that those dissenting voices need to be heard.
. . . The freedom of expression, even when it hurts, is the
truest test of our dedication to the belief that we have that
right.
This is not a test of who loves the flag; this is a test of who has
the courage to protect the Constitution.
Mr. President, as I said, I think every single American feels the
same emotions when they see the flag. I have seen it in so many
different kinds of circumstances where I have been moved and touched by
what it does symbolize to us. But our flag is, in the end, not the Bill
of Rights. It does not carry in it the freedoms that are expressed in
the Bill of Rights. It symbolizes those freedoms. The fact is, who we
are is embodied, above all, in a document that has not been changed
since the beginning. A desecrated flag is replaceable. Desecrated
rights are lost forever.
What makes the United States different, I think in many ways stronger
than any other nation, is our ability to be able to tolerate opinions
we do not agree with, to tolerate diversity, to tolerate the aspiration
for a people to be able to express themselves even when we disagree.
That is what is different about the United States. Thanks to our
Constitution, we are the leading proponent on the face of the planet
for the greatest experiment in freedom set forth in words and in
practice.
At the end of our national anthem we sing, with hand over chest, to
the flag: ``land of the free and home of the brave.'' If this amendment
passes, make no mistake about it, we will be a little less free and we
will be a little less brave.
Ivan Warner, an American soldier who was imprisoned by the North
Vietnamese from 1967 to 1973, wrote:
I remember one interrogation where I was shown a photograph
of some Americans protesting the war by burning a flag.
``There,'' the officer said. ``People in your country protest
against your cause. That proves you are wrong.''
And this prisoner of war, not knowing if he would ever be returned to
America or whether he would be tortured for what he said, said:
``No. That proves that I am right. In my country we are not
afraid of freedom, even if
[[Page S6523]]
it means that people disagree with us.'' The officer [who was
interrogating him] was on his feet in an instant, his face
purple with rage. He smashed his fist into the table and
screamed at [Ivan] to shut up.
And Ivan said:
While he was ranting I was astonished to see pain,
compounded by fear, in his eyes. I have never forgotten that
look, nor have I forgotten the satisfaction I felt at using
his tool, the picture of the burning flag, against him.
In the words of Ivan Warner:
We don't need to amend the Constitution in order to punish
those who burn our flag. They burn the flag because they hate
America and they are afraid of freedom. What better way to
hurt them than with the subversive idea of freedom? Spread
freedom. . . . Don't be afraid of freedom.
In the final analysis, there are eight other powerful reasons for why
we should not do this. They are Iran, Libya, North Korea, China, Cuba,
Syria, and the Sudan. And of the many nations--there are about 30-plus
of them--that have laws about not burning the flag--even a few of our
friends--none of them have a constitution that prohibits it. I do not
think the United States of America ought to join those countries,
including Iraq under Saddam Hussein, the South Africa of apartheid, and
Nazi Germany.
So I ask my fellow Senators, are we really that frightened of
somebody's willingness to go out and be stupid? In the United States of
America, you have a right to be stupid. You have a right to go out and
do something that every one of us thinks is dishonorable or
unacceptable. And communities can punish those people in any number of
ways. I have voted previously for a statute in the U.S. Senate because
I believe a statute is enforceable and does less violence to the
Constitution. And there are plenty of ways for prosecutors--on
disturbance of the peace or destruction of personal property or any
other numbers of ways--to prosecute people. But, in the end, a
community of Americans, whose love of flag is so great, is going to
ostracize anybody who engages in that kind of behavior. Communities
have the ability to make sure they do not get jobs, to make sure they
are persona non grata within the community.
It is unbelievable to me, with only two flags we know of being burned
in this last year--something like eight or so in the last 365 days in
America--that this prompts Senators to feel they have to change the
Constitution for the first time and the first amendment for the first
time. I think it is wrong. I think our country is bigger than that, and
I hope our colleagues in this institution will be today.
Mr. DAYTON. Mr. President, ever since I began my campaign for the
U.S. Senate over 6 years ago, I have consistently promised to support
the proposed constitutional amendment to prohibit the desecration of
the American Flag. Indeed, I am a cosponsor of that constitutional
amendment, which will soon be voted upon by the Senate.
I value and respect the first amendment's protection of free speech,
and I have personally experienced its importance. When I opposed the
Vietnam War in the 1960s and '70s, the first amendment permitted my
lawful dissent, although it did not prevent President Richard Nixon's
Justice Department from tear-gassing our demonstrations or from
unlawfully spying upon me. A generation and another war later, the
first amendment again protected my right to speak out against President
Bush's policies without intimidation or incarceration, and, this time,
without being tear-gassed. I would never infringe upon those precious
freedoms of expression and dissent.
The question before us today is not whether we honor the first
amendment, which we do, but, rather, whether an act as vile as burning
the American flag should be considered ``free speech'' or is it an act
of such wanton violence and outrageous disrespect that it should be
``out of bounds''? I come to the second conclusion.
Our Nation's Pledge of Allegiance was first published almost 114
years ago and was established by Congress in 1923. It states, ``I
pledge allegiance to the flag of the United States of America, and to
the Republic for which it stands, one nation under God, indivisible,
with liberty and justice for all.''
I note, parenthetically, that the U.S. Supreme Court ruled in 1943
that under the first amendment no one can be compelled to recite the
Pledge of Allegiance. Nevertheless, it is one of our most revered
statements of citizenship. It does not pledge allegiance to a
Democratic or a Republican administration. It does not pledge
allegiance to any ideology, policy, or platform.
It pledges allegiance to the flag of the United States of America--
and to the Republic for which it stands, one nation, under God,
indivisible, with liberty and justice for all. In other words,
allegiance to something above any one of us. To something that unites
us as one people indivisible, with liberty and justice for all.
Those are our Nation's founding principles. They are our eternal
ideals. We can disagree; we can dissent; we can lawfully protest; we
can say almost anything we want and do most of what we want, because
those are our rights. They are precious, inviolable rights.
But we also have responsibilities. This great country cannot succeed,
if we concern ourselves with nothing more than our rights as
individuals. We must equally consider our responsibilities as citizens.
This Constitutional amendment says that one of those responsibilities
of citizenship is to not burn or otherwise desecrate our American flag.
I am astounded that the U.S. Supreme Court could construe that as free
speech, but it has. This amendment would simply permit Congress to
declare otherwise and to place that senseless act of desecration
outside the boundary of freedom of speech, just as the Supreme Court
recently ruled burning a cross outside that boundary of protected free
speech.
I am willing to take this carefully considered action, because of
what I know the American flag means to millions of American citizens.
Many of them are relatives or friends of heroic Americans who have
given their lives to defend our country. In my view, those great
American heroes have consecrated our flag with their precious blood.
Honoring our flag honors their extraordinary sacrifices, as it honors
the principles and ideals for which they died.
That is why I will vote for this constitutional amendment.
Mr. OBAMA. Mr. President, I rise today to speak in opposition to the
proposed constitutional amendment.
There have been so many moments in our history where the flag was not
just a piece of cloth. It was a focal point that united this country
through both our most difficult days and our proudest moments. This is
the flag that inspired Francis Scott Key in Baltimore Harbor during the
War of 1812. It is the flag that Illinois soldiers rallied to during
the Battle of Gettysburg. It is the flag that marines raised over Mount
Suribachi on Iwo Jima during a battle that claimed 6,800 American
lives. It is the flag that Neil Armstrong and Buzz Aldrin planted on
the surface of the moon. It is the flag that was draped over the
charred Pentagon following the September 11 attack. It is the flag that
rests atop the caskets of the men and women who give the ultimate
sacrifice in Iraq and Afghanistan.
I cannot imagine anything more abhorrent to a veteran than seeing the
flag they fought for, or watched their good friends die for, being
burned to make a political point. Although I have not served in the
military, I too have great pride in our flag, as do the overwhelming
majority of Americans. I share outrage at the thought of its being
disrespected. I have never seen anyone burn a flag. And if I did, it
would take every ounce of restraint I had not to haul off and hit them.
But we live in a country of laws. Laws that stop people from
resorting to physical violence to settle disagreements. Laws that
protect free speech. The primacy of the law is one of the things that
protects us, one of the things that makes us great.
When I took this job last year I was asked to swear an oath of
office. It is a short, simple oath, and everyone in this Chamber has
repeated it. It begins: ``I do solemnly swear that I will support and
defend the Constitution of the United States against all enemies,
foreign and domestic; that I will bear true faith and allegiance to the
same.'' Our first allegiance here is not to a political party, or to an
ideology, or to a President, or even popular opinion, it is to the
Constitution and to the rule of law.
[[Page S6524]]
Senator Byrd often talks about the Constitution as a remarkable
document that transformed a revolutionary movement to a stable
government that has lasted more than 200 years and is the envy of the
world. He is right.
The Constitution has only been amended 27 times. The amendments
include guarantees of our most basic freedoms, the freedom of religion,
the right to a trial by jury, the protection against cruel punishment.
The amendments also chronicle the great struggles of this country. The
13th amendment abolished slavery in 1865. The 17th provided for the
direct election of senators in 1913. The 19th amendment gave women the
right to vote in 1920. The 24th eliminated the poll tax in 1964.
The Framers established a high bar for amending the Constitution, and
for good reason. It is difficult to amend the Constitution because our
founding document should not be changed just because of political
concerns or temporary problems. The Constitution should only be amended
to address our Nation's most pressing problems that can't be solved
with legislation. But even the supporters of this amendment are hard
pressed to find more than a few instances of flag burning each year.
Today, there are hundreds of thousands of U.S. troops risking their
lives for their country, looking to us to come up with a plan to win
the peace so they can come home. Across America, there are millions who
are looking for us to do something about health care, about education,
about energy. We are only supposed to be in session for about 50 more
days for the rest of this year. To spend the precious time we have left
battling an epidemic of flag burning that does not exist is a
disservice to our country.
Mr. President, 141 years ago, Congress passed--and the States
approved--the 13th amendment to end slavery. A century and a half
later, Americans can look back at that effort and be proud. What will
Americans 141 years from now think if we pass the 28th amendment to ban
flag burning? Will they breathe a sigh of relief that we made the world
safe from flag burners? Or will they see this for what it is: an effort
to distract, an effort to score political points, an effort to use the
same flag that should unite us to instead divide us? I believe they
will laugh and shake their heads.
During this debate, we have heard much about Colin Powell's
opposition to this amendment. I am moved by his statement that:
I would not amend that great shield of democracy to hammer
a few miscreants. The flag will still be flying proudly long
after they have slunk away.
His view is shared by the many calls and letters I have received from
Illinois veterans. All of them full of honest passion, and all of them
sharing a common love of flag and country. I want to read a bit from a
few of the letters I received.
Richard Savage of Bloomington wrote me:
I am a Vietnam veteran and Republican. . . . Those who
would burn the flag destroy the symbol of freedom, but
amending the Constitution would destroy part of freedom
itself.
Marci Daniels from Edwardsville wrote:
I am a veteran and I oppose the flag amendment. I did not
put my life on the line for the flag, but for the
Constitution and the freedoms it guarantees.
Terrence Hutton of Winnetka wrote:
As a Vietnam war veteran, I did not like the steady fare of
flag-burnings we seemed to see on TV and in the print media
back in those unhappy days, but I accepted them as part of
the price we pay as a free society. . . . We have survived
this long without a flag-burning provision in the
Constitution and can go right on surviving without one.
These are all proud Americans, veterans. They know that we should not
play politics with the Constitution. We shouldn't distract voters in an
election year, when there are so many common challenges we face and so
little time to face them.
There is, in fact, another way. There is a way to balance our respect
for the flag with reverence for the Constitution. Senators Clinton and
Bennett are proposing an amendment to this proposal that would protect
the flag without amending the Constitution. Their statutory approach is
a new one that doesn't fall into the same constitutional traps that
doomed previous flag protection bills. The Clinton-Bennett amendment is
narrowly drawn to meet the first amendment tests the Supreme Court has
laid out in previous court decisions. It makes it illegal to burn a
flag in a threatening way or to incite violence. I believe this statute
will pass constitutional muster and be upheld by the Supreme Court.
I will vote for the Clinton-Bennett amendment in an effort to find a
way to balance our respect for the flag and our protection of the
Constitution. I urge my colleagues to do the same.
Mr. NELSON of Florida. Mr. President, I intend to vote in favor of
this resolution.
The flag is a sacred symbol to this country and its citizens. Men and
women have given their lives to protect the ideals embodied in the
flag, and it's a unifying representation of America and all that we
value. I believe it is a symbol worthy of protection.
This resolution will give Congress the ability to consider
legislation that will protect the flag and prevent its desecration.
Mr. CONRAD. Mr. President, today I will support the Durbin amendment
to pass a statute to protect the flag and address the very real problem
of protests at military funerals.
I was recently at a funeral for a North Dakota soldier, and I was
disgusted--absolutely disgusted--by the behavior of protesters who used
the funeral to convey their twisted message of hatred for our soldiers
and their families. The Durbin amendment would restrict these protests
from the immediate area of the funeral, and it would protect the flag
without amending the Constitution of the United States for that
purpose.
Anybody who advances an amendment to the Constitution has to clear a
very high threshold. The Constitution of the United States is one of
the greatest documents in human history. It is not to be amended
lightly. And it should certainly not be amended when there are other
ways of addressing a problem.
In our history, more than 10,000 amendments to the Constitution have
been proposed. Only 27 have been approved. Since I have been in the
Senate, more than 850 constitutional amendments have been offered.
Thank goodness we have not adopted them. Many of them would have made
that document worse. Many of them would have done things that ought to
be done by statute.
The Constitution is a framework. It does not deal with specifics. It
deals with the larger framework of how this Government should operate.
Individual laws, individual statutes are meant to deal with the
specific problems that we encounter as a society within the framework
provided by the Constitution. Some would have us change that basic
organic document to deal with this problem. I believe that would be a
mistake that we would come to regret.
Flag burning and flag desecration are unacceptable to me and
unacceptable to a majority of Americans. They are certainly
unacceptable to the people of the State that I represent. But the first
answer cannot and should not be to amend the Constitution of the United
States.
Of course, it is unacceptable to engage in flag desecration. Of
course, it is abhorrent to desecrate the flag. We do not need to amend
the Constitution to address these few instances of deplorable conduct.
We have an alternative. The alternative is to pass a statute.
The proponents of the constitutional amendment will say that the
statutory alternative will be ruled unconstitutional, as has the
previous attempt to pass a statute.
But this statute has not been ruled unconstitutional, and a range of
constitutional experts believe it would pass constitutional muster.
They are saying to us this statute would be upheld. It is my view that
we ought to see if they are right before we conclude that the only
alternative is to amend our Constitution. We ought to give the Supreme
Court a chance to look at this statute, and see if we can find a way to
protect the flag by statute before we amend the Constitution.
I am not alone in taking this position. I have heard from
distinguished veterans all across my state and all across the country
who agree that the Constitution does not need to be amended to protect
the flag.
For example, Rick Olek, a 22-year member of the American Legion, a
[[Page S6525]]
combat veteran, and a Purple Heart recipient, has written:
As a combat veteran, I fought for this country and I
respect our flag, but I also respect the rights of freedom of
speech. The position of Senators Conrad and Dorgan on the
flag amendment is consistent with protecting first amendment
rights as well as protecting our flag.
Similarly, Mike Dobmeier, former National Commander of the Disabled
American Veterans, says:
I fought--and many of my comrades died--to protect the
freedom and ideals the U.S flag embodies. Senator Conrad
understands our sacrifice and he is working tirelessly to
protect Old Glory. Last year he introduced bipartisan
legislation that would criminalize the desecration of our
flag, rather than changing the Constitution. Senator Conrad
knows that we can protect our flag without infringing on the
precious freedom it represents.
And Brad Maasjo, a retired Air Force Colonel from Fargo, ND, writes:
There is a poem that says in part that `. . . it is the
soldier, who fights for the flag . . . whose coffin is draped
by the flag . . . who wins the right to protest the flag. . .
.'' Maybe if we take away that right, we also lose sight of
what he fought for in the first place.
These are just a few of the people I have heard from, proud North
Dakota veterans who support the flag but also revere our Constitution.
They tell me that they abhor flag desecration, but that the flag is a
symbol for the liberties and freedoms they fought to protect. They do
not want to rush to amend the Constitution when there are other options
available.
Finally, GEN Colin Powell, Secretary of State Powell, has written the
Congress to say he does not believe that the appropriate response is to
amend the Constitution of the United States. GEN Colin Powell, former
Chairman of the Joint Chiefs of Staff, the man who led us in Desert
Storm, a man for whom I have profound respect says:
I understand how strongly so many of my fellow veterans and
citizens feel about the flag and I understand the powerful
sentiment in state legislatures for such an amendment. I feel
the same sense of outrage. But I step back from amending the
Constitution to relieve that outrage. . . . I would not amend
that great shield of democracy to hammer a few miscreants.
The flag will be flying proudly long after they have slunk
away.
I urge my colleagues to step back from the constitutional amendment
and instead support the Durbin amendment. This is the wiser course. It
is the right course. It is one that will stand the test of time.
Mr. AKAKA. Mr. President, I rise today in opposition to S.J. Res. 12,
the flag desecration constitutional amendment.
I believe our flag is a living symbol that represents this great
country and its rich history. As a World War II veteran, I feel a deep
connection to our flag, and it offends me when I see the flag burned or
treated poorly. Our flag deserves our reverence and respect.
As a U.S. Senator, I have sworn to protect the Constitution and the
freedoms for which it stands. I believe it would be wrong to amend the
Constitution to infringe upon our first amendment freedoms. Although I
find it personally detestable that someone would desecrate the flag, it
is my duty to protect the right to free speech and expression. To me,
this amendment would protect our Nation's preeminent symbol at the cost
of sacrificing the very freedoms that it is supposed to represent.
This amendment is all the more troublesome because it is wholly
unnecessary. Americans are not lacking in patriotism nor is there an
epidemic of flag burning. To the contrary, in these five years since
the tragic events of September 11, 2001, Americans have vigorously
rallied around our flag and the liberties it represents.
For these reasons, Mr. President, I will be opposing S.J. Res. 12,
and I urge my colleagues to do the same.
Mr. LEVIN. Mr. President, the American flag is a cherished symbol of
our freedom and the democratic values and liberties that we believe in,
and we should respect the flag as a reminder of the bravery of the men
and women who have lost their lives fighting under its colors for our
country. One of the most poignant images to a patriotic American is
when that flag is draped over the coffin of a fallen soldier.
I detest flag burning. To deliberately desecrate the flag is an
insult to anyone who has fought to defend it and to all of us who love
it. Any person who destroys such an important reminder of sacrifice and
patriotism deserves the scorn of all decent men and women.
Although I love the flag, I also love the Constitution and its Bill
of Rights. For more than 210 years, this timeless document has
protected our most basic freedoms. The Supreme Court has ruled that a
physical attack on the flag is a protected form of speech under the
first amendment.
In 1984, Gregory Johnson publicly burned an American flag as a means
of political protest and was convicted of desecrating a flag in
violation of Texas law. In Texas v. Johnson, the Supreme Court held
that, although ``the government has a legitimate interest in making
efforts to `preserv[e] the national flag as an unalloyed symbol of our
country,' '' Johnson's burning of the flag was constitutionally
protected speech.
In response to that decision, Congress passed the Flag Protection
Act, a Federal law to prohibit flag-burning and other forms of
desecration. I supported that legislation, but the Supreme Court found
it unconstitutional in United States v. Eichman. The Court found that
the statute suppressed constitutionally protected expression, and held:
The Government's interest in protecting the ``physical
integrity'' of a privately owned flag rests upon a perceived
need to preserve the flag's status as a symbol of our Nation
and certain national ideals. But the mere destruction or
disfigurement of a particular physical manifestation of the
symbol, without more, does not diminish or otherwise affect
the symbol itself in any way. . . . While flag desecration--
like virulent ethnic and religious epithets, vulgar
repudiations of the draft, and scurrilous caricatures--is
deeply offensive to many, the Government may not prohibit the
expression of an idea simply because society finds the idea
itself offensive or disagreeable.
Now that the Court has decided that flag burning as a means of
expression is constitutionally protected, the question for the Senate
is whether to amend the Constitution to ban such speech. Our
Constitution has been amended only 17 times since the adoption of the
Bill of Rights in 1789. The Bill of Rights has never been amended. I
believe that to deliberately weaken the first amendment rights of all
Americans is not the answer to those very few who attack a symbol of
freedom.
Senator John Glenn, an American hero who fought for our country
through two wars and took our flag into space, eloquently expressed
this view before the Judiciary Committee:
[I]t would be a hollow victory indeed if we preserved the
symbol of our freedoms by chipping away at those fundamental
freedoms themselves. Let the flag fully represent all the
freedoms spelled out in the Bill of Rights, not a partial,
watered-down version that alters its protections.
The flag is the nation's most powerful and emotional
symbol. It is our most sacred symbol. And it is our most
revered symbol. But it is a symbol. It symbolizes the
freedoms we have in this country, but it is not the freedoms
themselves.
Steve Sanderson, a Michigan Vietnam-era veteran, expressed a similar
view as quoted in the Detroit Free Press on June 14, 2006. He said:
Veterans certainly cherish the flag, perhaps more than
civilians who have never been to war can realize. But
commitment is not confined to that symbol. I am hurt when I
see the flag burned, largely because I've also seen the flag
draped on coffins of troops. But my patriotism lives in my
heart and mind. We set a very dangerous precedent if we argue
that certain forms of speech should be restricted because the
majority disagrees with the message and how it is expressed.
Mr. President, I love our flag. I love our Constitution. Flag
desecration is repugnant, but it would be a mistake to let a flag
burner cause us to weaken our first amendment guarantees. If we take
this fateful step of singling out one symbol to exempt from the first
amendment, will we next authorize Congress to make it a crime to rip up
a copy of the Constitution or a copy of its Bill of Rights?
The American flag symbolizes our freedom, and that includes freedom
from an overreaching government that decides which symbols are worthy
of protection. We are honoring our flag and the republic for which it
stands by refusing to amend the Bill of Rights in response to a few
misguided people.
I do support the statute that will be offered as a substitute for the
constitutional amendment, which provides that: ``Any person who shall
intentionally threaten or intimidate any
[[Page S6526]]
person or group of persons by burning, or causing to be burned, a flag
of the United States shall be fined not more than $100,000, imprisoned
for not more than 1 year or both.'' The Supreme Court has held that the
first amendment does not provide full protection for what are called
``fighting words.'' or those words which, by their very utterance,
inflict injury or tend to incite an immediate breach of the peace.
Also, in Virginia v. Black, a case that involved the burning of a
cross, the Supreme Court held that the government can prohibit people
from burning crosses with the intent to intimidate. In that case,
Virginia law prohibited cross burning through a statute that made it
unlawful for any person to burn a cross with the intent of intimidating
any person or group of persons. A majority of the Court held that it
believed the substantive prohibition on cross-burning with an intent to
intimate was constitutionally permissible. Writing for the majority,
Justice O'Connor said:
The protections afforded by the First Amendment, however,
are not absolute, and we have long recognized that the
government may regulate certain categories of expression
consistent with the Constitution . . . Thus, for example, a
State may punish those words ``which by their very utterance
inflict injury or tend to incite an immediate breach of the
peace. . . . We have consequently held that fighting words
``those personally abusive epithets which, when addressed to
the ordinary citizen, are, as a matter of common knowledge,
inherently likely to provide violent reaction'' are generally
proscribable under the First Amendment.''
The substitute also contains an important provision to support our
military families in their time of grief. During the past year, a
fringe religious group has held protests at more than 100 military
funerals across the Nation, claiming that the deaths of U.S. soldiers
is God's punishment of America. In May, Congress passed and the
President signed into law the Respect for America's Fallen Heroes Act,
which prohibits demonstrations at and around national cemeteries. This
amendment would expand that Act to include military funerals at private
cemeteries, funeral homes, and houses of worship. The families of the
fallen have a right to be free to bury their loved ones and our heroes
in peace.
I support this narrowly drawn substitute because it both protects the
flag, consistent with the Bill of Rights, as well as honors those who
have made the ultimate sacrifice while fighting under its colors.
Ms. MIKULSKI. Mr. President, I rise to support the substitute offered
by Senator Durbin to ban the desecration of our flag. The Durbin
alternative stands for the same things I do. It protects the principles
embodied in our Constitution--as well as our U.S. flag. It does not
amend the Constitution, but it will get the job done by punishing those
people who help wage war against the symbol of this country and
everything it stands for.
I know that we have gone down this road before, by passing statutory
language to ban flag-burning only to have the Supreme Court overturn
it. But this language has been specifically crafted so that it will
pass constitutional challenge.
It says you cannot get away with abusing the flag of the United
States or using it to incite violence. This is an exception the Supreme
Court has allowed. The Durbin substitute says you can't use this
Nation's symbol of freedom and turn it into a symbol of disrespect.
If there is a way to deal with and punish those who desecrate our
U.S. flag without amending the Constitution, I am all for it. That is
why I support the Durbin Substitute.
I feel very strongly about this issue. I have voted for legislation
to prohibit flag burning, and I have voted against amending the U.S.
Constitution. Today, I will do so again.
I take amending the U.S. Constitution very seriously. In the entire
history of the United States we have only amended the Constitution 17
times after the Bill of Rights. Seventeen times in over 200 years--
that's it.
We have amended the Constitution to extend rights. We have amended
the Constitution to end slavery, give women the right to vote, and
guarantee equal protection of the laws to all citizens. The
Constitution protects our liberty and it is the symbol of the strength
of our Nation. I believe that it is my obligation as a Member of this
body to protect its integrity and strength.
So many of our veterans have fought to protect our flag and what it
stands for in battle. They have defended our flag and the nation
against foreign enemies. These men and women fought valiantly to
protect America and this issue is very important to veterans, who fall
on both sides of the debate.
Many want an amendment to protect this important symbol of our
Nation. Others know that the flag is a symbol of our freedom but our
freedom endures beyond the cloth of the flag.
I respect how strongly they feel about our flag and all that it
stands for. I share their concerns and have seriously considered
supporting a constitutional amendment.
But, I have weighed the concern about protecting this national symbol
with the need to defend our Constitution and the rights of free speech.
I believe that the substitute offered by Senator Durbin strikes the
right balance. My colleague from Illinois has offered an alternative to
amending the Constitution that would protect the flag and protect the
Constitution. I will support that alternative approach today.
Yet, I can't help but be concerned about why we are raising this
issue now. There has not been a sudden surge in flag burning. In fact,
to the contrary, I see more Americans waving their flags proudly as
they support our troops overseas. It disappoints me that we raise this
issue now, instead of focusing on priorities that really matter to
veterans.
Instead of focusing on amending the Constitution, we should be
standing up for our veterans where it really counts. Support for our
military in the field must be matched by support for our veterans at
home. This means deeds, not just words.
There are 25 million veterans in the United States. These veterans
served with honor, bravery and sacrifice. The way to thank them is with
a commitment to veteran's healthcare, veteran's programs and veteran's
services.
Whether at Iwo Jima, Pork Chop Hill, the Mekong Delta, Falluja or the
mountains of Afghanistan, our veterans shouldn't have to fight for the
services they need and deserve at home. Instead of debating this
amendment, the Senate should take up and pass Senator Akaka's Keeping
Our Promise to America's Veterans Act.
I am proud to cosponsor this bill, which does five things to provide
real support to our veterans with deeds, not just with words. First, it
makes sure veterans get full funding for veterans medical care by
accounting for growing vets population and rising health care costs.
Second, it provides mental health care to vets from Afghanistan and
Iraq. Third, it allows VA hospitals to fill prescriptions written by
private doctors. Fourth, the bill guarantees concurrent receipt of
military retired pay and VA disability benefits. Finally, this bill
makes it easier to take advantage of the G.I. bill by excluding G.I.
benefits from financial aid eligibility computations.
I am disappointed that the Senate has chosen to spend time on this
debate, instead of taking up this important bill and keeping our
promise to America's veterans. We are giving our veterans rhetoric
instead of results, and I am deeply disappointed for Maryland's 500,000
veterans, and veterans all across the Nation.
Mr. HARKIN. Mr. President, I have come to the floor today to speak in
opposition to the flag desecration amendment to the Constitution.
If I were strictly following my emotions, I would no doubt favor this
amendment. After all, I can imagine few acts more despicable,
offensive, and cowardly than to deliberately desecrate the flag of the
United States of America. But in considering this constitutional
amendment, which for the first time would amend the Bill of Rights, we
have a solemn responsibility to separate reason from passion. We have a
responsibility to preserve and protect the Stars and Stripes of the
United States of America. But even more importantly, we have a
responsibility to preserve and protect the principles and rights for
which it stands.
Fortunately, instances of flag desecration in the United States are
extremely rare. Nonetheless, there is no denying the emotions and anger
that
[[Page S6527]]
are incited even by the thought of someone desecrating the American
flag. I myself feel those emotions and that anger. I believe that we
all do. We all have memories that cut deep to the heart, and when we
see the flag on fire it feels like something burning inside of us.
I remember what the flag meant to my mother, an immigrant from what
is now Slovenia, who came to America speaking just a few words in
English. When I was growing up, the American flag was always proudly
displayed in our home because, to my mother, that flag meant the
freedom of her new country.
I have not forgotten my mother's pride, and even now the American
flag, standing proudly by my desk, is the first thing I see when I go
to work in the morning and the last thing I see when I leave to go home
at night.
I remember, too, the friends I lost in Vietnam. I remember escorting
the body of a fellow pilot to his home and presenting the American flag
to his widow. The flag is our country's ultimate tribute to a fallen
soldier.
So it is with strong feelings--right here in my stomach and right
here in my heart--of rage and disgust that I view those who would
desecrate my flag, defile my memories, and dishonor my heritage.
I think back to my days flying jets in the Navy.
I think of the friends I had, and the friends I continue to have as a
proud member of American Legion Post 562 in my hometown of Cumming, IA.
Over the years, I have turned to my fellow veterans to see how they
would vote on such an amendment. Some were for, some against. But I
have been most impressed by the arguments of those who oppose a flag
desecration amendment.
Frankly, I expected my neighbor, who earned five Purple Hearts in
combat, to be gung-ho for a constitutional amendment. But he told me he
was absolutely opposed to an amendment. He said, ``I fought for
freedom. I didn't fight for doing away with freedom.''
An Iowa veteran I met at a coffee shop had this common-sense
perspective. Speaking of the flag-burner in the case of Texas v.
Johnson, he said: ``Look, this flag burner, this Greg Johnson, he's
just one of a handful of kooks. Should we change the Bill of Rights,
which has never been changed, for a handful of kooks?''
Most moving to me was the article I read years ago in the Cedar
Rapids Gazette by a former prisoner of war, James Warner.
Let me read to you part of his article:
It hurts me to see other Americans willfully desecrate the
flag. But I have been in a communist prison where I looked
into the pit of hell. I cannot compromise on freedom. It
hurts to see the flag burned, but I part company with those
who want to punish the flag burners.
Mr. Warner went on to recount how, in a North Vietnamese prison camp,
he was given a choice: He could renounce his country and leave, or stay
and be tortured. James Warner chose to stay. The North Vietnamese tried
to break his spirit but they couldn't. During one interrogation, his
captor showed him a photograph of some Americans protesting the war by
burning a flag.
``There,'' the North Vietnamese officer told him, ``People in your
country protest against your cause. That proves you are wrong.''
``No,'' Warner said, ``That proves I am right. In my country we are
not afraid of freedom, even if it means that people disagree with us.''
In that moment, the interrogator was on his feet--his face purple
with rage, according to Warner's account. There was also pain in the
interrogator's eyes, compounded by fear. The Communist feared freedom;
only freedom could be used to defeat him.
Likewise, in 1989, the Chinese Communists feared the students in
Tianamen Square who burned the Chinese flag. The students' protests
were silenced with tanks and guns. As communism crumbled across Eastern
Europe in the late 1980s, expressions of freedom took many forms:
protests, speeches, underground newspapers, strikes--and yes, even flag
desecrations. And when we saw those torn and burned flags, symbols of
Communist domination, did we denounce these protestors for defiling
their own State symbols? Of course not. We praised them for their acts
of political defiance. Burning and tearing their flags represented a
powerful act of political speech, a denunciation of the communist
regimes that had oppressed those countries for decades.
And once the Communist regimes began to fall, what came next? Calls
for Western-style guarantees of rights to freedom of the press, freedom
of association, and freedom of speech. Many called for a constitution.
They knew what some of us seem to forget: That the only way those
freedoms can be protected is with an inviolable Bill of Rights such as
our own. A Bill of Rights that has stood unchanged for more than two
centuries--despite Civil War, Depression, two world wars, and powerful
internal movements of dissent. Even at those times of profound turmoil,
we resisted any temptation to amend the Bill of Rights.
As a veteran, I will never, ever do anything to show disrespect for
the flag. At the same time, I will never, ever do anything that would
diminish the freedom our flag represents.
In our churches, synagogues, and mosques, we are taught not to
worship the idols of our faith, but rather the ideals of our faith.
Likewise, patriotism is not measured, first and foremost, by our love
for the flag as a physical object, but by our love for the rights and
ideas the flag stands for.
I do not want to see the flag become another Golden Calf--an object
to be worshipped for the sake of worshipping. The flag is only as
powerful as the republic--and the rights and ideals--for which it
stands.
Back in 1990, when the Senate first debated--and rejected--a flag
desecration amendment, I remember reading a letter to the editor of the
Burlington, IA, Hawkeye, written by a World War II veteran who had
volunteered for duty. He wrote:
I served my country under the flag. I pledged allegiance to
the American flag, and to the Republic for which it stands.
`Stands' is the key. The flag stands for the government. The
government guarantees us free speech. My allegiance is to the
flag however it is displayed, cloth, paper, paint, or the one
that waves continuously in my mind. That one, in order to
burn, they would need to burn me. I like the Bill of Rights
just as it is. Exactly what the flag stands for.
So wrote the veteran from Mount Pleasant, IA. And he concluded with
these words: ``Isn't it better to put up with a few disgusting
frustrating acts of free speech than to open a Pandora's box?''
I have to agree with his characterization of this amendment as a
``Pandora's box'' which, once opened, could lead to other proposals to
punch holes in the Bill of Rights.
Mr. President, I hope that the Senate will reject this amendment,
once again. But I believe this debate can have a positive legacy--not
by diminishing our rights as citizens, but by increasing public
displays of the flag, increasing people's knowledge and understanding
of the flag's history, and increasing good citizenship and public
service.
We are proud of the flag. Let us fly the flag.
We are proud of the flag. Let us tell our children and grandchildren
about what that flag represents, what it means and why so many died for
it.
That flag in my mother's house was not used as a tablecloth, it was
not used as a scarf, it was not used as a piece of clothing. I grew up
believing there was a proper way to hold the flag, a right way to
display it. We need to take it a step further and educate people, young
and old, as to the meaning behind the symbols--behind the flag and our
Bill of Rights.
Mr. President, next week we celebrate 230 years since our Declaration
of Independence. Fireworks will recall the `rocket's red glare' and the
`bombs bursting' overhead when those who were first to wear the uniform
of the United States Armed Forces put their lives on the line.
And in all of our 50 States, the American flag will be hailed, waving
in the breeze over courthouses and city halls, public buildings and
private homes. Pride will be felt and respect shown, not because it is
mandated by law, but because it is embedded in our hearts.
I can think of no more patriotic way to celebrate the Fourth of July,
no better way to show respect for the American flag and for the
principles for which it stands, than by voting against this proposed
amendment to the Bill of Rights.
[[Page S6528]]
Ms. SNOWE. Mr. President, I rise today to support in the strongest
terms the proposed constitutional amendment to grant the States and
Congress the power to prohibit the physical desecration of the flag of
the United States.
Our flag occupies a truly unique place in the hearts of millions of
citizens as a solemn and sacred banner of freedom. As a national emblem
of the world's greatest democracy, the American flag should be treated
with unyielding respect and scrupulous care.
At this time when Americans are fighting and, tragically, perishing
under the flag of the United States, it is long overdue that we pass a
constitutional amendment to protect that very symbol of American ideals
from acts of desecration. We lost the effort by just 4 votes 6 years
ago in the Senate. Meanwhile, the other body has done its duty and
passed a bill twice. We in this chamber must finally do the right thing
and protect our flag once and for all and for all time
With the introduction of this resolution, we resume our effort to
protect the greatest symbol of the American story and American
experience. There is no more powerful example of freedom, democracy,
and our steadfast commitment to those principles than the American flag
, and it is altogether fitting and just that we try to ensure that it
is publicly displayed with pride, dignity, and honor.
I cannot underscore the point enough that the flag is not merely a
visual icon to us, nor should it be. The American flag is not just
another piece of cloth. It is not just another banner or logo or
emblem. It is our revered testament to all that we have defended and
protected. Too many Americans have contributed too much and sacrificed
too much . . . their labor, their passion, and in many cases their
lives for the flag to be simply and frivolously regarded. The flag
permeates our national history and relays the story of America in its
most direct, and most eloquent terms. Indeed, knowing how the flag has
changed--and in what ways it has remained constant--is to know the
profound history and limitless hopes of this country.
More than 220 years ago, a year after the colonies had made their
historic decision to declare independence from Britain, the Second
Continental Congress decided that the American flag would consist of 13
red and white alternating stripes and 13 white stars in a field of
blue. These stars and blue field were to represent a new constellation
in which freedom and government of the people, by the people and for
the people would rule. The colors of the flag are representative, as
well. Red was to represent hardiness and valor, white was to represent
purity and innocence and blue was to represent vigilance, perseverance
and justice. And as we all know, the constellation has grown to include
50 stars, but the number of stripes has remained constant. In this way,
the flag tells all who view it that no matter how large America may
become, she is forever rooted in the bedrock principles of freedom and
self-government that led those first 13 colonies to forge a new nation.
Even more significant is the fact that the flag also represents our
enduring pledge to uphold these ideals. This dedication has exacted a
high human toll, for which many of America's best and brightest have
given their last full measure of devotion. It is in their memories and
for their ultimate sacrifice to America's ideals that I am proud to
support this amendment.
Make no mistake, this amendment is necessary because the Supreme
Court, in its 1990 U.S. verses Eichman ruling, held that burning the
flag in political protest was constitutionally protected free speech.
No one holds our right to free speech more dearly than I do. But I have
long held that our free speech rights do not entitle us to consider the
flag as merely personal property, to be treated any way we see fit,
including its desecration for the purpose of political protest. The
fact is the Eichman decision unnecessarily rejects the deeply held
reverence millions of Americans have for our flag. With all the forums
for public opinion available to Americans every day, from television
and radio, to newspapers and Internet chat rooms, Americans are
afforded ample opportunity to freely and fully exercise their first
amendment rights, even if what they have to say is overwhelmingly
unpopular with a majority of American citizens. At the heart of the
issue is respect. I applaud the right to protest and to assemble in
order to express opinion, dissent, or a point of view. Write letters to
the editor. Start a website. Create a blog. Organize. Leaflet. March.
Chant. Speak out. Petition. Do any and all of these things but do not
burn our flag.
As we consider this amendment, we must also remember that it is
carefully drafted to simply allow the Congress and individual State
legislatures to enact laws prohibiting the physical desecration of the
flag, if they so choose. It certainly does not stipulate or require
that such laws be enacted, although many States and the Federal
Government have already demonstrated widespread support for doing so.
In fact, 48 States, including my own State of Maine, along with the
Federal Government, have had antiflag burning laws on their books for
years and that was prior to the Supreme Court's rulings on this issue.
So, in effect, what this resolution does is simply give the American
flag the protection that almost all the States, the Federal Government,
and a large majority of the American people have already endorsed.
Whether our flag is flying over the U.S. Capitol, a State house, a
military base, a school, Fenway Park, or on a flag pole on Main Street,
the stars and stripes represent the ideals and values that are the
foundation of this great Nation. Our flag has come to not only
represent the pride we have for our Nation's past glories, but also to
stand for the hope we all harbor for our Nation's future.
Perhaps it was The Reverend Henry Ward Beecher who captured best the
essence of the flag's meaning and symbolism more than a century ago
when he wrote that ``a thoughtful mind, when it sees a nation's flag,
sees not the flag only, but the nation itself and whatever may be its
symbols, its insignia, he reads chiefly in the flag the government, the
principles, the truths, the history which belongs to the nation that
sets it forth.''
Mr. President, our flag represents not just the new constellation of
freedom envisioned by our forebears, but the distillation of that
freedom, too everything that was behind the forming of our nation and
everything that informs our nation and who we are to this day. So, it
is with undaunted pride and unwavering hope that I urge my colleagues
to support this amendment.
Mr. DOMENICI. Mr. President, I rise today in support of the flag
protection amendment, S.J. Res. 12.
This amendment was precipitated by the Supreme Court's ruling in
Texas v. Johnson, which overturned a law which prohibited flag burning.
The ruling made the burning of the American flag a legitimate exercise
of free speech.
I believe freedom of speech, guaranteed in the first amendment, is
one of the fundamental freedoms the Founding Fathers sought to protect
since it is the basis for every other freedom we enjoy. However, in the
past the Supreme Court has ruled that freedom of speech is not an
absolute freedom. For example, it is unlawful to yell ``fire'' in a
crowded auditorium, and it is also illegal to threaten to harm the
President of the United States.
I disagree with the Supreme Court's analysis of flag burning. The
Supreme Court erred in equating free speech with the desecration of the
American flag. The act of desecrating the American flag goes beyond
merely expressing a point of view--it is a violent act against the
symbol of our Nation. It is not an act of free speech. Every American
is free to denounce our Nation and ideals for which the flag stands.
Frankly, I think it would be terribly misguided, but if that is what
they want to say, they have the right to say it. There is a vast
difference, however, between speaking one's mind and desecrating the
symbol of our Nation.
The American flag is a unifying symbol of our Nation and is
considered by many to be the physical embodiment of the founding
principles of this country. The predominance our flag holds in the
national psyche was reconfirmed after the September 11 attacks, when
the vision of the red, white and blue galvanized our Nation.
The American flag is not just a piece of cloth. It is a symbol of
freedom and of the sacrifice it takes to gain that freedom. The red
stripes are there to
[[Page S6529]]
remind us of the blood that was and continues to be shed in defense of
this Nation.
I have the deepest reverence for the U.S. Constitution, and I do not
believe it should be amended casually. However, in this case, I believe
the American flag and all it represents deserves the protection of our
laws. Therefore, I have decided to support a constitutional amendment
that would require due respect for this great symbol of freedom.
Mr. FEINGOLD. Mr. President, I understand the desire of my colleagues
to defend the flag, and I share their outrage at the despicable conduct
that some families of fallen servicemembers have had to endure as they
bid farewell to their loved ones. But I cannot support the substitute
amendment offered by the senior Senator from Illinois. The Supreme
Court has twice held that criminalizing flag desecration violates the
first amendment. Flag burning is unacceptable, but outlawing certain
forms of flag destruction based on the message that the misguided
person is trying to convey raises obvious first amendment problems.
The vast majority of flag desecration incidents can be prosecuted
under criminal trespass, destruction of private property, and other
State and local criminal statutes. We do not need a Federal statute to
handle the handful of other incidents that occur each year, and we
certainly should not amend the Constitution to make such a statute
possible.
Mr. INHOFE. Mr. President, today this Chamber considers whether to
send a constitutional amendment to the States and people of the United
States, a United States that is represented by that glorious flag that
stands to your right, Mr. President.
This is not the first time the people's elected representatives have
acted to protect the flag, but as a result of a willful judicial
resolve, we are forced to take this decisive action as the people's
duly elected policymakers.
I find it highly doubtful that the Framers intended the first
amendment to cover flag desecration as protected speech. I find it even
more unlikely that they intended the courts to be able to tell Congress
that it cannot protect our flag. Quoting Alexander Hamilton, in The
Federalist No. 78, it is Congress who ``prescribes the rules by which
the duties and rights of every citizen are to be regulated,'' not the
courts. This is a principle I have consistently stood for and will
stand for again when I vote in favor of S.J. Res. 12. When I see images
on the news of different groups around the world burning American
flags, it sickens my stomach. That is not speech: that is chaos. That
is the mob mentality that is rebelliousness. That is conduct that
appeals to the deepest and darkest parts of human nature. That is not
the kind of riotous conduct that should be protected in this Nation;
this amendment will allow us to make that clear once and for all.
I have heard some say--Justice Brennan in Eichmann--that allowing
protesters to burn the flag is the greatest tribute to that flag, that
what the flag stands for allows those who hate it to abuse it. Though I
understand the merits of this argument, I disagree that it gives any
kind of real reason to allow this behavior. This pseudo reverent
justification could also defend spitting on our soldiers returning from
duty or the hateful, vile-spewing protesters who want to defile the
funerals of our Nation's heroes. After all, it is our soldiers who give
these protesters a free country in which to protest.
Opponents say that one has a right to burn the flag. I say that we
have a right not to have our flag burned. Countless soldiers and
citizens have given their lives defending what this flag stands for. It
is time that we, as the Congress of the United States, stand up and
defend our flag, that we recognize that our national symbol that
represents our system of laws is worthy of the protection of our laws.
Mr. SESSIONS. Mr. President, the amendment we are debating is short
and to the point. It contains only 17 words:
Congress shall have the power to prohibit the physical
desecration of the flag of the United States.
We are discussing this today because in 1989, in Texas v. Johnson,
five members of the Supreme Court held that flag desecration--
specifically burning the American flag--was a form of first amendment-
protected speech and Texas's law banning desecration of the flag was
unconstitutional. Adding insult to injury, when Congress passed the
Flag Protection Act of 1989, codified as title 18, section 700 of the
United States Code, five members of the Supreme Court struck down that
law as unconstitutional, too, in United States v. Eichman, 1990.
I believe the amendment we are considering today is entirely
appropriate, and I am proud to cosponsor it. I wish to respond briefly
to some of the criticism I have heard. Some would say: Well, you want
to limit free speech when you want to stop burning the flag.
Now, it is true that the Supreme Court, by a 5-to-4 majority, held
that the act of burning a flag is free speech. Well, I don't agree. The
Supreme Court for a long time has allowed reasonable ``time, place, and
manner'' restrictions on speech.
Moreover, the Supreme Court has long recognized that:
[t]here are certain well-defined and narrowly limited
classes of speech, the prevention and punishment of which
have never been thought to raise any Constitutional problem.
These include the lewd and obscene, the profane, the
libelous, and the insulting or `fighting' words--those which
by their very utterance inflict injury or tend to incite an
immediate breach of the peace.
The late Chief Justice Rehnquist wrote in his dissent in Texas v.
Johnson: ``Far from being a case of `one picture being worth a thousand
words,' flag burning is the equivalent of an inarticulate grunt or roar
that, it seems fair to say, is most likely to be indulged in not to
express any particular idea, but to antagonize others.'' It is not
really ``speech'' at all, but if you consider it some sort of
expression, it is certainly inarticulate. It is not of great value
compared to the unifying symbol of the flag.
The first amendment is about intelligent debate, argument, concern
over policy issues--not whether you get to ``grunt'' or ``roar'' by
burning a flag. I don't believe flag-burning was ever intended to be
covered by the Constitution. So I believe the Supreme Court got it
wrong in Texas v. Johnson and United States v. Eichman.
More importantly, the American people agree that the Supreme Court
got it wrong. All 50 States have asked Congress to propose an amendment
prohibiting flag desecration. In our democracy, the people have the
last say on the Constitution. If the people think the Supreme Court is
wrong, they have every right to amend the Constitution and tell it so.
In my view, the flag of the United States is a unique object, and
prohibiting its desecration will not in any fundamental way alter the
free expression of ideas in this country.
It seems to me if burning the flag is speech and if the Court is
correct in saying it is speech and the people of the United States care
deeply about protecting the flag, then they should adopt a restricted,
narrow constitutional amendment that would allow Congress to stop flag
desecration.
Indeed, it would be healthy for this country to adopt a
constitutional amendment that would allow the protection of the flag.
More Medals of Honor have been awarded for preserving and fighting to
preserve the flag than any other. We know the stories of battle when
time after time the soldier carrying the flag is the target of the
enemy. When he fell, another one would pick it up. When he fell,
another one would pick it up. When he fell, another one would pick it
up. That is the history.
We pledge allegiance to the flag, not the Constitution, not the
Declaration of Independence. We pledge allegiance to the flag because
it is a unifying symbol for America, and having a special protection
for it is quite logical to me.
I do not believe we should never amend the Constitution. I do not
think we amend the Constitution enough. But we want to have good
amendments that are necessary, that are important, that enrich us, and
that make us a stronger nation. In 1816, Thomas Jefferson wrote: ``Some
men look at constitutions with sanctimonious reverence, and deem them
like the ark of the covenant, too sacred to be touched.'' Jefferson
disagreed and proposed amending a constitution every 20 years or so so
that it could ``be handed
[[Page S6530]]
on, with periodical repairs, from generation to generation, to the end
of time, if anything human can last so long.''
I don't know whether we need to amend the Constitution every 20
years, as Thomas Jefferson proposed, but I do think a constitutional
amendment is a healthy way for us to remind ourselves that this Nation
is a democratic republic. We are not a nation under the rule of the
Supreme Court. The Constitution belongs to ``We the People of the
United States,'' as its preamble states--not the judiciary of the
United States. The Constitution was democratically adopted. It was
meant to be democratically amended. It must remain democratically
accountable--or lose its legitimacy as the foundation for a democratic
republic.
Let me finally address one more concern about the language of this
amendment. It is short. It is concise. And it leaves it to Congress to
address the details on what specific forms of conduct to prohibit. I
trust Congress to do that. Congress did it in 1989 with the Flag
Protection Act codified at title 18, section 700 of the United States
Code.
Concern has been expressed that the term ``desecration'' is too
broad, too vague. I don't think so. I think it will clearly grant
Congress the power it needs without any restriction on our great
freedoms, particularly real speech.
Mr. President, the flag of the United States is a unique, unifying
symbol of our country and all it embodies. Brave men and women have
fought and died for that flag and what it represents. Let us today act
to protect the flag and adopt S.J. Res. 12.
Mr. ENZI. Mr. President, I rise in strong support of S.J. Res. 12
which proposes an amendment to our Constitution allowing Congress to
prohibit the physical desecration of the flag of the United States. I
am proud to be an original cosponsor of the resolution introduced by my
colleague from Utah.
Throughout the years of our Nation's existence, many brave men and
women have fought and died to defend the freedom that our flag
symbolizes. We must honor their memory by protecting our flag and
preserving this symbol of our Nation and the unity of the 50 States. I
have heard from veterans across my home State of Wyoming about their
service and the importance of the flag in both their military and
civilian lives. Our flag is a constant reminder of all those who have
sacrificed so much so that we might be free.
We are now engaged in a new and different kind of war. We have taken
up arms to end the threat of terror. We have been joined by many
different nations in that effort, but we are, once again, relying on
our own Armed Forces, the greatest fighting force in the world. With
the talents and abilities of our service members and our support and
prayers, I have no doubt they will get the job done.
When our deployed troops return home, they will deserve our support
and encouragement as they return to their everyday lives. I believe
they will also expect us to take action to ensure the symbol of our
Nation that they carried with them into battle is afforded the
protection it deserves. We must ensure our flag is respected and
protected as a symbol of our freedoms and the sacrifices that were
made.
Over the last couple of days, some Members of this body have made
some misleading statements about what this resolution does. Let's be
clear--this piece of legislation does not ban anything. It does begin
the process of restoring the authority of Congress to pass a flag
desecration statute. A constitutional amendment will only become law if
it is approved by three-quarters of the States.
I have also heard some of my colleagues claim that the language we
are debating is too vague. Again, this is simply the first step in a
process. The details will be debated once Congress regains its
authority to make laws related to the desecration of the flag. It is
then the job of those in Congress to talk about and debate the
definition of desecration and what that word will mean in our laws.
Again, I believe our flag should be protected as a symbol of this
Nation and our history. It represents us in military actions, in
athletic competitions, diplomacy, and any activity we engage in around
the world. The flag helped rally the Nation after the attacks of
September 11, 2001. It calls to mind those who serve on our police,
fire, and emergency response teams, risking their lives every day to
ensure we are safe and protected from harm.
Diana and I have a friend from Finland who taught in the United
States for a year. She had a flag of Finland that she traveled with
while we were debating a flag burning amendment. She couldn't believe
that anyone would dishonor their country's flag by burning it. As a
symbol of the country, she couldn't believe that anyone would desecrate
it in any way. She couldn't imagine that burning or desecrating the
flag of a person's own country could have any positive effect. She
believed that what people were doing to the symbol of our Nation would
have a very detrimental effect overseas.
Changing the law may not change people, but the discussion alone that
we are having should point out what is right and wrong and how other
countries view the disrespect we demonstrate for our country. People
are missing the issue of the protests. They are only seeing the
disrespect for the country. We can do better. We must do better. This
amendment will help us do better on focusing on problems instead of
drama that takes away from ways we can make our lives and our country
better.
Our flag symbolizes our hope for the future and our willingness to
work together to make this world a better place for us all to live.
That hope for tomorrow unites us, guides us, and helps to make us truly
one Nation under God, with liberty and justice for all.
I encourage all Senators to support S.J. Res. 12.
Mr. VITTER. Mr. President, the America flag is such an important
symbol to our country that from the time we are children, we salute the
flag with a hand over our hearts and pledge our allegiance to the flag
of the United States of America. For the past two centuries, in battles
all around the globe, the American flag has served as an inspiration
and rallying point for our Armed Forces fighting for the ideals it
embodies. We hold the flag with such reverence that it covers the
coffin of America's military heroes who have dedicated their lives to
the service of our Nation. Old Glory should be revered and protected
because it represents American History, American sacrifice, and hope
for our Nation's future.
On the Fourth of July, especially, we are reminded of the sacrifices
of our forefathers in founding this great Nation, and the American flag
symbolizes that sacrifice. The act of burning or destroying the flag
shows a tremendous disrespect for our forefathers and the countless men
and women who have given their lives to make the United States what it
is today. That's why I am an original cosponsor of the flag protection
amendment, and I rise to speak in support of it today.
By supporting this amendment, I believe that I am supporting the will
of the people of Louisiana and the American people. I have received so
many phone calls, letters, and e-mails from people in my home State of
Louisiana in support of a constitutional amendment to prevent the
desecration of our American flag. Polls show an overwhelming majority
of Americans believe that burning the U.S. flag should be a crime.
According to Fox News poll when asked, ``Do you think burning the
American flag should be legal or illegal?'', 73 percent respondents
said they thought it should be illegal.
Before the Supreme Court issued its decision in Texas v. Johnson,
declaring that flag burning is politically expressive conduct protected
by the first amendment, 48 States, including Louisiana, and the
District of Columbia, had enacted statutes prohibiting the physical
desecration of the American flag. In my opinion, the Johnson decision
is just one more example of unelected activist judges ignoring the will
of the American people. In response to the Court's decision in Johnson,
Congress enacted the Flag Protection Act. However, in U.S. v. Eichman
the Court struck down the Flag Protection Act, holding that
Government's interest in protecting this symbol did not outweigh the
individual's right to politically expressive conduct.
Since the Supreme Court issued these 2 decisions, all 50 States have
passed resolutions asking Congress to pass a constitutional amendment
that would
[[Page S6531]]
provide some protection to the American flag. This is overwhelming
evidence that the American people disagree with these activist decision
and believe that the flag--the symbol of Our nation--should be
protected. I believe that we as Senators owe it to our constituents--as
their elected representatives--to support this amendment and give
Congress the power to enact a law banning the physical desecration of
the U.S. Flag.
The Flag Protection Amendment gives Congress the power to enact laws
prohibiting the ``physical desecration'' of the flag. This amendment
does not ban flag burning--it doesn't ban anything. It merely gives
Congress the power to enact legislation if and only if three-fourth of
the States ratify the amendment within 7 years. Therefore, this
amendment would place the power back into the hands of the American
people, which, in my mind, is much better than leaving it in the hands
of activist judges.
Opponents of this amendment state that any laws prohibiting physical
desecration of the flag, no matter how narrowly tailored, violate an
individual's first Amendment right to free speech. However, while the
first amendment grants Americans the precious right to free speech,
that right is not without limitations. For example, the Supreme Court
has held that certain types of hate speech and obscenity are not
covered under the first amendment. Additionally, public school teachers
may not espouse their personal religious views in the classroom, and
attorneys and doctors cannot breach the confidence of their clients.
The first amendment protects a number of avenues for individuals to
voice their dissent, but it should not protect the physical desecration
of the symbol that embodies the spirit of our Nation.
It is time for the Senate to pass the flag protection amendment--an
amendment that has overwhelming bipartisan support and 59 cosponsors.
The House passed this amendment last year by two-third majority. Now it
is time for the Senate to pass this amendment so that we can send it to
States and give the American people a chance to vote on this very
important legislation. Mr. President, I believe that protecting the
symbol of our Nation is one of our duties as elected representatives of
the American people, and it is too important to leave in the hands of
activist judges.
Mr. JOHNSON. Mr. President, today I share with my colleagues my
thoughts on S.J. Res. 12 to amend the Constitution of the United States
to prohibit the physical desecration of the flag of the United States.
There are good, thoughtful, and patriotic Americans on both sides of
this contentious issue. I have great respect for the views of many that
amendment would constitute an unnecessary and harmful interference with
the first amendment guarantees of free speech. Nonetheless, I am a
supporter of S.J Res. 12. For most of America's history, flag
desecration has been illegal under State law and local ordinances. This
constitutional amendment allows the return of the law to its former
state, and I support this amendment to ensure those protections.
Mr. McCONNELL. Mr. President, whether flying on an aircraft carrier,
hanging in one of our Embassies, or worn as a patch on a soldier's
uniform, the American flag stands for freedom.
The vast majority of Americans honor the flag, and rightly so. Some
would go so far as to amend the Constitution to protect the flag
against those who would burn it. While I share and admire their
patriotism, weakening the first amendment, even for the noble purpose
of protecting the flag, is not a position I can support.
Make no mistake I treasure the Stars and Stripes as much as any
American. One of my most prized possessions is the flag which honored
my father's military service in World War II. It was draped upon his
coffin after his death from cancer in 1990. He fought in the European
theater to protect the freedoms that flag represents, and it now rests
proudly on the mantle in my Senate office.
I do not have any sympathy for any who would dare desecrate the flag.
They demean the service of millions of Americans, including my father
and the brave men and women currently fighting the war on terror. They
deserve rebuke and condemnation.
There may be no greater symbol of freedom than the flag. Its powerful
symbolism is precisely why miscreants choose to desecrate it to make
their point. They intend to convey a powerful message, and they have
succeeded, because we find their message so disgusting that proponents
of S.J. Res. 12 seek to ban their message. But freedom of speech means
nothing unless people are allowed to express views that are offensive
and repugnant to others.
Over 60 years ago, Justice Jackson noted how much the flag means to
all Americans, and at the same time argued that the principles of
liberty require us to allow others to view the flag differently than we
see it ourselves. He wrote that:
The case is made difficult not because the principles of
its decision are obscure but because the flag involved is our
own . . . But freedom to differ is not limited to things that
do not matter much. That would be a mere shadow of freedom.
Since our founding, we have watched other nations silence dissent,
while America welcomed it--and America has prevailed. In fact, the
Senate has seen free and open debate this week about the flag
resolution. Those who support the resolution have made their best
arguments to try to convince those who disagree. Regardless of the
outcome of the vote on this measure, this week's debate is good for
democracy and good for America.
Free and open debate is also the correct approach to use in dealing
with those who desecrate the flag. The Supreme Court has recognized
that ``[t]he way to preserve the flag's special role is not to punish
those who feel differently about these matters. It is to persuade them
that they are wrong.''
Flag burning is an abominable act. We are lucky to live in a country
where the overwhelming majority of people not only reject it, but honor
the American flag and the freedoms it stands for. These freedoms are
America's source of strength, whether embodied in the first amendment's
protection of speech, or the second amendment's protection of the right
to bear arms, or the fifth amendment's protection of private property,
or in any other provision of our enduring Constitution.
Ultimately, people who use the flag to convey a message of protest
pose little harm to our country. But weakening our first amendment
freedoms might.
Our Founding Fathers wrote the first amendment because they believed
that, even with all the excesses and offenses that freedom of speech
would undoubtedly allow, truth and reason would triumph in the end. And
they believed the answer to offensive speech was not to regulate it,
but to counter it with more speech, and in so doing, let the truth
prevail in the marketplace of ideas.
The PRESIDING OFFICER (Mr. Martinez). The Senator's time has expired.
The majority leader is recognized.
Mr. FRIST. Mr. President, I ask unanimous consent that the committee
amendment be agreed to and that the following amendment be the only
amendment in order to the pending joint resolution, S.J. Res. 12:
Durbin first-degree amendment relating to statutory language. I further
ask consent that all debate be equally divided between the two leaders
or their designees until 5:30; and further, at that time the Senate
proceed to a vote in relation to the Durbin amendment; further that the
resolution then be read a third time and the Senate proceed to a vote
on passage of S.J. Res. 12, as amended, with no further intervening
action or debate; provided further that if all 100 Senators fail to
vote on final passage, then the vote be reconsidered and the Senate
vote again on final passage on Thursday, June 29, at a time determined
by the two leaders.
The PRESIDING OFFICER. Is there objection?
Mr. REID. Mr. President, reserving the right to object, I would
further ask that the consent agreement contain the understanding that
the Durbin first-degree amendment relating to statutory language be the
only amendment that would be in order.
Mr. FRIST. Without objection.
The PRESIDING OFFICER. That is part of the agreement.
Mr. DURBIN. Mr. President, reserving the right to object.
The PRESIDING OFFICER. The Senator from Illinois.
Mr. DURBIN. So it is clear, I will have an up-or-down vote on my
amendment.
[[Page S6532]]
Mr. REID. At 5:30.
Mr. DURBIN. But it will be an up-or-down vote directly on the
amendment; is that understood?
The PRESIDING OFFICER. The Senator from Kentucky.
Mr. BUNNING. Mr. President, I would like to just clarify the
unanimous consent request so that Members who are on the floor are not
excluded from the debate that is going on.
Mr. REID. Senator Frist and I will allocate the time that is left.
Mr. BUNNING. But there is time allocated presently.
Mr. FRIST. That is correct, Mr. President. Through the Chair, time
has been allocated. The remainder of the time will be allocated between
the two of us, and there is nothing in the unanimous consent request
that will interfere with that.
Mr. BUNNING. Thank you.
The PRESIDING OFFICER. Is there objection?
The Senator from Colorado.
Mr. ALLARD. Mr. President, I think Senator Kerry had asked for some
additional time, and it is cutting our time on this side. I want to
make sure we restore that time we would have lost.
Mr. REID. Mr. President, I think that is very appropriate. I believe
the extra time Senator Kerry took from the Republicans should be
restored. It would be about 5 minutes, I think.
The PRESIDING OFFICER. Is there objection?
Without objection, it is so ordered.
The committee amendment was agreed to.
Mr. FRIST. Mr. President, just briefly, on our side, because I can
tell there is some confusion as to the order, I have Senator Bunning
for 10 minutes, Senator Allard for 7 minutes, Senator Warner for 7
minutes, and Senator Thune for 5 minutes.
The PRESIDING OFFICER. The Senator from Kentucky is recognized.
Mr. BUNNING. Mr. President, I rise in support of S.J. Res. 12, the
flag protection constitutional amendment. It is fitting for the Senate
to address this issue on the eve of the Nation's most celebrated
national holiday, the Fourth of July.
For over 200 years, from the time of the Revolutionary War to this
very moment, the American flag has served as the most unifying and
visible sign of our great Nation. It is a symbol that knows no
particular political affiliation or ideology. It is a symbol that has
many different meanings for many different people. And, most
importantly, it is a symbol of our Nation's greatest freedom that so
many men and women in our Armed Forces have and continue to sacrifice
to protect.
I believe it is an insult to those sacrifices to stand idly by while
the flag is desecrated. It is time to show the same honor to our flag
that we do to those who have sacrificed to protect it. I believe we owe
it to our Old Glory, and that is why I am here today to speak in
support of the constitutional amendment to protect our flag.
This amendment is necessary to restore protections for the flag that
the Supreme Court wiped away in 1989, ruling in Texas v. Johnson. In
that 5-to-4 ruling, the Court set aside longstanding national and State
laws that protected our flag and recognized and honored its place in
American society.
Congress quickly acted in response to that ruling through the passage
of the Flag Protection Act of 1989. The Supreme Court, however, was
also quick to act. In another 5-to-4 decision, in 1990, the Court again
found that flag protections were inconsistent with their view of the
rights protected by the first amendment.
But the Court is once again out of touch with America. Its view that
flag burning should be protected is not shared by many Americans. In
fact, the vast majority of Americans think just the opposite.
Nationwide, over 70 percent of Americans think it is important for us
to pass a law to protect the flag. And in my State, that number is even
higher--87 percent think that it is important that we act now to
protect the flag.
It is time that we turn this issue back to the people. The
Constitution provides an amending process for a reason. The bar to
enact a constitutional amendment is high, requiring a two-thirds vote
of both the House of Representatives and the Senate. Likewise, the
amendment must be ratified by three-fourths of the States. But in the
rare instance when those super-majorities can be assembled, the Framers
gave us away to change the Constitution and for the people's voice to
be heard. That is just what we should and must do.
Since the Supreme Court's rulings, the House of Representatives
passed a flag protection amendment five times--most recently last year.
The Senate has also taken up the issue, but unfortunately failed to get
the necessary 67 votes. By all accounts, this time the Senate is within
one vote of adopting the amendment and sending it to the States for
ratification.
I have no doubt that should the Senate pass this resolution it would
be ratified by the States. While this issue is currently being debated
at the national level, States have been quick to show their
overwhelming support for such a resolution. Since 1989, all 50 States
have enacted resolutions asking Congress to pass a flag protection
amendment.
Mr. President, we owe it to Old Glory to protect each and everyone of
it stars and stripes.
Two weeks ago, I had the honor of introducing a man who fought to
rescue Old Glory from would-be flag-burners. Rick Monday, a former
center fielder for the Chicago Cubs and a Marine Corps Reservist,
rescued the American flag from being burnt by two protestors during a
1976 baseball game between the Cubs and the Dodgers.
Monday was playing center field for the Cubs that day, when suddenly
in the 4th inning two protesters ran onto the outfield grass carrying
the American flag. These two individuals then proceeded to spread the
flag on the ground, dousing it with lighter fluid and pulling out
matches to light it on fire. But before they could act, Monday dashed
from his position swiping the flag right out from under their noses to
the sound of thunderous cheers from the crowd.
Following Monday's patriotic actions those in attendance that day
burst into a chorus of God Bless America. Whether you are a player or a
fan, we all have our favorite memories from America's past time, but
few of those moments compare to Monday's act of patriotism. It is
arguably one of the greatest moments the game has ever seen. In fact,
the Baseball Hall of Fame recognized it as one of the 100 Classic
Moments in the history of baseball. Monday, a true American Patriot,
fought to stop what he knew was wrong in 1976 and is still wrong today.
Some may argue that burning the flag is a form of speech. I do not
agree with those people. In the 1989 flag burning case Texas v.
Johnson, late Chief Justice William Rehnquist said it well in his
dissent when he said that flag burning is more like a grunt or roar
designed to antagonize others than it is a form of speech.
Well, Mr. President, it is time that this body acted to protect Old
Glory from those who wish to indulge in its desecration. We owe it to
our past, present and future generations. And ultimately, we owe it to
the brave men and women who sacrifice so much to protect us at home and
abroad.
Each and everyone of us should recognize what a privilege it is to
live under the Stars and Stripes. And like Monday, we should do
everything we can to protect and honor our flag. After all, what it
represents is the very reason our troops are putting their lives on the
line right now in the war on terror. When you disrespect the flag you
are disrespecting our men and women in uniform.
Mr. President, on the eve our Nation's most important national
holiday, the Fourth of July, I urge my colleagues to protect our
Nation's great flag.
I believe it is our duty as public servants to protect one of our
Nation's greatest symbols of freedom--Old Glory.
Mr. President, I yield the floor.
The PRESIDING OFFICER. The Senator from Colorado is recognized.
Mr. ALLARD. Mr. President, I rise today, June 27, 2006, between Flag
Day and Independence Day, to speak on behalf of the American flag.
The American flag is a symbol, a physical embodiment of the freedom
and liberty that we as Americans are blessed to claim. More than a mere
banner of red, white, and blue, our flag characterizes the fundamental
essence
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of what it means to be an American: liberty, justice and equality.
Whether flown at a high school football game, in an Olympic arena, or
over this very building that we stand in today, the American flag is an
image that commands worldwide respect, while at the time symbolizing
the triumph of representative Government over the inequities of
tyrannical rule.
To allow for the physical desecration of such a symbol of opportunity
and liberty is not quite tantamount to condoning an assault on the very
foundation of our individual freedoms, but so close as to have damaging
effects. Strength in symbolism can oftentimes rely upon the extent to
which an image is protected by the society it represents, which is why
this is not an issue pertaining to freedom of expression, but rather an
issue of patriotic reverence and national identity.
The American flag has done more than wave as a symbol of freedom; it
has served as an inspiration, a guiding light to our men and women in
uniform throughout our Nation's history.
On New Year's Eve, 1776, just 7 months before the signing of our
Declaration of Independence, George Washington and the Continental Army
were laying siege to the British-occupied Boston. In the midst of
battle, Washington recognized the need to present a unifying symbol to
his own troops, as well as the need to commemorate the birth of our
truly unique sense of American pride. Inspired with the fortitude of
his continental troops, Washington ordered the hoisting of the Grand
Union flag. This was one of the first instances where our flag became
more than a symbol of independence, but the physical representation of
an ideal stemming from the innate human desire for freedom.
On June 14, 1777, almost a year-and-a-half after George Washington
raised the Grand Union flag over Prospect Hill, the Continental
Congress passed an act that officially gave America a flag. Though the
intricacies of the design have changed several times in our nation's
history, the principles that it represents have never faded.
Patrick Henry aptly summed up this uniquely American commitment to
personal liberty by stating, ``I know not what course others may take
but as for me; give me liberty or give me death.'' President Calvin
Coolidge once commented, ``We do honor to the stars and stripes as the
emblem of our country and the symbol of all that our patriotism
means.'' Henry and Coolidge spoke of a liberty that was fought for, and
won by the sacrifice of thousands of our American sons and daughters.
As it stands today, the American flag is a monument to their heroic
effort, and a testament to the price those serving our country are
willing to pay for our freedom.
With the 230th birthday of our Nation fast approaching, we will
undoubtedly see even more American flags on display in front yards, on
top of skyscrapers, and in the hands of people celebrating the birth of
our Nation. While many of these patriotic displays will coincide with
the festivities of this national holiday weekend, the unifying message
behind every one of these flags is that we as Americans understand the
power behind our national symbol.
It is time that we, as the Nation's legislature, restored the ability
of the America people to protect the flag as the symbol of our country.
This ability has been eroded over the years by judicial decisions that
have stripped away the people's right to protect the American flag and
all that it stands to represent.
This sentiment has garnered wide support across the Nation, as is
evidenced by all 50 states passing resolutions calling upon Congress to
enact some constitutional protections for the flag. In each of the past
five Congresses, the House has passed a constitutional amendment
designed to protect the flag from all forms of desecration, with the
latest measure passing almost a year ago by a vote of 286 to 130. Here
in the Senate, we came up only 4 votes short of the required two-thirds
majority in 2000.
Today, we stand closer than ever to passing this vital constitutional
provision. Some of my colleagues have expressed concerns regarding the
potential first amendment ramifications of passing this initiative.
First of all, this amendment does not ban anything. It simply restores
the authority of Congress, the representatives of the American people,
to pass a flag desecration statute if it chooses.
Second, even if such a statute were subsequently passed, it would not
place a restriction on the content of the speech, only on the means by
which the speaker wishes to communicate. Someone seeking to burn the
flag would still retain their right to express any political viewpoint
they wish to advance. They would, however, not have the ability to
desecrate the flag as a substitute for other forms of expressive
conduct.
This is why the resolution was reported out of the Judiciary
Committee with broad support originating from both sides of the aisle.
This bipartisan support is evidence that this issue transcends all
political ideology; and to me, this unity could not have come at a more
critical moment in history.
Internationally, our enemies have consistently used the desecration
and burning of our flag to symbolize plight of international democracy
at the hands of Islamist tyranny. Domestically, Americans are daily
assaulted with media images of home-grown extremists groups burning the
American flag in an attempt to speak out against the actions of their
Government. The irony, however, is not lost on the American people when
they see these political ideologues desecrate the very symbol that
gives them the right to speak in the first place.
This tendency to overshadow our flag's positive symbolism with
negative contextual imagery is the reason why the majority of Americans
support this amendment. We understand the power of this national
symbol, believe in the principles that our flag represents, and we know
that past generations have fought and died to ensure that those
principles resonate well into the future.
I ask the Senate to stand in unity with the American people and the
50 states and ask them to not let this opportunity pass us by without
acting to protect this still vibrant national symbol.
I yield the floor.
The PRESIDING OFFICER. The Senator from Virginia.
Mr. WARNER. Mr. President, I believe at this time I am scheduled.
Does the Senator from Pennsylvania have control of the time?
Mr. SPECTER. Yes.
Mr. WARNER. I will take a few minutes.
Mr. President, I was completing my luncheon and walking through the
hallway back to my office when a reporter in a very respectful way
spoke with me and asked how I intended to vote on this amendment.
I said I intended to vote as I have done three previous times;
basically to support it, the other options.
He said: What is the driving force? Is it your highest priority? And
he asked a series of questions in a very polite way which really said:
Stop and think what it is I am about to do and why I am about to do it.
I gave him a reply which follows along these lines: I listened to the
distinguished Senator from Pennsylvania yesterday referring with a deep
sense of emotional pride about how his family had proudly worn the
uniform of our country, and most particularly his father who was in the
great Army that went over in 1917-1918 to save Europe, in World War I,
and how he was severely wounded in the Battle of the Argonne.
I checked my own father's record. I, of course, have it proudly on
the wall in my Senate office. He served in World War I. He was engaged
in several major battles. He was a doctor in the trenches and cared for
the wounded. He was in the Battle of the Argonne. How do we know
perhaps my father rendered medical assistance to Senator Specter's
father. But those things are instilled in sons and daughters by their
parents.
When it came time for me to proudly raise my right arm and volunteer
in World War II, I did so because of my father and how proud he was, as
was my mother, who, incidentally, was with the American Red Cross in
World War I tending to the wounded in the hospitals in the United
States.
In my father's library in which I grew up as a small boy, there were
remnants and artifacts that he brought back from France from the 1917-
1918 experiences. I remember a small American flag, his helmet, his old
belt, and
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several other artifacts, and how he and my brother and I treasured them
as young persons.
My military service is of no great consequence. I did have the
opportunity for a short period in the final year of the war to go
through the training command, but I remember very well I was then just
in the training part of it--I think, out of boot camp or perhaps in
boot camp--seeing that flag raised on Iwo Jima. We didn't know at that
time in February-March of 1945 how long that war was going to last. We
had no idea. We just experienced the Battle of the Bulge in which the
final thrust of the German forces trapped so many of our soldiers with
unexpected casualties in the 40,000s in that battle and now Iwo Jima,
some 17,000 I think killed, wounded, and missing in that battle for
about 5 weeks.
I remember the picture of that flag going up. Now we see it on the
monuments out here which the Marines revere so deeply.
That was one of the reasons I later joined the Marine Corps and
served for another period on active duty, this time in Korea as a young
officer with the Marines. There was no particular valorous service,
just like many others. You raised your arm and did what you were told
to do and thanked God you got home in one piece. That is what we were
all glad to do.
So I am very humble about what little active service I had. But I
have had the privilege of being associated with the men and women of
the Armed Forces for over a half century, now in this Chamber serving
with others, again, 28 years on the Senate Armed Services Committee
doing everything we can for the men and women of the Armed Forces.
So I told this reporter that I felt I had a duty to those who had
worn the uniform of our country so proudly in these many years that I
was privileged to be associated and learn from them and profit from
them and my experience in the military.
It has been a great, wonderful opportunity for me to have this
service in the Senate and have as a part of it the responsibilities. So
I thought I would recount some statistics.
In World War I, the conflict in which our fathers served, I say to
Senator Specter, 116,000 killed, 204,000 wounded; World War II, 405,000
killed, 671,000 wounded; Korea, 54,000 killed, 103,000 wounded;
Vietnam, 58,000 killed, 153,000 wounded; Desert Storm, that is the
first engagement with Saddam Hussein's forces, 382 killed, 467 wounded;
Afghanistan, 291 killed, 750 wounded; the second battle with Saddam
Hussein, Iraqi Freedom, 2,521 killed, over 18,000 wounded.
Most, if not all, of those brave men, and I expect some women--I
fully anticipate women were included--came back to their beloved
country from those foreign lands and at some point before they were
finally put into Mother Earth an American flag was put on that casket.
There is not a one of us in this Chamber who has not had the privilege
to go to those services. There is not a one of us whose throat hasn't
swelled or whose eyes haven't welled up when that takes place.
So, Mr. President, that flag symbolizes the everlasting--I repeat
everlasting--gratitude of the citizens of this great Nation for that
giving of a life in the cause of freedom. I could do no less than
proudly stand here and vote ``aye'' for this amendment, as I shall do.
Mr. President, I yield the floor.
The PRESIDING OFFICER. The Senator from South Dakota.
Mr. THUNE. Mr. President, I rise today as well to voice my strong
support for a constitutional amendment that would allow Congress to
prohibit the desecration of the American flag.
Some of the opponents have spoken today about how important it is
that we not use this opportunity to amend the Constitution. The Senator
from Illinois referred to the constitutional language, the
constitutional sacred language, and question how we could alter what
Thomas Jefferson and our Founding Fathers wrote.
I simply point out that in the last 20 years, our colleagues on the
other side have on over 100 occasions introduced constitutional
amendments. In fact, there was one by the Senator from Illinois a few
years back that would abolish the electoral college.
So the question isn't whether we amend the Constitution for this
purpose. It seems to me at least the question that has been raised
about the Constitution comes down to one's preference for which
amendments are in order and which are not.
I have to say that I think an amendment to protect the American flag
is in order, not just because it shares a majority and a strong
bipartisan support in the Senate but because many of the people who
were just alluded to by the Senator from Virginia who have fought and
died on behalf of that flag want to see this flag honored.
Look at the veterans organizations in this country--the American
Legion, the Veterans of Foreign Wars. Veterans organizations are very
much in favor of this amendment. In fact, it has been one of their top
priorities. The American Legion for some time now has been trying to
get an amendment to the Constitution that would allow Congress to enact
laws that would protect the American flag.
As a member of the Veterans Affairs Committee, I heard from many
veterans on this issue who understandably feel strongly about this flag
and rightly view desecration of the flag as an afront.
Many of our veterans have stood in harm's way around the world to
protect everything our flag represents. That is why it is a unifying
symbol that deserves to be protected from desecration.
The proposed amendment is simple. It says:
The Congress shall have power to prohibit the physical
desecration of the flag of the United States.
It does not amend the first amendment. It simply authorizes Congress
to pass a law to protect the flag from desecration.
This amendment, as I said earlier, has overwhelming bipartisan
support. Members on both sides of the aisle feel strongly that this
flag should be protected.
Our flag is intertwined with some of the most memorable scene's from
our Nation's history. It was raised at Mt. Suribachi during the battle
for Iwo Jima, and draped over the side of the stricken Pentagon on
September 11. It is what Olympic gold medalists are honored with. It
brings comfort to the wife of a fallen soldier. Young schoolchildren
pledge their allegiance to our flag. Above all, it symbolizes the
freedoms we hold dear, and I believe it should be protected from
falling victim when those freedoms are exploited.
Since the birth of our Nation, American soldiers have fought for the
ideals our flag represents and look to it for direction and promise on
bloody battlefields. The effort we are making here is not something of
small consequence. It is an opportunity to debate an issue of critical
importance to the American people and to allow the voice of the people
to be heard on this critical issue.
I am not a lawyer and most Americans are not lawyers, yet the vast
majority of Americans know instinctively that the American flag is
something that needs to be protected from desecration. However, right
now five unelected lawyers on the Court have decided that desecration
of the flag deserves the protection of the first amendment. Five
unelected Justices on the Supreme Court decided that Federal and State
laws prohibiting flag desecration were unconstitutional. Many of these
statutes had stood for generations before these Justices determined
that these statutes were unconstitutional.
In fact, four Justices on the Supreme Court completely disagreed with
the majority opinion in the flag-burning cases. In fact, Justice
Stevens, perhaps one of the most liberal Justices on the Court, wrote a
dissenting opinion saying that desecrating the flag is offensive
conduct, not speech that deserves protection.
Our Constitution does not belong to the courts. It belongs to the
people. And when the courts get it wrong, it is appropriate the people
have an opportunity to correct it. In this case, I believe the opinion
of the four Justices ought to be the majority opinion, as do the vast
majority of the American people. If two-thirds of the Senate, two-
thirds of the House of Representatives,
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and three-fourths of the State legislatures also believe it should be
the majority opinion, then that is a constitutional basis for making it
a majority opinion.
The notion that flag desecration is a nonexistent problem is also not
factual. As Senator Hatch has noted earlier, there have been several
incidents of flag desecration just in the last year, and these are the
occasions that were published in the media. They are the ones that we
know about.
The House of Representatives has passed this amendment with the
required two-thirds majority in each of the past five Congresses, but
it has always been bottled up here in the Senate. The Senate last voted
on this amendment in the year 2000 when it drew 63 votes. That is a lot
of votes, but it is still 4 votes short of the 67 that are needed to
pass. This time around, it appears that we are very close to passing
this amendment.
Mr. President, I hope my colleagues who are listening to this debate
will ultimately come down in favor of supporting what is a very simple,
straightforward approach which simply says that Congress shall have the
power to prohibit the physical desecration of the flag of the United
States. It puts the power in the hands of the Congress--the elected
representatives of the people of this country--and the people who
ultimately will have the opportunity in the 38 States if this thing is
approved here today, with the 67 votes that are necessary to vote on
its passage.
So I stand proudly today in support of those veteran organizations
who have spoken loudly on this issue--those who have sacrificed and who
believe that the American flag is not just ink and cloth, but is a
symbol of our freedom, a symbol of our democracy, and it is something
that the majority of Americans and those who have served this country
and fought to protect it deserve to have protected.
Mr. President, I yield the remainder of my time.
Mr. DURBIN. Mr. President, how much time is remaining?
The PRESIDING OFFICER. The Democrats have 35 minutes remaining.
Mr. DURBIN. And the other side?
The PRESIDING OFFICER. The other side has 9 minutes.
Mr. DURBIN. I yield 15 minutes to the Senator from West Virginia.
Mr. BYRD. Mr. President, I thank my distinguished friend from
Illinois.
We are here today, once again, to debate the wisdom of amending the
United States Constitution, to outlaw the desecration of the American
flag. As I have stated repeatedly and sincerely over the years, there
are few acts more deeply offensive to any of us than the willful
destruction of that American flag which stands there beside the
President's desk.
The flag is a symbol of our Republic. It is a unique symbol of
national unity and a powerful source of America's pride. I love the
flag. We all love the flag and all that it represents. We revere the
flag because it is a symbol of the liberties that we enjoy as American
citizens. These are liberties that are protected by the Constitution of
the United States and the Bill of Rights. The Constitution is the
instrument that provides for what that flag represents.
Now, let me say that again. This Constitution that I hold in my hand
is the instrument--there it is--that provides for what that flag
represents. It is the Constitution that has been and continues to be
the source--the source--of our freedom. We celebrate our freedom every
time we pledge allegiance to the flag, every day that this Chamber
comes to order and conducts a session. So we pledge allegiance to that
flag and to the Republic--not to the democracy but to the Republic--for
which it stands; one Nation, one Nation under God--yes, under God--
indivisible, with liberty and justice for all. Think of that. Listen to
that. One Nation under God, indivisible, with liberty and justice for
all.
Seven years ago, in contemplation of a similar moment when the Senate
was confronted with a constitutional amendment banning flag
desecration, I spent long hours contemplating both the legal bases and
the need for such an amendment. I said at that time, and I say again
today, that I know of few subjects that have come before the Senate
which have caused me greater anguish and consternation. I knew 7 years
ago, and I know today, that many West Virginians, many of my
colleagues, many of the people I represent support this amendment. But
based on my continued examination of the matter, I believe that I must
remain--and I shall remain--opposed to that amendment.
I oppose it not because I do not love the flag because I do love the
flag. I oppose it not because I fail to respect the sacrifices made by
our veterans, our law enforcement officials, and our first responders
who, for the benefit of all Americans, have given their lives and who
have offered their lives in defense of our country and our flag because
I do. Instead, I oppose it because while I agree that desecration of
the flag is abhorrent, repugnant, I believe that amending the
Constitution to prohibit flag desecration flies in the face--the very
face--of first amendment rights like freedom of speech. Men and women
have died to protect that freedom of speech, that freedom to express
ourselves.
Flag desecration remains a rare and isolated event in this large
country of ours. The vast majority, the overwhelming majority of
Americans respect the flag and they fly it with pride. They do not
abuse it.
The Senate Judiciary Committee has not held one hearing on this
proposal. Let me say that again. The Senate Judiciary Committee has not
held one hearing on this proposal. It is especially troubling to me
that the Senate would seek to amend the Constitution--yes, this
Constitution that I hold in my hand--and the first amendment--without
holding even a single hearing on the need for this amendment.
Now, I know that some who favor this amendment believe that the
burning of the flag is sufficient to justify the adoption of this
extraordinary--I say extraordinary--legislative remedy. And I, too,
cringe, I shrink from, and I condemn any desecration of the flag. But I
do not agree that it is necessary to amend the basic document, the
basic organic document, the Constitution, to prohibit it.
Furthermore, this constitutional amendment provides no actual
punishment of those who desecrate the flag. Plus, if protection of the
flag is a pressing concern--and I acknowledge that to many people it
is--why do the backers of the constitutional amendment not support
pending legislation, of which I am a cosponsor, which could be enacted
to prohibit desecration of the flag more quickly? As we all know, a
constitutional amendment requires ratification by three-fourths--three-
fourths--of all 50 States, which could take up to 7 years, and it is
likely that additional legislation to enforce the enactment would have
to be enacted after that.
I also would not support this constitutional amendment because it
continues to be my heartfelt belief--and I wish I were mistaken--that
the primary effect of the amendment will be to create more, rather than
fewer, incidents of flag desecration, flag destruction. Zealous
defenders of the first amendment who are offended, rightly or wrongly,
by the passage of this amendment will surely cast themselves in a new
role; namely, as provocateurs who, newly inspired, will deliberately
seek to test the boundaries established by this proposed amendment if
it is adopted.
This is more than a matter of symbolism; this is a question of
respect, respect for the founding document of the Republic--oh, how
precious it is, this founding document, the Constitution of the United
States, the supreme law--the supreme law of the land. Any disrespect
for the Constitution is a repudiation of the basic principles and laws
of our country. I do not relish giving a tiny minority of troublemakers
the ammunition to denigrate--yes, denigrate not only the flag but also
the Constitution of the United States.
As I have stated repeatedly, this does not mean that I believe
destruction of the flag is trivial or that encouraging reverence for
the flag is not an important goal of our government. I simply do not
believe that sporadic instances of flag burning should result in our
advocating the course of amending the Constitution, amending the basic
organic document on which this Republic was built and on which it
stands, as a remedy. As I have recounted in prior speeches on this
subject, the Constitutional Convention in 1787 debated in
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much depth whether there should be any--whether there should be any--
provision for amending the Constitution. Recognizing, however, that
occasional revisions might be necessary--and thank God they recognized
that occasional revisions might be necessary--the Convention finally
agreed upon a compromise that deliberately made it difficult to amend
the Constitution by requiring successive supermajorities. To that end,
article V of the Constitution sets up a cumbersome troublesome, two-
step process to amend the Constitution.
The first step is approval either by two-thirds of Congress, or--and
this has never been done--by a convention called for by two-thirds of
the States. The second step is ratification by three-fourths of the
States.
So given the hurdles that were deliberately and knowingly and
intentionally established by article V, it is no surprise that so few
amendments to the Constitution have been approved. There are 27
amendments in all that have been approved, and the first 10 of the 27
were ratified en bloc in 1791. Those 10 constitute our Bill of Rights.
Think of it: In the 216 years that have subsequently ensued, there
have been just 17 additional amendments. If we disregard the 18th and
the 21st amendments, marking the beginning and end of Prohibition, then
we are left with only 15 amendments in 216 years. Get that. Only 15
amendments in 216 years. As I have advised my colleagues before, and as
they well know, these 15 amendments can generally be divided into two
roughly equal categories. One category consists of those amendments
that deal with the structure--the structure and the organization of the
three branches of Government--the legislative, the executive, and the
judiciary.
These include the 11th amendment, preventing the Federal courts from
hearing suits against States by citizens of other States; the 12th
amendment, regarding the election of the President and Vice President;
the 17th amendment, establishing the direct election of Senators; the
20th amendment, regulating Presidential terms and related matters; the
22nd amendment, limiting the President to two terms; the 25th
amendment, regarding Presidential succession; and the 27th amendment,
deferring congressional pay raises until after an intervening election.
There is little need to justify the inclusion of these provisions in
the Constitution; however we may feel about them personally, their
subject matter--namely the structure of the Federal Government--fits
perfec1y within that of Articles I through IV.
The second category of constitutional amendments consists of those
that narrow the powers of government and expand or protect fundamental
personal rights. These include the 13th amendment, banning slavery; the
14th amendment, which extended citizenship to all persons ``born or
naturalized in the United States, and subject to the jurisdiction
thereof'' and guaranteed all citizens certain basic protections; and
the 15th, 19th, 23rd, 24th and 26th amendments, each of which extended
the vote to new groups of citizens.
Clearly, the flag desecration amendment goes in a new direction. For
constitutional purposes, as I have said before in these debates, it is
neither fish nor fowl. It does not address a structural concern; it
does not deal with Federal relations between the national and State
governments; it extends, rather than narrows, the powers of government
and it is antithetical to the whole thrust of the Constitution; and it
does not protect a basic civil right. Indeed, many opponents of the
amendment argue that it restricts personal liberty, namely the right of
freedom of expression.
The l3th amendment forbidding slavery may be viewed as the only other
amendment regulating the conduct of individuals. The 13th amendment was
the product of a bitter, fiercely contested civil war, and it was
necessary to end one of the most loathsome and shameful institutions in
our Nation's history. This was an exceptional amendment necessitated by
exceptional circumstances.
I have introduced a resolution in support of a constitutional
amendment protecting voluntary prayer in school. This is also an
exceptional amendment required by exceptional circumstances. Although
the Supreme Court has never expressly prohibited children from
voluntarily praying in school, children are discouraged from praying in
school. School administrators are loathe to address the issue for fear
they will be assailed, wrongly, for having broken the law. Confusion
regarding the legal posture of voluntary prayer in school has created
an impermissible, exceptional circumstance which, I believe, must be
addressed in a way that permits school children to pray voluntarily as
they deem appropriate. Consequently, I have proposed this year, as I
have numerous times over the past 40 years, a constitutional amendment
that simply clarifies that the first amendment neither requires nor
prohibits voluntary prayer in school. This amendment would address the
exceptional circumstances that afflict thousands of school children,
nationwide, who mistakenly believe that prayer should not be a part of
their daily lives at school.
In the final analysis, it is the Constitution that is the foundation
and guarantor of the people's liberties, protecting their rights to
freedom of speech and to worship as they please. The flag represents
all of the cherished liberties which we as Americans enjoy--liberties
explicitly protected by the text of the U.S. Constitution and the Bill
of Rights. The flag is a symbol of all that we hold near and dear, and
of our Nation's history. It is also a symbol of our Constitutional
values. The flag lives only because the Constitution lives. Yet, as I
have said in past debates on this issue, the Constitution, unlike the
flag, is not a symbol; it is the thing itself. I think it might be well
if, in addition to focusing on efforts to protect the flag against
injury, injury which, though reprehensible, does not damage
Constitutional principles, we make a greater commitment to learning the
historical context of our flag as well as the actual text and meaning
of the United States Constitution.
I do not believe that Americans can participate meaningfully in their
government if they do not know the legal foundation and principles upon
which it is based. I believe that greater familiarity with the
provisions of the Constitution would give all Americans not only an
enhanced appreciation of the flag as being a symbol of the liberties
that are enshrined in the Constitution and the Bill of Rights, but also
a literal understanding of our Government's checks and balances, their
purposes, and of the duties of each of our three branches of Government
to protect our personal freedoms.
Finally, Old Glory lives because the Constitution lives, without
which there would be no American Republic, there would be no American
liberty, and there would be no American flag. We love that flag. But we
must love the guarantees of the Constitution more. For the Constitution
is not just a symbol; it is, as I say, the thing itself.
The PRESIDING OFFICER (Mr. Alexander). The Senator from Illinois.
Mr. DURBIN. How much time is remaining on this side?
The PRESIDING OFFICER. The majority has 9 minutes; there remains
15\1/2\ minutes on the Democratic side.
Mr. DURBIN. I yield 5 minutes, at this time, to the Senator from
Massachusetts.
The PRESIDING OFFICER. The Senator from Massachusetts is recognized.
Mr. KENNEDY. Will the Chair let me know when there is 30 seconds
left, please?
The PRESIDING OFFICER. I will do that.
Mr. DURBIN. If the Senator will withhold for a moment?
Mr. KENNEDY. Yes.
Amendment No. 4543
Mr. DURBIN. I have an amendment at the desk. I call up amendment
4543.
The PRESIDING OFFICER. The clerk will report.
The assistant legislative clerk read as follows:
The Senator from Illinois [Mr. Durbin], for himself, Mrs.
Clinton, Mr. Bennett, and Mr. Bingaman, proposes an amendment
numbered 4543.
Mr. DURBIN. I ask unanimous consent that the reading of the amendment
be dispensed with.
The PRESIDING OFFICER. Without objection, it is so ordered.
The amendment is as follows:
(Purpose: To provide a complete substitute)
On page 2, line 2, strike ``(two'' and all that follows and
insert the following:
SECTION 1. FLAG PROTECTION.
(a) Short Title.--This section may be cited as the ``Flag
Protection Act of 2006''.
[[Page S6537]]
(b) Findings and Purpose.--
(1) Findings.--Congress finds that--
(A) the flag of the United States is a unique symbol of
national unity and represents the values of liberty, justice,
and equality that make this Nation an example of freedom
unmatched throughout the world;
(B) the Bill of Rights is a guarantee of those freedoms and
should not be amended in a manner that could be interpreted
to restrict freedom, a course that is regularly resorted to
by authoritarian governments which fear freedom and not by
free and democratic nations;
(C) abuse of the flag of the United States causes more than
pain and distress to the overwhelming majority of the
American people and may amount to fighting words or a direct
threat to the physical and emotional well-being of
individuals at whom the threat is targeted; and
(D) destruction of the flag of the United States can be
intended to incite a violent response rather than make a
political statement and such conduct is outside the
protections afforded by the first amendment to the
Constitution.
(2) Purpose.--The purpose of this section is to provide the
maximum protection against the use of the flag of the United
States to promote violence while respecting the liberties
that it symbolizes.
(c) Protection of the Flag of the United States Against Use
for Promoting Violence.--
(1) In general.--Section 700 of title 18, United States
Code, is amended to read as follows:
``Sec. 700. Incitement; damage or destruction of property
involving the flag of the United States
``(a) Definition of Flag of the United States.--In this
section, the term `flag of the United States' means any flag
of the United States, or any part thereof, made of any
substance, in any size, in a form that is commonly displayed
as a flag and that would be taken to be a flag by the
reasonable observer.
``(b) Actions Promoting Violence.--Any person who destroys
or damages a flag of the United States with the primary
purpose and intent to incite or produce imminent violence or
a breach of the peace, and under circumstances in which the
person knows that it is reasonably likely to produce imminent
violence or a breach of the peace, shall be fined not more
than $100,000, imprisoned not more than 1 year, or both.
``(c) Flag Burning.--Any person who shall intentionally
threaten or intimidate any person or group of persons by
burning, or causing to be burned, a flag of the United States
shall be fined not more than $100,000, imprisoned for not
more than 1 year, or both.
``(d) Damaging a Flag Belonging to the United States.--Any
person who steals or knowingly converts to his or her use, or
to the use of another, a flag of the United States belonging
to the United States, and who intentionally destroys or
damages that flag, shall be fined not more than $250,000,
imprisoned not more than 2 years, or both.
``(e) Damaging a Flag of Another on Federal Land.--Any
person who, within any lands reserved for the use of the
United States, or under the exclusive or concurrent
jurisdiction of the United States, steals or knowingly
converts to his or her use, or to the use of another, a flag
of the United States belonging to another person, and who
intentionally destroys or damages that flag, shall be fined
not more than $250,000, imprisoned not more than 2 years, or
both.
``(f) Construction.--Nothing in this section shall be
construed to indicate an intent on the part of Congress to
deprive any State, territory, or possession of the United
States, or the Commonwealth of Puerto Rico of jurisdiction
over any offense over which it would have jurisdiction in the
absence of this section.''.
(2) Technical and conforming amendment.--The chapter
analysis for chapter 33 of title 18, United States Code, is
amended by striking the item relating to section 700 and
inserting the following:
``700. Incitement; damage or destruction of property involving the flag
of the United States.''.
(d) Severability.--If any provision of this section, or the
application of such a provision to any person or
circumstance, is held to be unconstitutional, the remainder
of the section, and the application of this section to any
other person or circumstance, shall not be affected by such
holding.
SEC. 2. RESPECT FOR THE FUNERALS OF FALLEN HEROES.
(a) Short Title.--This section may be cited as the
``Respect for the Funerals of Fallen Heroes Act of 2006''.
(b) In General.--Section 1387 of title 18, United States
Code, is amended to read as follows:
``Sec. 1387. Prohibition on demonstrations at funerals of
members or former members of the Armed Forces
``(a) In General.--It shall be unlawful for any person to
engage in a demonstration during the period beginning 60
minutes before and ending 60 minutes after the funeral of a
member or former member of the Armed Forces, any part of
which demonstration--
``(1)(A) takes place within the boundaries of the location
of such funeral and such location is not a cemetery under the
control of the National Cemetery Administration or part of
Arlington National Cemetery; or
``(B) takes place on the property of a cemetery under the
control of the National Cemetery Administration or on the
property of Arlington National Cemetery and the demonstration
has not been approved by the cemetery superintendent or the
director of the property on which the cemetery is located;
``(2)(A) takes place within 150 feet of the point of the
intersection between--
``(i) the boundary of the location of such funeral; and
``(ii) a road, pathway, or other route of ingress to or
egress from the location of such funeral; and
``(B) includes, as part of such demonstration, any
individual willfully making or assisting in the making of any
noise or diversion that disturbs or tends to disturb the
peace or good order of the funeral of a member or former
member of the Armed Forces; or
``(3) is within 300 feet of the boundary of the location of
such funeral and impedes the access to or egress from such
location.
``(b) Penalty.--Any person who violates subsection (a)
shall be fined under this title, imprisoned for not more than
1 year, or both.
``(c) Definitions.--In this section:
``(1) The term `Armed Forces' has the meaning given the
term in section 101 of title 10.
``(2) The term `funeral of a member or former member of the
Armed Forces' means any ceremony, procession, or memorial
service held in connection with the burial or cremation of a
member or former member of the Armed Forces.
``(3) The term `demonstration' includes--
``(A) any picketing or similar conduct;
``(B) any oration, speech, use of sound amplification
equipment or device, or similar conduct that is not part of a
funeral, memorial service, or ceremony;
``(C) the display of any placard, banner, flag, or similar
device, unless such a display is part of a funeral, memorial
service, or ceremony; and
``(D) the distribution of any handbill, pamphlet, leaflet,
or other written or printed matter other than a program
distributed as part of a funeral, memorial service, or
ceremony.
``(4) The term `boundary of the location', with respect to
a funeral of a member or former member of the Armed Forces,
means--
``(A) in the case of a funeral of a member or former member
of the Armed Forces that is held at a cemetery, the property
line of the cemetery;
``(B) in the case of a funeral of a member or former member
of the Armed Forces that is held at a mortuary, the property
line of the mortuary;
``(C) in the case of a funeral of a member or former member
of the Armed Forces that is held at a house of worship, the
property line of the house of worship; and
``(D) in the case of a funeral of a member or former member
of the Armed Forces that is held at any other kind of
location, the reasonable property line of that location.''.
(c) Clerical Amendment.--The table of sections at the
beginning of chapter 67 of such title is amended by striking
the item relating to section 1387 and inserting the following
new item:
``1387. Prohibition on demonstrations at funerals of members or former
members of the Armed Forces.''.
The PRESIDING OFFICER. The Senator from Massachusetts.
Mr. KENNEDY. Mr. President, the Bill of Rights is our Nation's
greatest accomplishment. It has been our great fortress against the
passions and politics of every era. It has been our great beacon to the
rest of the world, demonstrating that we value our liberty more deeply
than power or riches. And it is fitting that such a document, which
describes the rights inherent to a free people, has not been amended--
not once--in its entire 217 years.
The Founders knew that the first amendment of the Bill of Rights
would allow all manner of speech, including some speech that was
contemptible. They were no strangers to fiery rhetoric. Most of them
began their public lives not only by making speeches but by engaging in
other expressive conduct, such as hanging King George's tax collectors
in effigy and dumping tea into Boston Harbor. The breadth of the first
amendment is not an accident; it is an essential part of the Founders'
design.
For the 217 years that followed the adoption of the Bill of Rights,
we have managed to preserve every word. Every generation of leaders--
until today--considered the Bill of Rights to be sacred and recognized
that they could not claim to be protecting our freedoms by curtailing
them. And the past 217 years have proved that we can survive civil wars
and world wars, fascism, communism, economic collapse and all manner of
civil strife--all without diluting the Bill of Rights.
So why are we addressing flag burning? I completely agree that flag
burning is a contemptible and malicious act, calculated to outrage
rather than persuade. But flag burning occurs infrequently and can
usually be punished
[[Page S6538]]
under existing laws. We are being asked to undermine the foundation of
our democracy in order to squash a gnat.
We might be forgiven for focusing on this small problem if we were
not inundated with great ones.
If the Senate wants to improve our Nation, why don't we turn today to
legislation that would reduce the vast numbers of children who go to
bed hungry each night?
If the Senate wants to prevent despicable behavior, why don't we hold
comprehensive hearings on the billions of tax dollars that have been
stolen and squandered by companies hired to rebuild Iraq?
If the Senate wants to keep faith with our veterans, why don't we
leave the Constitution alone and work to improve our VA hospitals?
The inescapable answer is that our Republican leaders' priorities are
being driven by election year politics. But this is even more than a
case of misplaced priorities. It is playing politics with our most
fundamental freedom. Doing so opens up a Pandora's box, and if our
cherished Bill of Rights is further diluted by future generations, that
loss of liberty will trace its heritage to this Senate.
Let me end with the words of our national anthem, the ``Star Spangled
Banner''. As every schoolchild knows, the first stanza ends with these
words:
O say does that star spangled banner yet wave
O'er the land of the free and the home of the brave?
This amendment may protect our star spangled banner, but that flag
will wave over a land that is a little less free and a little less
brave. I urge this Senate to find the courage to leave the Bill of
Rights intact.
I yield the remainder of my time.
Mr. DURBIN. How much time do we have?
The PRESIDING OFFICER. The Senator has 11 minutes.
Mr. DURBIN. I ask unanimous consent that we extend the time for
debate 5 minutes on each side.
The PRESIDING OFFICER. Is there objection? Without objection, it is
so ordered.
Mr. DURBIN. Mr. President, I would like to recognize the Senator from
New York for 5 minutes.
The PRESIDING OFFICER. The Senator from New York is recognized.
Mrs. CLINTON. Mr. President, I am proud to stand here today and speak
out for protecting the American flag and the Constitution, of which our
flag is a revered and honored symbol. Whenever I see the flag of our
country, I am reminded of how fortunate I am to have been born an
American, born into a country that, at her best, nurtures our strengths
and gives each of us the freedom to express our ideas, display our
talents, and become the best we can be, to live up to our God-given
potential.
That is what the flag means to me. It represents the best of us--our
ideals, our sense of duty and sacrifice: the American spirit. Those
values transcend party, ethnicity, age, race, gender. Indeed, those
values transcend even nationality. Around the world, our flag is a
symbol of hope and freedom.
I understand the outrage that is expressed today by my colleagues,
and I agree wholeheartedly that maliciously burning or destroying an
American flag is a deeply offensive and despicable act. It disrespects
our Nation. It belittles the sacrifices of our brave veterans. It even
sends a message to the soldiers who fight today protecting our freedom
that their service is in some way to be disrespected and discounted.
I have met with many veterans over the last many years, and I have
heard the sense of betrayal that comes from those who risked their
lives under that flag to protect our freedoms. That is why I support
Federal legislation like the Durbin-Bennett amendment. When we think of
all the flag symbolizes, I urge that we consider the very freedom and
liberty the flag embodies. It is, in effect, a visual symbol of our
Constitution and particularly our Bill of Rights. Our Founding Fathers
were keenly aware that if the Constitution was to remain the
cornerstone of our Government and laws, then changing it should be
difficult. That is the system they set up.
The infrequency of amendments in our long history is telling.
Constitutional amendments have historically met two sets of objectives.
The first deals with the structure of our Government and the
relationship between the executive, legislative, and judiciary
branches--our system of checks and balances. The second protects
fundamental rights, including the 13th amendment that bans slavery and
the 15th, 19th, 23rd, 24th, and 26th amendments, all of which expanded
the right to vote.
The amendment we debate today meets neither of these compelling
objectives. The Constitution to which we all have sworn an oath is
about protecting our rights. I believe we do that by honoring the
Constitution, which has never been amended to deny or limit the Bill of
Rights. I don't think we should start doing that today.
Fortunately, we have an opportunity to protect our flag in a
bipartisan and constitutional way. Senator Durbin's amendment, the Flag
Protection Act of 2006, which I am cosponsoring, would among other
things prohibit people from destroying a flag with the intent of
inciting imminent violence, threatening someone by burning a flag,
damaging a flag owned by the United States and damaging a flag that
belongs to another while on Federal land.
I believe, as do many legal scholars, this legislation will stand up
to constitutional scrutiny. It is different from previous bills that
have been voted on in this Chamber before.
It adds a new provision that follows Supreme Court precedent, from
the case Virginia v. Black decided in 2003. In that case, the Supreme
Court held that the Government may prohibit people from burning crosses
with the intent to intimidate. That should be a pretty straightforward
proposition, but it was called into question. So the case made its way
to the Supreme Court. The Court concluded that laws may, in fact, ban
cross burnings meant to intimidate ``because burning a cross is a
particularly virulent form of intimidation.''
Burning a flag, to me, is also despicable, and I believe that there
is no denying that when we talk about our flag, Americans' emotions run
deep. We know when we look at a flag that is deliberately, maliciously
destroyed, that is an intimidating experience in many instances.
I agree that this burning, this desecration that can happen to our
flag, is something that people have a right to ask this body to try to
prohibit and prevent.
I hope we can pass a law that criminalizes flag burning and
desecration that is constitutional and can survive Supreme Court
scrutiny.
I appreciate all the New Yorkers, especially the veterans whom I
represent, many of whom have come to see me here and in my State. They
expressed feelings both pro and con. I assure them that I will join
with my colleagues to stand up for their needs and to stand up for the
needs of those young men and women wearing the uniform today.
For those reasons, I am a proud cosponsor of Senator Durbin's
amendment, and I hope that we can come together and pass a
constitutional law that protects our flag and reaffirms our commitment
to our Nation's Constitution.
I yield the floor.
The PRESIDING OFFICER. Who yields time?
Mr. HATCH. Mr. President, I yield 2 minutes to the distinguished
Senator from Idaho.
The PRESIDING OFFICER. The Senator from Idaho is recognized.
Mr. CRAIG. Mr. President, it is an honor and a privilege to stand
with my fellow cosponsors in support of S.J. Res. 12, an amendment
designed not merely to protect the physical integrity of the American
flag but the very heart of our democratic republic. From 1776 to today,
from the Marines who fought their way to plant the flag at the top of
Iwo Jima to the firefighters who lifted the flag above the ruins of the
World Trade Center, it is clear that ``Old Glory'' represents so much
more than a nation. In truth, the American flag represents thousands of
years of struggle in human history to achieve political liberty,
religious autonomy, and freedom from want. More important, our flag
represents the inspiration of the life of our Nation and what humanity
has the potential to accomplish.
Throughout our Nation's history, the American flag has enjoyed the
protection not only of its people but its laws.
[[Page S6539]]
Unfortunately, this safeguard was eroded in 1989 by the Supreme Court
decision in Texas vs. Johnson. This decision, which many of my
colleagues and I agree was misguided, found within the Constitution a
right that had never before existed: the right to physically assault
the flag under the First Amendment. Since then, Members of Congress
have been faced with reconciling the tension between ``free speech''
and the symbolic importance of the American flag. Many have argued that
this tension exists between matters of fact and matters of the heart.
But in my view, protecting our flag is a matter of both.
Whether we choose to acknowledge them or not, acts of violence or
desecration towards our flag have become a grave reality in our
country. Since the Texas decision in 1989, there have been more than
120 reported cases of flag degradation across the United States, and
this number reflects only those events that were publicized by the
media. Even with that reality in mind, we must remember that the point
is not how often the flag has been burned, defaced, trampled, or torn
or even those responsible for such heinous acts. Rather, the point has
to do with our response--especially our official response--to
those events. As citizens, we can no longer allow flag burning to be
considered a ``norm'' in our society. Although we can do nothing when
terrorists or those with anti-American sentiments defile our flag
abroad, we owe it to our brave service men and women, to ourselves, and
to our children to do something when it happens on our own soil.
Prior to the Texas decision, 48 out of our 50 States had statutes
prohibiting flag desecration on the books. And since 1989, support for
protecting our flag has only increased. Today, as the distinguished
Majority Leader, Senator Frist, has said, an overwhelming 80 percent of
the American public and all 50 State legislatures agree that the
Constitution should allow States and the Federal Government to protect
the flag. This is exactly what this resolution was designed to do. The
amendment does not prohibit flag desecration itself, but will give
Congress and democratically elected State legislatures the opportunity
to deliberate and ultimately decide how they will guard the United
States flag.
It is important to note that the amendment process is not something
that we as citizens or Congressmen should take lightly. However, when
we look back in history, it is clear that constitutional amendments
have only taken effect when both citizens and legislators have joined
together to demand change, after prolonged periods of social unrest. As
we look forward to our Nation's birthday next week, it is clear that
now is the time to put an end to this political dissension and embrace
the freedom and the responsibility we inherited from our forefathers.
The amendment process is a fundamental provision of the Constitution,
and by making use of it, we not only reaffirm its foundation, but we
reveal the virtue embedded in democracy.
Ultimately, we must remember that democracy, from 2500 years ago when
originally articulated by philosophers like Aristotle, to more modern
discussions about democratic nation-building in the Middle East, has
always encompassed much more than a structural or institutional
framework for government. Although elements such as free elections,
dispersed power, basic human freedoms, equality, and an involved
citizenry are important in thinking about democratic governments, the
idea itself revolves around a vision. That vision acknowledges human
beings are capable of securing their liberty but also establishing a
free, prosperous, and ultimately, unified society. It is a vision that
has inspired people everywhere, but especially Americans, with hope,
optimism, and an unwavering sense of loyalty. Such a vision is best
expressed in the waving stars and stripes of Old Glory.
We often warn our children ``If you can't stand for something, you'll
fall for anything.'' Today, it is my hope that we will come together
and agree that there is nothing we would rather stand up for than the
American flag.
Let me speak specifically to a provision--the Durbin amendment--that
should be troubling to all of us.
Just this past month, this body voted unanimously to support, and the
President has just signed, an act called the Respect for America's
Fallen Heroes Act.
The legislation that was authorized and moved out of the Veterans'
Affairs Committee speaks to those who choose to demonstrate during
periods in the ceremony at a cemetery in the burial of one of our
fallen heroes.
This body rightfully protected those families and those mourners in
certain demonstrations at the VA's 223 national cemeteries and at
Arlington National Cemetery. We differed a little with the House, and
the reason we differed with the House is quite clear. There were two
constitutional reasons for differing with the House.
The first amendment right to assemble peacefully was one of those,
and the second one was a federalism principle that I think the Senator
from Illinois walks all over--that recognizes we only have the right to
shape those activities on Federal property.
The Durbin amendment fails miserably to adhere to the federalism
principles--the very principle that drove my amendment to the House-
passed version of the Fallen Heroes Act. Therefore, I am here today to
urge my colleagues to oppose the Durbin amendment on two grounds.
First of all, the courts have said we can't legislate as it relates
to flag burning; secondly, we ought not be telling States what to do as
it relates to private cemeteries or State cemeteries. I think that is
very clear.
I said at the time we voted on the Fallen Heroes Act that I would ask
that federalism be protected.
I must say in conclusion that there is no commerce nexus in what the
Senator from Illinois is attempting to do. This clearly is a federalism
argument. It is a State and local responsibility to protect that which
the Senator from Illinois is asking us to protect.
We have already acted in defense of our fallen heroes on Federal
property, as we should rightfully have done.
Mr. HATCH. Mr. President, I yield 2 minutes to the Senator from
Georgia.
The PRESIDING OFFICER. The Senator from Georgia is recognized for 2
minutes.
Mr. CHAMBLISS. Mr. President, we are in the midst of a debate that,
frankly, I think we ought to have, and I am proud to be a cosponsor of
this resolution. I share the view of the majority of Georgians that the
American flag symbolizes the strong values that our country stands
for--freedom, liberty and representative democracy. And most
importantly, our American flag represents the generations of men and
women who have fought and died defending those values. I have the
privilege of representing a proud military state, and nothing makes me
more proud when traveling around Georgia than to stand with the folks I
represent, face our flag--place my hand over my heart--and recite the
Pledge of Allegiance.
The flag represents our way of life. It hangs in our classrooms, over
our police stations, fire stations, and courthouses. It flies above
this historic Capitol. It was borne by troops in battle to protect our
liberties and has covered the caskets of fallen soldiers, airmen, and
marines who made the ultimate sacrifice for us. It is an emotional
symbol to so many of us.
I have had the opportunity to travel around the world to represent my
state and my country--and the one symbol that everybody in and
particularly outside of America looks to when they think about America
is that great flag that we have lived under for all these many years.
And for anybody to think that they ought to be able to stomp on that
flag, or trample that flag or burn that flag or destroy that flag in
any way other than a professional way is simply wrong.
There are those who say we ought not ``change'' the Constitution.
Yet, for 200 years the legislative branch of our governmental had the
power under our Constitution to prohibit the desecration of the flag.
Only in 1989 and 1990 did a divided Supreme Court, for the first time
in our history, ``change'' the Constitution to say that Congress no
longer had that power. I believe the amendment process, provided for by
the Constitution itself, is the lawful means by which the American
people may restore common sense when the Supreme Court abandons it.
Let me take a moment to say that I understand that a substitute has
been
[[Page S6540]]
filed and that the substitute has in it language to prohibit protests
at military funerals. The language is basically the same language as
the bill that Senator Bayh and I introduced months ago.
I hope we can work together to get this bill passed as a stand-alone
bill. We need to ensure that families can bury their servicemembers in
the peace and dignity and respect they have earned.
I ask that a vote be made against the substitute and for the
underlying resolution.
The PRESIDING OFFICER. Who yields time?
Mr. HATCH. Mr. President, I reserve the remainder of my time.
Mr. DURBIN. Mr. President, I yield 3 minutes to the Senator from New
Jersey.
The PRESIDING OFFICER. The Senator from New Jersey is recognized.
Mr. LAUTENBERG. Mr. President, I stand here proud of my country,
proud of our liberties, proud of our flag. I went to Europe as a young
man during World War II--the first time I was out of the country--and
put on a uniform to defend the honor and freedoms that this country
represents.
Now we talk about flag desecration by the actions of a few who dare
burn our flag. It is a repulsive, ugly act. We never want to see it.
But do we take away their right to dissent and do we say America is a
country that can't stand dissent? No. One's patriotism may be another
person's desecration.
Here's a picture--I show this poster not at all to denigrate the
President of the United States, but that is the hand of the President
of the United States using a magic marker to write on this flag. He
never intended to be disrespectful; he loves this country. I differ
with him on policy, but is that desecration, I ask you?
I think this second poster is another example that represents
desecration. Here he is, Kid Rock, with his head through the flag. Is
that a desecration? It was such a desecration that he was invited to
perform in a concert at the Republican Convention, and they partied
with him. They loved him.
What constitutes desecration? A lapel pin? We worry about what we do
for our soldiers and say that we love the flag so much, but we won't
allow news photos of flag-draped coffins coming into Dover? Pictures of
those flags are banned?
What is going on here? This is politicking at its worst. We should
not violate the freedoms guaranteed by our Constitution and the Bill of
Rights. It is raw politics. It doesn't demonstrate patriotism. I invite
everybody to have the courage to vote against this amendment and show
their courage and not to be intimidated by wondering what this one will
think or wondering what that one will think.
We are invited here to think about the freedoms that our country
offers and our responsibility, and it is not only protecting the flag,
it is protecting our liberties. It is making sure that we protect our
veterans, that we give them the right kind of equipment, and that we
give them the resources they need. That, to me, is the kind of
patriotism that ought to be rewarded--not to say if you write in ink or
you tear the flag that we are going to amend the Constitution to get at
you. A half dozen or a dozen people have done that to offend everybody.
That should not let us be stampeded into amending our Constitution.
The PRESIDING OFFICER. Who yields time?
Mr. HATCH. Mr. President, I yield 2 minutes to the distinguished
Senator from South Carolina.
Mr. GRAHAM. Mr. President, whether it would ever be a crime to write
on the flag or wear it at a concert, who knows? This whole debate is
about restoring the power of elected officials to be able to manage
such events. The Supreme Court, in a 5-to-4 decision, took the power
away from everyone who is elected to have any say about the flag. This
happened in 1989.
We have lived here free, open, safe, and secure of being able to
regulate conduct toward disrespecting the flag for most of our life.
Only since 1989 and a 5-to-4 decision have we had this problem.
I stand here wanting every elected official to have the
constitutional power that we previously possessed before the 5-to-4
decision. And we will decide among ourselves what a good statute might
be or may not be. Everybody can go through that process and be
answerable to the people.
I do not believe it is a burden to place on our citizens at large not
to disrespect the flag. It is a burden we can bear as a people. If you
do not like me, there are a million ways you can show your displeasure
with my time in the Senate. But the fact is, I am an elected
representative. All I am asking citizens as a whole is that we have one
thing in common--that we are able to talk with each other and debate
issues without destroying the flag.
To me, that is a burden that we can bear. Freedom without
responsibility is chaos. So it doesn't bother me one bit to turn to my
worst enemy and say: This one thing is out of bounds. Have your say,
have your fun, do what you are going to do, speak as loudly as you want
to speak, but this is one thing I ask of you: please don't destroy the
flag.
To the few citizens who feel a need to do that, it doesn't bother me
one bit for them to be told no. That is what is wrong with our country
today. Nobody is afraid to tell anybody else no. I am not afraid at
all; to the few who want to destroy the flag, I am gladly willing to
tell you no. That doesn't make me any less free or you any less free.
Mr. DURBIN. Mr. President, I yield 3 minutes to the ranking member,
the distinguished Senator from Vermont.
The PRESIDING OFFICER. The Senator from Vermont is recognized.
Mr. LEAHY. Mr. President, I thank the distinguished Senator.
As we close this debate and move on to a vote on this proposal, I
commend to all Senators the words of the senior Senator from Hawaii, a
war hero and veteran, a patriot, an American of the first order. He was
long denied the Congressional Medal of Honor that he earned long ago
and paid for dearly. He knows why he fought and sacrificed. No one on
this floor has fought harder for this country, for its flag, for our
freedoms or for our veterans and their families. He has shown
characteristic leadership and courage in his statement today against
doing damage to our Constitution through this proposed amendment. I am
honored to stand with him in this fight to preserve our Bill of Rights.
I commend the other veterans, as well, Senators Lautenberg and Kerry. I
thank the Senators from West Virginia and Massachusetts for their
statements and the Senator from New York.
The action by the Republican leadership on this amendment reminds me
of the action they forced in connection with the Terri Schiavo case.
Then the President hurried back from a vacation with great fanfare to
sign a bill rushed through the Republican-led Congress to intrude into
a family and personal tragedy. The politicians overreached and the
American people saw through it. Here, too, this election-year exercise
will be seen for what it is.
This is the second constitutional amendment that the Senate has
considered this month in the Republican runup to the November election.
Of course, among the amendments the Republican majority has chosen not
to consider is the one promised by the 2000 Republican Party Platform,
to require a balanced budget. Even Republican partisans must be
embarrassed at the deficits that the Bush-Cheney administration and the
Republican Congress have generated as they turned an historic budget
surplus into an historic deficit.
This proposed amendment regarding flag desecration is another in a
series of amendments Republicans have pressed that would result in
restricting the rights of the American people. It is one of more than
65 constitutional amendments introduced so far in this Congress alone,
and more than 11,000 since the First Congress convened in 1789. Can you
imagine what the Constitution would look like if even a small fraction
of these amendments had been adopted? The Constitution that we now
revere as fundamental law, that provides us with unity and stability in
times of trouble, would be like the old French Constitution--filed
under ``p'' for ``periodicals.'' We honor our Senate oath when we
``support and defend'' the Constitution. That is what I will be doing
by voting today to uphold the Constitution and by voting against
amending it.
I am encouraged by the Senate's bipartisan rejection of action on
S.J.
[[Page S6541]]
Res.1, the proposal to federalize marriage by way of a constitutional
amendment. Forty-eight Senators voted against cloture, and I believe
that others who voted in favor of more debate were nonetheless troubled
by the proposal. The failure of the Republican leadership to obtain
even a simple majority of Senators to support their efforts, on a
procedural vote, should indicate to them how unwise it is to abuse the
Constitution in a partisan election-year tactic.
Like the marriage amendment, the flag amendment would artificially
create division among the American people. The timing of this
consideration, 4 months before the mid-term election, raises concerns,
again, that the Constitution is being misused for partisan purposes.
That is wrong.
We act here in the Senate as stewards of the Constitution, guardians
and trustees of a precious legacy. The truly precious part of that
legacy does not lie in outward things--in monuments or statues or
flags. All that these tangible things can do is remind us of what is
truly precious: our liberty.
This proposed amendment would be the first amendment to the
Constitution that would narrow the precious freedoms enjoyed by
Americans under the Bill of Rights. The infringement would fall on the
first amendment, the cornerstone and foundation of all of our rights,
of which we must be especially protective. The first amendment has
stood up in times of war, during times of bitter protest. It has been
one of the rocks on which our national unity and our national stability
are built.
The proposed amendment is a wrong-headed response to a crisis that
does not exist. It would be an unprecedented limitation on the freedom
Americans enjoy under the Bill of Rights and would do nothing to
bolster respect for the flag. Respect for the flag flows from the
freedoms we enjoy and from the sacrifices of those who have protected
that freedom. Our cherished flag is the symbol of our Nation and of the
Constitution that is the foundational keystone of our Republic, and of
our freedom. This is about defending the Constitution, my friends, for
which our flag stands. Each generation of Americans owes the next
generations the effort and the dedication it takes to pass along the
torch of freedom, undiminished. We owe it to them, and to those who
have sacrificed so much for us, to cherish and to protect freedom, and
the Constitution which is the written promise of that freedom.
Rather than face the solemn responsibility of justifying an amendment
to the Constitution, proponents of S.J. Res 12 have urged that we just
pass it on to the States and let them decide. They said that Senators
should abdicate their responsibility to exercise their best judgment
and simply pass the buck. I could hardly believe my ears.
Have we utterly forgotten the words of James Madison and the
conservative conception of amendment the Founders built into our
Constitution? The Constitution intentionally makes it difficult to pass
amendments to our fundamental law. No amendment can pass unless every
level of government, from the House to the Senate to the States,
overwhelmingly supports it. Our system is undermined if each
institution of government does not exercise independent judgment, if we
do not fulfill our constitutional responsibility.
This is the fifth time that this body has considered a constitutional
amendment to punish flag burners. Some of us have voted on the proposal
before; others have not. But either way, we are undertaking the gravest
of responsibilities. We are taking in our hands the inalienable rights
of Americans, today and the generations that follow long after we have
gone. We are handling the most precious heirloom that we have, the
finest thing that we can hope to pass on to our children and
grandchildren. I would hope that at this of all times we would give the
Constitution the respect that it deserves and support and defend it.
This week we returned to use what little time left to the Senate this
year to revisit a debate on that has wisely been rejected in this
chamber four times in the last 17 years: a proposed amendment that
would roll back our first amendment freedoms for the first time in our
Nation's history. While we devote precious floor time to debate this
matter, the Nation is gripped by the ongoing war in Iraq, the
continuing threat of terrorism, soaring energy and health care prices,
rising inflation, and a burgeoning deficit.
Indeed, this debate is another illustration of the Republican
leadership's disregard for the needs of the American people and the
institutional responsibilities of this body. They continue to mistreat
our Constitution as if it were a bulletin board on which to hang
political posters or bumper stickers. The Constitution is too important
to be used for partisan political purposes, and so is the American
flag.
The timing of this debate raises the question of why the Republican
leadership has made this issue its top priority in the face of an
unfinished agenda of legislative matters that do concern Americans day
in and day out. The Senate has hardly made progress on a legislative
agenda. We have yet to consider any of the 13 appropriations bills for
the year. We have yet to enact a budget resolution, which was required
by law to be in place on April 15. We have yet to enact a lobbying
reform bill, a comprehensive immigration bill, or pension protection
legislation. We have yet to consider or pass asbestos litigation reform
legislation, patent reform legislation or the reauthorization of the
Voting Rights Act. We have yet to pass a long overdue raise in minimum
wage, to take action to lower gas prices, health care costs or health
insurance costs. Instead, with less than 10 weeks left in this session
of Congress, the Republican leadership will work on none of those
important matters.
The amendment we consider today would artificially create division
among the American people, and the timing of this debate--squarely in
the middle of an election year--demonstrates, again, that the
Constitution is being misused for partisan purposes. The Constitution
deserves our respect, vigilant protection and in the words of our
Senate oath our ``support''. We have a duty to defend it. The
Constitution is not a blog for venting political opinions, curry
favoring with voters or trying to bump up sagging poll numbers.
The flag is an important symbol of all that makes America great. But
the cynical use of symbolic politics in an election year will not
address the very real needs of veterans and other Americans that are
being left unmet by this administration and the Republican Congress.
I know that many veterans support the flag desecration amendment and
I respect their views. We must not forget though that there also are
many veterans who oppose it. I appeared with a number of distinguished
veterans on Flag Day who spoke about their dedication to the principles
that make this country great and for which they fought and sacrificed.
Those principles include our precious freedoms under the first
amendment. These veterans of World War II, Korea, Vietnam, the First
Gulf War and Iraq made clear that they fought for what the flag stands
for, not just the symbol itself.
Former Senator John Glenn, a combat veteran, wrote: ``The flag is the
Nation's most powerful and emotional symbol. It is our most sacred
symbol. And it is our most revered symbol. But it is a symbol. It
symbolizes the freedoms that we have in this country, but it is not the
freedoms themselves.''
The late John Chafee, a distinguished member of this body and a
highly decorated veteran of World War II and Korea, opposed this
amendment because, he said: ``We cannot mandate respect and pride in
the flag. In fact taking steps to require citizens to respect the flag,
sullies its symbolism and significance.''
Flag desecration is a despicable and reprehensible act. We agree with
that--all of us agree that it is contemptible. That is not the issue,
instead, the issue before us is whether we should amend the
Constitution of the United States with all the risks that that entails
and whether, for the first time in our history, we should narrow the
precious freedoms ensured by the first amendment. Should we amend the
first amendment so that the government can prosecute the handful of
individuals who show contempt for the flag, those General Powell called
miscreants? Such a monumental step is unwarranted and unwise.
We are being tested. This generation of Americans is being tested by
the
[[Page S6542]]
threat of international terrorism. America wins when it meets that
challenge without allowing those who threaten us to compromise us. We
suffer losses not only when we suffer attacks as we did toward the end
of President Bush's first year in office, but also when we give up
those freedoms that define us as Americans. For the Congress to
surrender our fundamental rights as Americans as proposed in the
constitutional amendment is wrong.
Following the very real attacks on 9/11, Americans embraced the flag
like never before, proudly displaying flags and flag symbols as a sign
of unity and strength in the wake of those horrible acts against our
nation. People around the world grieved for us, cared for us, and
joined with us to fight terrorism. Over time, missteps and arrogance by
the Bush-Cheney administration have alienated much of the world. Still,
Americans of all political persuasions have not needed a law to tell
them how precious our freedoms are or how to honor the Stars and
Stripes.
Supporters of this constitutional amendment seem to believe that
Americans need rules about respecting the flag punishable by law. I
strongly disagree and the American people have already proven them
wrong. The American people do not need a lesson in cherishing and
honoring our flag and the Republic for which it stands. That may be
necessary in Saddam Hussein's Iraq or in Stalin's Soviet Union or in
Castro's Cuba, but not in America.
In fact, respect cannot be coerced or compelled. It can only be given
voluntarily. We respect and love our country, but not because we are
told to. Americans do not love our country because we would be punished
if we did not. Some may find it more comfortable to silence dissenting
voices, but coerced silence creates resentment, disrespect, and
disunity. I proudly fly the flag at my farm in Vermont because, as an
American, it is what I choose to do.
In every hamlet and city and on every rural route in America, you can
see our flag being flown with pride. Americans in overwhelming numbers
are honoring our flag, not defacing it.
Of course, there are times when individuals deface the flag or
violate the rules for its care. For example, President Bush was
captured on film signing a hand-held flag at a campaign rally in the
summer of 2004. Appropriate or not, these acts are protected by our
Constitution. They do not need to be punished by Congress after we pass
a constitutional amendment restricting the first amendment rights of
all Americans.
In all of the hearings, all of the debate that we have devoted to
this topic over the past 17 years, not one single person has testified
that he respects the flag less because a protestor burned it, wrote on
it, sewed it in the seat of his pants, or otherwise misused it. Not
one.
Not one single person has testified that they love our country less
because Americans are free to express themselves in this way. Not one.
There is not a single indication that any act of flag burning has
lessened the respect that any American has for the flag or for our
country. It would be pathetic if our love of country or respect for its
fundamental principles was so weak that it could be diminished by such
an act. We know that it is not.
The truth is just the opposite. Occasional insults to the flag do
nothing to diminish our respect for it. Rather, they remind us of our
love for the flag, for our country, and for our freedom to speak, think
and worship as we please.
Our flag is a cherished symbol. As are the freedoms for which it
stands, including the freedom to express unpopular speech or ideas--
even extremely unpopular ideas.
As I have said many times throughout this debate, I wish the Senate
would, instead, use its time to discuss and solve the real problems
that real Americans are facing right now, instead of trying to stir
public passions for political ends.
I respectfully suggest that in the less than 10 weeks left to us in
session this year, the Senate's resources would be better spent working
to improve veterans' health care services, survivors' benefits and
protecting veterans' and Americans' privacy. There are so many issues
that we could turn to that would help improve the lives of our veterans
and their families. Why not focus on them?
Just today on the front page of the newspaper, we learned that this
Government's bureaucratic bungling has resulted in widows of those who
have served this Nation and sacrificed for all of us are being denied
the survivors' benefits to which they should be entitled. This news
follows closely public reports that post-traumatic stress disorders
among our veterans are on the rise.
Instead of seeking to turn the flag into a partisan political weapon
and the Constitution into a billboard for political slogans, for
partisan gain, we could be spending time debating these real issues or
much-needed funding for services to our veterans. This President's
budget requests have consistently fallen short of the levels needed to
provide necessary services and care. President Bush's budgets force our
veterans to subsidize their government health care and simply does not
account for the increase in demand for VA services due to the Iraq war.
We could also be taking real action to prevent the kind of data
losses that just affected millions of our veterans. We just witnessed
the largest theft of private information from the Government ever, the
loss of information on more than 26.5 million American veterans,
including more than 2 million who are in active service, nearly 80
percent of our active-duty force and a large percentage of our National
Guard and the Reserve.
Last year, Senator Specter and I introduced the Personal Data Privacy
and Security Act, which requires Federal agencies and private data
brokers to give prompt notice when sensitive personal information has
been breached or stolen. The Judiciary Committee overwhelmingly
approved this bill last fall, but almost a year later, the Senate has
still not acted on this legislation. Had this bill been enacted, it
would have required the VA to promptly notify the millions of veterans
now at risk of identity theft about the theft of their personal data.
Our bill also addresses the Government's use of personal data by
putting privacy and security front and center in evaluating whether
data brokers can be trusted with Government contracts that involve
sensitive information about the American people.
The Nation's veterans--who have been willing to make the ultimate
sacrifice for their country--deserve to have the best tools available
to protect themselves and their families from identity theft. The
Senate should be acting to consider and pass comprehensive data privacy
and security legislation.
Sadly, the list of what we are not accomplishing goes on and on. The
way things are going, under Republican leadership, this session will
make the ``do nothing'' Congress against which President Harry Truman
ran seem like a legislative juggernaut.
The days we have spent on this amendment could be spent more
productively on any of the matters I have mentioned. There are less
than 10 weeks remaining in the Senate's scheduled work year. It seems
that even with all that remains undone, at this point in this election
year, floor time is available only for matters that advance the
Republicans narrow political agenda.
Republicans have the Senate majority; they control the schedule, they
set the priorities. In my view, it reflects a strange set of priorities
to think our national interest is best served at this time by debating
a constitutional amendment to roll back the Bill of Rights for the
first time in our history.
I treat proposals to amend the Constitution with utmost seriousness,
for it is a serious responsibility. I began this debate by noting my
home State of Vermont's tradition of independence and commitment to the
Bill of Rights. Vermont did not and would not become a State until
1791, the year the Bill of Rights was ratified. At one time, we
declared ourselves an independent republic.
I plan to proudly uphold that tradition today by voting against this
amendment, and I hope, although likely in vain, that the Senate will
move on to more pressing matters that directly affect the lives and
livelihoods of the American people.
There being no objection, the material was ordered to be printed in
the Record, as follows:
June 8, 2006.--Now that the Republican leaders in the
Senate have finished wasting
[[Page S6543]]
the nation's time over a constitutional ban on gay marriage,
we're bracing for Act Two of the culture-war circus that the
White House is staging to get out the right-wing vote this
fall.
Senator Bill Frist, the majority leader, plans to continue
to set aside work on pressing issues facing the country to
vote on yet another unworthy constitutional amendment--a
prohibition on burning the American flag.
If the gay marriage amendment was a pathetic attempt to
change the subject in an election year, the flag-burning
proposal is simply ridiculous. At least there actually is a
national debate about marriage, and many thousands of gay
couples want to wed. Flag burning is an issue that exists
only for the purpose of pandering to a tiny slice of voters.
Supporters of the amendment cannot point to a single instance
of anti-American flag burning in the last 30 years. The video
images that the American Legion finds so offensive to
veterans and other Americans are either of Vietnam-era
vintage or from other countries.
Nevertheless, flag burning remains one of those ``wedge
issues'' that Republicans use to denigrate the patriotism of
Democratic candidates or to get the party's base out to vote.
The other big difference between the two amendments is that
the ban on gay marriage was never going to get the two-thirds
vote in Congress required to send it to the states for
ratification. Yesterday, the Senate rejected it by 49 to 48,
with the help of seven Republicans.
The flag-burning amendment, on the other hand, actually
could pass. A realistic nose count based on members' public
statements and how they voted when the measure last came up,
in 2000, suggests the Senate may be just a single vote short
of punching a hole in free speech.
Senator Harry Reid, the minority leader, should be rallying
Democrats to join the small handful of principled Republicans
so far willing to oppose the amendment. But as things stand,
he is among the Democrats who plan to vote for this
constitutional vandalism. Opponents of the amendment, like
Senator Patrick Leahy, Democrat of Vermont, are standing on
firm ground in trying to protect the Bill of Rights from an
election-year stunt.
It is the patriotic thing to do.
____
Congress Nears Choice: Protect Freedom or Stoke Anger?
In early June an allegedly drunken man in West Haven,
Conn., yelled racial epithets and tore up an American flag
while arguing with police and passersby. Earlier in the
spring, instances of vandalism involving flags were reported
in New Hampshire and New York.
Those three episodes of 2006--as compiled by the Citizens
Flag Alliance, a group pushing for a constitutional amendment
to protect the flag--constitute the raging menace of flag
desecration.
In fact, they show what a non-issue flag desecration is.
Instances are rare and easily addressed by local laws. They
hardly require the extraordinary act of amending the
Constitution.
But in a Congress unwilling to address important matters--
its own ruinous spending and flagrant corruption to name just
two--symbolism is the politically convenient substitute for
substance. The Senate will soon take up an amendment to stop
flag burning, and the vote is expected to be razor close. The
House of Representatives has passed it, meaning that it could
soon be sent to state legislatures, where it would be
ratified if three-quarters approve.
While it's tempting to dismiss this as trivial election-
year posturing, the precedent is troubling. It would for the
first time alter the cornerstone of American freedom, the
Constitution's First Amendment.
That is not a small matter. The First Amendment is the
reason Americans are free to say what they think. It is also
the reason people here can worship as they wish, associate
with whomever they please, and get news and information from
a free and independent press. It gives citizens a right to
have grievances redressed. To limit those rights--especially
for so trivial a reason--is to say they are no longer
sacrosanct.
They should be. They are what makes America unique.
If Congress banned something as pathetic as flag
desecration to score political points, surely it would
consider limiting other unpopular speech.
The amendment's wording virtually guarantees that outcome.
Would it, for instance, cover depictions of flags as well as
actual cloth banners? Would sitting on a flag patch sewn onto
the back of a pair of jeans count?
And what about the issue of flying a flag upside down? This
has already become the preferred form of protest for people
pushing for everything from an immediate withdrawal from Iraq
to better psychiatric care for veterans. These protesters
often say that they respect the values the flag represents,
but that they believe those values are being subverted by
people in power. Does this country really want to criminalize
such a nuanced form of political dissent?
These issues would be left to legislation drafted by future
Congresses and interpreted by courts. All of that, in turn,
would weaken individual rights that are at the Constitution's
heart.
And for what gain? Proponents of an amendment say the flag
is such an important symbol of American democracy that it
deserves a special status. But the Connecticut flag burner
was charged with seven offenses ranging from public
consumption of alcohol to criminal mischief. Surely, that is
sufficient.
In fact, what makes the flag so special is this: It stands
for a nation that deems individual liberties so important, it
tolerates unpopular minority opinion.
The main threat to the flag comes not from the occasional
burning of Old Glory. It comes from those who would sacrifice
the principles the flag represents.
____
[washingtonpost.com, June 21, 2006]
Flag Burning Redux
With Congressional elections coming, the Republican
leadership has found a pivotal issue. Terrorism? Hardly.
Entitlement reform? Don't be silly. We're talking about the
grave threat to America known as flag burning. Yes, that
election-year favorite is back: the proposed amendment to the
Constitution of the United States allowing Congress to
criminally punish the ``physical desecration'' of the
American national banner. If you haven't noticed a rash of
flag-burning incidents sweeping the nation that's because,
well, there isn't one. But that doesn't stop Republicans from
trotting it out as a more-patriotic-than-thou card.
They are, as always, close to having the votes to send it
to the states for ratification. The House of Representatives
has passed the measure and the vote will be tight in the
Senate, where the Judiciary Committee approved the amendment
11 to 7. We hope the amendment will fall short of the needed
two-thirds majority on the Senate floor; it's depressing
enough that a majority of senators will support it.
The amendment would soil the First Amendment's command that
Congress shall ``make no law . . . abridging the freedom of
speech.'' Flag burning is an odious form of expression. But
there are lots of odious forms of expression the First
Amendment protects: Holocaust denial and swastikas, racist
rants and giant Confederate flags, hammers and sickles. The
amendment's power is in its self-confident sweep: Speech,
including expressive acts, will not be censored. Government
cannot punish ideas. Members of Congress who would protect
the flag thus do it far greater damage than a few miscreants
with matches.
The PRESIDING OFFICER. The assistant Democratic leader is recognized.
Mr. DURBIN. Mr. President, I have spoken to the Senator from Utah,
and I would like to ask how much time I have remaining.
The PRESIDING OFFICER. Four minutes.
Mr. DURBIN. I understand the Senator from Utah will then close.
The PRESIDING OFFICER. He has 6 minutes.
Mr. DURBIN. Thank you, Mr. President.
Mr. President, first, I ask unanimous consent that Senators Carper
and Boxer be added as cosponsors to my pending amendment, and I ask
unanimous consent that three commentaries in opposition to the flag
amendment be printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
[From the Chicago Sun Times, June 21, 2006]
Ill-Starred Flag Amendment Would Do Nation No Good
Nearly 30 years after Cubs outfielder Rick Monday snatched
an American flag from two idiots at Dodger Stadium who had
doused it in lighter fluid and were trying to light it with a
match, we still applaud him for his exemplary act of
patriotism--for acting on our behalf. As devoted as we are to
free speech, we would have been hard-pressed to bottle our
anger over the desecration of the Stars and Stripes before
tens of thousands of spectators.
Our appreciation of Monday was not diminished by his
appearance last week at a rally for a proposed flag
desecration amendment--an event at which he exhibited the
rescued flag, which was presented to him by the Dodgers. But
however heartfelt this gesture was, it was wrongheaded in
lending support to a manufactured cause with no real value
except a political one, the equivalent of throwing red meat
on the table.
You would think, from the emotional momentum this issue has
gained in recent times, there is a pressing need for an anti-
flag-burning amendment. Most Americans are in favor of it.
The House has backed the amendment, and the Senate may well
follow suit next week, when it is scheduled to decide on the
constitutional ban. Reportedly, it is within a vote or two of
the two-thirds majority it needs. In 2000, it fell four votes
short.
But, in fact, this is a classic example of a solution in
search of a problem. Flag burnings, which most of us
associate with Vietnam-era protests, have all but disappeared
from the American landscape. No protests of the war in Iraq
(which have been relatively few) have featured flag
desecrations. The closest anyone has come to publicly
mistreating the flag, arguably, was a case of two athletes
wrapping themselves in it at the Olympics.
[[Page S6544]]
You might also think this is an issue in need of legal
clarification. But, no, the Supreme Court ruled in 1989 that
as distasteful or offensive as this kind of protest is, it is
protected by the First Amendment. A year later, the high
court overturned the federal Flag Protection Act. The fact
that yet another effort is being mounted tells you not that
the principles have changed, but the political climate has.
Sorry, but that's not a good enough reason to alter the
Constitution.
This represents the consensus of the Sun-Times News Group
of 100 newspapers in the metro Chicago area.
____
Emergency Committee to Defend the First Amendment
The following statement was released today by Professors
Norman Dorsen and Charles Fried, Co-chairs of the Emergency
Committee to Defend the First Amendment. The Committee is
composed of prominent Americans--conservative, moderate and
liberal--including former officials of the Reagan
Administration, former Republican members of Congress, senior
professors of constitutional law, several former presidents
of the American Bar Association, and leaders of other
national organizations.
The First Amendment to the United States Constitution has
served us since 1791 through wars, including a Civil War, and
crises of every sort without the need for amendment. It is an
icon of our freedom. To amend it now comes close to
vandalism.
The proposed constitutional amendment limits how people may
protest and sets a precedent for banning other forms of
dissent. If the flag, why not the Great Seal of the United
States or the Constitution? Why not the Bible or (to be
ecumenical) religious icons of all faiths? The founders of
this country would have been shocked at the notion that the
government could restrict ways by which the people can
protest conditions in the country or the government's own
policies.
As the Boston Tea Party illustrates, the founders were
familiar with symbolic protest. Moreover, the American
revolutionaries were also not exactly kind to their country's
flag, the Union Jack. George Washington ordered thirteen red
and white stripes sewn onto it and called it the ``Thirteen
Rebellious Stripes.'' Pennsylvania's first flag after
declaring independence was a British flag with a coiled
serpent ready to strike at the English ensign. These protests
``desecrated'' the country's then-existing flag.
Totalitarian countries fear dissenters sufficiently to
suppress their protests. A free nation relies on having the
better argument. It is possible to burn a particular flag,
but no one can destroy the symbol and meaning of the flag. No
matter how many flags are burned, the American flag will
still exist, untarnished and waving bravely in the breeze.
The Emergency Committee urges the Senate to demonstrate the
sort of statesmanship of which it is capable by rejecting the
proposed constitutional amendment.
Emergency Committee to Defend the First Amendment:
Terry Anderson; Writer, former Journalist; Former Lebanese
Hostage.
Derek Bok; President, Harvard University (1971-1991); Dean,
Harvard Law School (1968-1971).
Clint Bolick; Litigation Director, Institute for Justice.
Benjamin Civiletti; Partner, Venable, Baetjer & Howard;
U.S. Attorney General (1979-1981).
John J. Curtin, Jr.; Partner, Bingham Dana & Gould;
President, American Bar Association (1990-1991).
Norman Dorsen; Stokes Professor of Law, New York University
Law School; Counselor to the President of New York
University; President, American Civil Liberties Union (1976-
1991).
Bruce Fein; Lawyer and Journalist; Former Department of
Justice Attorney.
Charles Fried; The Beneficial Professor of Law, Harvard Law
School; Solicitor-General of the United States (1985-1989).
Shirley M. Hufstedler; Of Counsel, Morrison and Forster;
Circuit Judge, U.S. Court of Appeals, 9th Circuit (1968-
1979).
Martin Lipton, Partner, Wachtell, Lipton, Rosen & Katz.
Robert MacCrate; Partner, Sullivan & Cromwell; President,
American Bar Association (1987-1988).
Charles McC. Mathias, Jr.; Partner, Jones, Day, Reavis &
Pogue; U.S. Senator (R-MD, 1969-1987).
J. Michael McWilliams; Partner, Tydings & Rosenberg;
President, American Bar Association (1992-1993).
Robert M. O'Neil; Director of the Thomas Jefferson Center;
President, University of Virginia (1985-1990).
Roswell B. Perkins; Partner, Debevoise & Plimpton; Former
President, American Law Institute.
Roger Pilon; Director, Center for Constitutional Studies,
The Cato Institute.
E. Barrett Prettyman, Jr.; Partner, Hogan & Hartson;
Trustee, National Council on Crime and Delinquency.
Roberta Cooper Ramo; Partner, Modrall, Sperling, Roehl,
Harris & Sisk; President, American Bar Association (1995-
1996).
James H. Warner; Lawyer; White House Domestic Policy Staff
(1985-1989); Former Vietnam POW.
____
The American Legion,
American Legion Post # 315,
San Francisco, CA, July 14, 2005.
Re Oppose S.J. Res. 12, the Flag ``Desecration''
Constitutional Amendment.
Dear Senator: As the Commander of American Legion Post #315
in San Francisco, CA, I write to urge you to oppose S.J. Res.
12, the proposed constitutional amendment to prohibit
``desecration'' of the flag. Although the national American
Legion leadership supports this amendment, I wish to express
my disagreement with that position and my dismay with the
apparent willingness of Congress to amend the First Amendment
to restrict free speech.
Acts of burning or otherwise defacing the flag are rare,
but they can be a powerful form of expression. I should be
clear that it saddens me to think of those who would damage
the flag, but I believe it my duty to defend their right to
do so. The flag stands for freedom, yet this constitutional
amendment would diminish fundamental freedoms by undermining
the right to free expression guaranteed by the Bill of
Rights.
American Legion posts across the country recently marked
the passing of Flag Day by organizing flag burning ceremonies
to dispose of worn and damaged flags. Proponents of the flag
amendment say they seek to ban an act, not a form of
expression. Surely they do not mean to ban respectful flag
disposal ceremonies like these. Rather, they seek to prohibit
acts of flag desecration that are intended to convey a
certain political message. When the founders drafted the
First Amendment, they intended to protect peaceful
expression, however unpopular and offensive. In fact, it is
precisely such unpopular speech that requires the protection
afforded by the Constitution.
There is significant diversity of opinion among veterans in
general and American Legion members in particular on this
issue. In fact, just last year a past National Commander of
the Legion, Keith Kreul, gave Senate testimony in opposition
to the flag amendment. I suggest, as Mr. Kreul did, that this
amendment is not an appropriate way to honor the service of
this nation's veterans. There are many pressing concerns
facing our veterans and active duty troops, including
shortfalls in funding for veterans healthcare and daily
dangers facing troops serving in Iraq. The flag amendment is
an unfortunate distraction from these issues.
If passed, the flag amendment would constitute the first-
ever restriction on the Bill of Rights. I urge you to oppose
this measure. In doing so, you will defend the true spirit of
the Constitution, and the freedoms for which the flag stands.
Sincerely,
Sharon Lee Kufeldt,
Commander, American Legion Post # 315,
U.S. Air Force Veteran.
Mr. DURBIN. Mr. President, you have heard the debate for 2 days now.
On one side of the aisle, those supporting this amendment have
summarized their feelings in three words: Respect the flag. On the
other side of the debate are those who say: Respect the Constitution.
They understand that what we are being asked to do is historic. Senator
Byrd has reminded us. This would be the first time in the history of
the United States of America that we would amend the Bill of Rights.
It is a historic moment. And it takes some audacity and bravado for
any sitting Member of the U.S. Senate to believe they have a better
idea than James Madison, Thomas Jefferson, and our Founding Fathers had
over 200 years ago. It takes a special circumstance for us to even
consider changing that beloved first amendment, which has guided us for
more than two centuries.
The incidents of flag burning are rare. They are disgusting. But
there are ways we can deal with this without defiling this
Constitution.
Senator Hatch's amendment says do not desecrate the flag. I believe
we should not desecrate the Constitution. There is a way. The pending
amendment points to the way: a Federal criminal statute carefully drawn
to meet the Supreme Court test that would really deal with preserving
and protecting the flag as we know it, as an important symbol of
America, without invading our Bill of Rights. And the second part of my
amendment which I am offering is one that you know about because you
hear about it all the time.
There is this demented group--I will not even give the full name of
this church from Topeka, KS, because I do not want to give them any
publicity. But this demented group is appearing now at military
funerals, the funerals of veterans and soldiers, demonstrating. Here
they are issuing a press release that says: ``Thank God for IEDs
(Improvised Explosive Devices),'' announcing they are coming to my home
State of Illinois to picket the funeral of Army SPC Brian Romines, who
was 20 years old, at the Anna Heights Baptist Church in Anna, IL. It is
disgusting: this family, racked with grief,
[[Page S6545]]
trying to get through the most difficult day of their lives, having to
walk through the lines of demonstrators this demented person would
bring to the funeral.
Well, the Senator from Idaho has said on the floor that I have gone
too far with my amendment, I have gone too far in limiting these
demonstrations at military funerals. I think he is wrong. These
demonstrations are wrong not just in national cemeteries, they are
wrong in all cemeteries. They are wrong at all churches. They are wrong
at all funerals. And the Senate will have a chance, with my amendment,
to vote and say that we will limit this kind of disgusting activity
that disrespects the men and women who have fought and died for
America.
That is the amendment before us, an amendment to protect our flag and
to protect the memory of those who have fought and died for our
country. I am proud to offer this bipartisan amendment. It is an
amendment which, at the end of the day, we can point to with pride
because we have done something important.
But I urge my colleagues, think long and hard about being the first
to amend the Bill of Rights in the history of the United States of
America. We have given our oath to uphold and defend that Constitution.
Today we will be put to the test. Will we uphold and defend that
Constitution from a change that is totally unnecessary?
Mr. President, I yield the floor.
The PRESIDING OFFICER. The Senator's time has expired.
The Senator from Utah.
Mr. HATCH. Mr. President, what does the Bill of Rights have to do
with this? That argument is not a valid argument. Look at what the
amendment says:
The Congress shall have power to prohibit the physical
desecration of the flag of the United States.
There is no interference with the Bill of Rights. Yet the Senator--
the Senators--who want to so-called protect the Bill of Rights have
come up with a statute that does exactly the opposite, according to
their way of looking at it.
Frankly, there are only five Justices who said that defecating on the
flag, urinating on the flag, burning it with contempt, and stomping on
it is not a violation of the first amendment.
But this amendment does not have anything to do with that. All this
amendment says is that we are going to give the power back to the
people and to the people's representatives in Congress, and they will
make the determination as to how we protect the flag, if they decide
to. In other words, we are going to restore the Constitution to what it
was before these unelected five Justices on the Supreme Court changed
it. And four others disagreed with them.
By the way, the distinguished Senator from Massachusetts said this is
election-year politics. I wonder how he explains the 6 years in a row
that the House of Representatives, in bipartisan votes, has passed
this amendment by the requisite two-thirds vote? I wonder how he is
going to explain that 48 States had antiflag desecration statutes
before the Supreme Court wiped all of that out and all of the people's
work and all of the people's will out. What is he going to say about
the 50 States, including his, that have petitioned us for this
amendment? Fifty State legislatures have asked for this amendment.
There are 60 cosponsors in the Senate. There are at least six others
who have always voted to protect the flag. I question whether all six
of those will vote for this. But the fact is, they should because they
have always voted for it. So there are at least 66 people who should be
voting for it.
There is no narrowing of the Bill of Rights by this amendment. That
argument would have to take place after this amendment passes by the
two-thirds vote, if it could, and then is ratified by 38 States. Then
there would be a debate where they could raise all the issues they want
about the first amendment, faulty though they are.
The fact is that I was asked this afternoon by a large body of media:
Is this the most important thing the Senate could be doing at this
time? I can tell you, you're darn right it is. The fact is, we had five
unelected Justices who overturned 100 years of Supreme Court precedent,
backing up 48 States that have had antiflag desecration amendments. We
have had 50 States ask for a change here so we can go back to
protecting our flag.
What we would be doing is sending a message to the Court: You cannot
usurp the power of the Congress of the United States. That is what is
involved. I hear time after time complaints about the courts usurping
the powers of the Congress and other branches usurping the powers of
the Congress. Here is a chance to bring that power back to the Congress
where it belongs and then have that debate. It would still take 60
votes because of the opposition of some. It would still take 60 votes
to pass a statute if we could pass this amendment.
The fact is, if you want to respect the Constitution, let's restore
it to what the Constitution was before five unelected jurists changed
that Constitution. The fact is, this amendment is one of the most
important things we can do to send a message to the U.S. Supreme Court
that: You cannot usurp the power of the legislative branch of this
Government.
It does nothing about the Bill of Rights. That would have to be
argued later if we pass this amendment and have it ratified. Then we
could argue about the Bill of Rights later. And I will bet you money,
the only reason Senators are claiming the Bill of Rights is to try to
justify their vote. But now, if they believe the Bill of Rights is
being interfered with, then why would they come up with a statute to do
the very same thing they are saying this amendment does? Why have they
always come up with a statute that basically, if you use their logic,
invades the first amendment to the Constitution? Why would they do
that? There is only one reason. It is a political reason to cover their
backsides.
Mr. President, I thank the Senate.
The PRESIDING OFFICER. The majority leader is recognized.
Mr. FRIST. Mr. President, in a few moments we will be voting on the
two amendments, which really follows the good debate we have had since
yesterday when we began debate on this flag protection amendment. As I
promised early in the year, I brought this joint resolution to the
floor this week in part in anticipation of the Fourth of July recess--a
time when all of us go back and think about the flag and the enduring
ideals of freedom and opportunity that it represents.
It has been 6 years since we have had that debate on this floor. It
is something that comes to the House each and every Congress, and they
vote on that. So I felt it would be appropriate. Indeed, in listening
to the debate--the Constitution issues and the importance of the flag--
I have been very pleased, and I hope that debate reflects passage of
the amendment in a few moments.
It is my hope, when we return to our home States next week or later
this weekend to celebrate the anniversary of America's independence, we
will be able to tell our fellow citizens that we did the right thing
here in Congress and voted to give Congress the power to protect the
Stars and Stripes.
Americans have so much to be proud of. We enjoy a greater measure of
liberty and justice and equality than any other country in human
history. Millions upon millions of people have come to these shores
seeking a better life, and they have found it here. We are a nation of
hopeful, resourceful people who continually strive to live up to our
ideals and provide greater and better opportunities for our children.
There is one symbol that above all others encapsulates that hope, that
freedom, our history and our values, and that is the American flag.
From the time we are schoolchildren, we honor our flag and all it
stands for. With our hand over our heart, each morning here in this
body, the U.S. Senate, we honor it. In times of crisis, raising those
Stars and Stripes has symbolized our unity, our perseverance as a
nation, as a people. Whether it is the marine struggling to plant the
flag on Iwo Jima or firefighters lifting the flag above the ruins of
the World Trade Center, it is that flag which inspires us to great acts
of heroism, of courage, of strength.
Unfortunately, however, there are no laws on the books to stop anyone
from destroying this cherished symbol. Although the vast majority of
Americans--over 80 percent--and all 50 of our State legislatures
believe the flag
[[Page S6546]]
should be protected, the Federal Government is currently powerless to
enforce flag protection laws. That is because in 1989, as we talked
about, the Supreme Court, in a 5-to-4 decision, overturned 200 years of
precedent and struck down all laws prohibiting flag desecration. As our
colleague from Utah just said, it was a one-vote margin, 5 to 4, with
five Judges stripping the right of the American people--through their
voice, through this body--to protect that flag. It is my hope and
really my purpose in bringing that amendment to the floor to reverse
this decision, this activist decision, and return to the American
people the ability to protect the flag, if they so wish.
So in a few minutes in the Senate, we are going to have a vote to
return to the people, through this body, the opportunity to protect the
flag. And it is one single, simple sentence:
The Congress shall have power to prohibit the physical
desecration of the flag of the United States.
That is what we will be voting on. Key words: ``The Congress shall
have the power.'' All 50 States have passed resolutions calling on the
Congress to pass a flag amendment. The House passed a constitutional
amendment to protect against desecration of the American flag in this
Congress and in the last Congress, in the last Congress, in the last
Congress, in the last Congress, and in the last Congress, and now it is
time for us to do the same. We have failed to muster those two-thirds
votes in the past.
Today, we have a new opportunity to change that and to honor the
wishes of the American people. We are a Nation founded on principles.
Our flag is what binds us to those principles, to one another; it is
that physical symbol of our values, liberty, justice, freedom, and
independence. It commands our loyalty. To countless people around the
world, the red, white, and blue represents the highest of human
ideals--freedom.
I know we have heard again and again through the media the whole
issue about flag burning being protected as an exercise of free speech.
But is defacing a Government building free speech? Do we let our
monuments be vandalized? Clearly, the answer is no. I believe that our
American flag deserves the same respect. America is the freest country
in the world and we have the right to express dissent and persuade
fellow citizens of our views. But destroying the very emblem of that
freedom is just plain wrong. Countless brave men and women have died
defending the flag. It is but a small, humble act for us to defend it.
I will close with the words of our esteemed colleague, Senator Hatch,
who has done such a wonderful job in managing this particular bill and
a tireless advocate for the amendment. Here are his words:
Whatever our differences of party, race, religion, or
socioeconomic status, the flag reminds us that we are very
much one people, united in a shared destiny, bonded in a
common faith in our Nation and the profound belief in
personal liberty that our Nation protects.
Mr. President, I yield the floor.
The PRESIDING OFFICER. Under the previous order, the question is on
agreeing to the Durbin amendment.
Mr. DURBIN. Mr. President, I ask for the yeas and nays.
The PRESIDING OFFICER. Is there a sufficient second? There is a
sufficient second.
The clerk will call the roll.
The legislative clerk called the roll.
The PRESIDING OFFICER. Are there any other Senators in the Chamber
desiring to vote?
The result was announced--yeas 36, nays 64, as follows:
[Rollcall Vote No. 188 Leg.]
YEAS--36
Akaka
Bennett
Biden
Bingaman
Boxer
Byrd
Cantwell
Carper
Chafee
Clinton
Conrad
Dodd
Dorgan
Durbin
Harkin
Inouye
Jeffords
Kennedy
Kerry
Kohl
Lautenberg
Leahy
Levin
Lieberman
McConnell
Menendez
Mikulski
Murray
Obama
Pryor
Reed
Reid
Salazar
Sarbanes
Schumer
Wyden
NAYS--64
Alexander
Allard
Allen
Baucus
Bayh
Bond
Brownback
Bunning
Burns
Burr
Chambliss
Coburn
Cochran
Coleman
Collins
Cornyn
Craig
Crapo
Dayton
DeMint
DeWine
Dole
Domenici
Ensign
Enzi
Feingold
Feinstein
Frist
Graham
Grassley
Gregg
Hagel
Hatch
Hutchison
Inhofe
Isakson
Johnson
Kyl
Landrieu
Lincoln
Lott
Lugar
Martinez
McCain
Murkowski
Nelson (FL)
Nelson (NE)
Roberts
Rockefeller
Santorum
Sessions
Shelby
Smith
Snowe
Specter
Stabenow
Stevens
Sununu
Talent
Thomas
Thune
Vitter
Voinovich
Warner
The amendment (No. 4543) was rejected.
The PRESIDING OFFICER. The question is on the engrossment and third
reading of the joint resolution.
The joint resolution was ordered to be engrossed for a third reading
and was read the third time.
The PRESIDING OFFICER. The joint resolution having been read the
third time, the question is, Shall the joint resolution, as amended,
pass?
Mr. HATCH. I ask for the yeas and nays.
The PRESIDING OFFICER. Is there a sufficient second?
There is a sufficient second. The clerk will call the roll.
The assistant legislative clerk called the roll.
The PRESIDING OFFICER. Are there any other Senators in the Chamber
desiring to vote?
The yeas and nays resulted--yeas 66, nays 34, as follows:
[Rollcall Vote No. 189 Leg.]
YEAS--66
Alexander
Allard
Allen
Baucus
Bayh
Bond
Brownback
Bunning
Burns
Burr
Chambliss
Coburn
Cochran
Coleman
Collins
Cornyn
Craig
Crapo
Dayton
DeMint
DeWine
Dole
Domenici
Ensign
Enzi
Feinstein
Frist
Graham
Grassley
Gregg
Hagel
Hatch
Hutchison
Inhofe
Isakson
Johnson
Kyl
Landrieu
Lincoln
Lott
Lugar
Martinez
McCain
Menendez
Murkowski
Nelson (FL)
Nelson (NE)
Reid
Roberts
Rockefeller
Salazar
Santorum
Sessions
Shelby
Smith
Snowe
Specter
Stabenow
Stevens
Sununu
Talent
Thomas
Thune
Vitter
Voinovich
Warner
NAYS--34
Akaka
Bennett
Biden
Bingaman
Boxer
Byrd
Cantwell
Carper
Chafee
Clinton
Conrad
Dodd
Dorgan
Durbin
Feingold
Harkin
Inouye
Jeffords
Kennedy
Kerry
Kohl
Lautenberg
Leahy
Levin
Lieberman
McConnell
Mikulski
Murray
Obama
Pryor
Reed
Sarbanes
Schumer
Wyden
The PRESIDING OFFICER. On this vote, the yeas are 66, the nays are
34. A quorum being present, two-thirds of the Senators voting not
having voted in the affirmative, the joint resolution is rejected.
The Senator from California.
Mrs. BOXER. Mr. President, I would like to make a statement
explaining my vote. I wonder if that is in order at this time.
The PRESIDING OFFICER. Without objection, the Senator is recognized.
Mrs. BOXER. Mr. President, I had tried to get time earlier in the
day. Unfortunately, I was tied up in a markup. I want to express myself
briefly on the constitutional amendment.
I opposed it, even though clearly it was far more popular in the
country to support it. I did so because of my love of our country, our
Constitution, and our freedoms. The love of country runs deep in my
veins, as I know it does in those of every Senator.
My family came here in the early years of the 20th century to be safe
from the Holocaust in Europe, the nightmare that took the lives of our
relatives and so many innocent people. To my family and to me, America
was not only a land of strength and courage but a land of compassion
and acceptance. My father, who was a CPA, always said to me: Kiss the
ground when you pay your taxes to America because you are helping to
build our military, our schools, our roads, and our infrastructure.
My mother said that being an American meant being free to live your
dreams, and only in this country, she would say, in America, where she
was brought as a baby by her family, would that be possible.
I was taught not to be afraid of disagreement, not to fear words and
not
[[Page S6547]]
to shrink from an argument in this, the greatest country on Earth. In a
great country like the United States of America, you don't fear
dissent. In a great country you allow dissent, even if it is ugly, even
if it makes you sick to your stomach, even if it disgusts you. We are
so strong as a Nation that we know if someone takes one of our
beautiful symbols and destroys it or burns it or spits on it or steps
on it, that person will not win respect but will lose it. That person
will not win friends but in fact will turn people away. That person
will gain nothing for his cause but, in fact, will be ridiculed and
marginalized.
Now if a flag is burned or if a copy of the Bill of Rights or a copy
of the Constitution is burned and that act is meant to incite others
and it places people in danger, we should have laws to punish those who
would endanger other lives. That is why I was proud to support the
Bennett-Clinton-Durbin amendment, to do just that. I can certainly
understand how seeing our flag burn would inflame passions and incite
outrage. It does so in me.
The flag to me is a symbol of something I hold near and dear to my
heart--our democracy, our country, our history. And I am outraged when
I think about someone treating the flag in a disrespectful manner. But
I am also outraged when I see or hear about a group of people
protesting at the funeral of a fallen soldier, saying things like
``thank God for dead soldiers'' or ``God is America's terrorist.'' That
is what is going on today at soldiers' funerals.
Such despicable speech and disrupting the most sacred funerals of our
heroes makes no sense to me, and I can't begin to imagine the emotions
of the families of the soldiers who must endure these senseless
protests at a time of such loss. My instinct is to haul these
protesters away. My colleague, Senator Durbin, proposed an amendment
that would prohibit these awful protests at all funerals for our fallen
heroes, regardless of where the funerals take place, whether at a
national or private cemetery, a funeral home or a house of worship. I
was proud to support that amendment, and I was stunned to see how many
of my colleagues turned away from it.
I agree with the approach of Senator Durbin to the protests--
proposing a statutory solution to address a problem rather than
unnecessarily amending our Constitution. There are many things in life
that we find offensive, repugnant to beliefs that we hold dear, but we
cannot amend the Constitution every time there is something we consider
outrageous, offensive, or repugnant.
We have only amended our Constitution 16 times after the Bill of
Rights was passed in 1791--16 times over 214 years. But the Republican
leadership has decided the best use of our precious little working time
is to amend the Constitution--not amend it to guarantee equal rights
for women, which still has not been done, not to amend it to allow
limits on wealthy individuals buying Federal office--but for an issue
which I believe we can address by statute, as I believe Senators
Bennett and Clinton and Durbin did.
Some have suggested that this constitutional amendment is necessary
to honor our veterans. I think Senator Specter spoke eloquently on the
point. I say, if we want to honor our veterans we should take care of
our brave men and women in uniform who serve our Nation.
For example, just last week my good friend from Maine, Senator Snowe,
and I were able to get an amendment agreed to by the Senate which would
make all prisoners of war who die in captivity eligible for the Purple
Heart. Also last week Senator Lieberman and I were able to get an
amendment agreed to by the Senate improving the mental health screening
and monitoring for members of our Armed Forces.
I think we honor our veterans and Armed Forces when we make sure that
we are looking out for them, keeping our promises to them. Right now we
are not.
We should provide them with all the equipment they need while they
are deployed and all the health care they need when they come home.
Let's make sure our men and women have adequate body armor. Let's
find ways to expand health care coverage for the members of the Guard
and Reserves. Let's make sure the Veterans Administration is adequately
funded to meet the needs of our veterans at a time when we are seeing
horrific post-traumatic stress: suicides are up, divorces are up. These
are the ways we honor our veterans.
We love the flag--yes. We love our veterans--yes. But I think we can
do both without having to amend the Constitution.
I believe the flag is a beautiful symbol of the freedom and liberty
on which this proud Nation has been built. The flag is a reminder of
the democracy we all hold so dear in our hearts. When I see the flag
displayed in an inappropriate way--I think Senator Lautenberg showed
it--on underwear or on pajamas, I don't think that is respectful. But
that is what we see every day. I don't like it, but, you know what,
this Constitution is more than an outlet for our justifiable
frustrations. This Constitution is more than just an outlet for our
justifiable frustrations.
It is concise. It has worked. It is the enduring ideal of our Nation,
and we should not unnecessarily amend it.
I yield the floor.
The PRESIDING OFFICER. The Senator from Ohio.
Mr. DeWINE. Mr. President, seeing a number of my colleagues on the
floor, and I have talked to them, I ask unanimous consent that the
following Senators be able to speak in morning business as follows, in
this order: Senator Salazar for 5 minutes, Senators Wyden and Smith for
a total of 10 minutes, and Senator DeWine for 45 minutes.
The PRESIDING OFFICER. Without objection, it is so ordered.
The Senator from Colorado is recognized.
Mr. SALAZAR. Mr. President, I rise to speak about the flag
desecration amendment and talk about the nature of the debate we have
seen in the Senate over the last 2 days. First, let me be clear. I
support the amendment that came before the Senate today, and I just
cast my vote for it. The American flag is a unique symbol of our
heritage, our principles, and everything the citizens of this great
country have done to sacrifice for it. I do not believe laws narrowly
prohibiting the desecration of our flag in any way undercut the
principles embedded in the first amendment.
However, it is important to emphasize certain points as we debate
these issues. First, as is often the case when we consider whether to
amend the Constitution, this is not a simple question. It is not a
question that is cut and dried.
I understand the strong feelings of those who oppose this amendment.
I understand their argument that the freedoms the American flag stands
for, including the freedom of speech and expression, are as important
as the flag itself. We must not separate the flag from the cherished
principles that it represents.
In keeping with that concept, I believe it is wrong for proponents of
the flag desecration amendment to question the patriotism of those who
oppose it. Simply because Senator Durbin, Senator McConnell, Senator
Feingold, Senator Bennett, and others oppose this amendment does not
mean they believe the flag should be desecrated, nor does it mean that
they view the flag as any less important a symbol. As anyone who has
worked with these Senators knows, nothing could be further from the
truth.
Finally, my support for this amendment is based on the premise that
the flag is unique and deserves special protection. But for the same
reason I believe the flag should be protected, I also firmly believe it
should not be politicized for partisan gain. The American citizens who
pledge allegiance to this flag, who believe in what it represents, and
who live and work under it every day deserve better.
I also believe that we should be working as a Congress and as a
Senate just as hard to strengthen our national and homeland security,
improve our energy security, relieve the health care crisis that faces
America's businesses and America's families, educate our children, and
strengthen the American family.
I yield the remainder of my time and yield the floor.
The PRESIDING OFFICER. The Senator from Oregon is recognized.
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