[Congressional Record Volume 157, Number 85 (Tuesday, June 14, 2011)]
[Senate]
[Page S3784]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. HATCH (for himself, Mr. Baucus, Mr. Barrasso, Mr. Inhofe, 
        Mr. Vitter, Mr. Lugar, and Mr. Grassley):
  S.J. Res. 19. A joint resolution proposing an amendment to the 
Constitution of the United States authorizing Congress to prohibit the 
physical desecration of the flag of the United States; to the Committee 
on the Judiciary.
  Mr. HATCH. Mr. President, today is Flag Day and it is the perfect day 
to re-introduce a constitutional amendment that would allow Congress to 
protect the American flag from physical desecration. I am joined in 
doing so today by my friend, the distinguished Senator from Montana, 
Senator Baucus. He was an original cosponsor of this amendment on 6 
previous occasions when I have introduced it, including in the 109th 
Congress when this body came within one vote of approving it.
  The American flag is a unique symbol of our country, of its history, 
and of our shared values. There is, in fact, no more powerful unifying 
general symbol. At the same time, the flag no doubt means different 
specific things to different individuals; Congress cannot, and should 
not attempt to, dictate what Americans believe, think, or say about the 
flag and whatever it represents to individuals.
  That said, Congress should have authority to protect this unique 
symbol from at least physical desecration. The Supreme Court stripped 
even that authority from Congress in 1990 when it held that physical 
desecration is ``speech'' protected by the First Amendment. I believe 
the Court was wrong in that conclusion, but because the Court claimed 
to speak for the Constitution, the only way for Congress once again to 
have authority to protect the flag is by amending the Constitution.
  In his farewell address in 1796, President George Washington said 
that the very basis of our political system is the right of the people 
to make and to alter the Constitution. The Constitution belongs to the 
people, not to the Supreme Court. As a result, the American people must 
have the opportunity to decide whether their Constitution should allow 
Congress to protect the flag.
  The amendment we introduce today is as simple as it can be. It 
states: ``The Congress shall have power to prohibit the physical 
desecration of the flag of the United States.'' Unfortunately, 
simplicity does not prevent distortion, either by negligence or 
intention. Critics and some in the media have led many to believe that 
this amendment by itself bans flag desecration. It does not. In fact, 
should Congress propose and the states ratify this amendment, it might 
not result in any change in the law at all. That would be up to 
Congress and the people we represent to decide.
  The issue is that today Congress is today prohibited by the Supreme 
Court from passing laws that protect the flag even if 100 percent of 
the American people wanted those laws and the Congress was ready to 
enact them.
  The American people should be given the opportunity to decide whether 
they want their Constitution to allow their Congress to pass laws 
protecting the American flag. That is the way a representative 
democracy like ours should function. The Supreme Court distorted that 
process and this amendment will correct the Court's error. I urge my 
colleagues on both sides of the aisle, as many of you have done in the 
past, to support this amendment and to give this decision back to the 
American people.

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