[Congressional Record Volume 163, Number 101 (Wednesday, June 14, 2017)]
[Senate]
[Page S3491]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. DAINES (for himself, Mr. Graham, Mr. Cornyn, Mr. Heller, 
        Mr. Hatch, Mr. Crapo, Mr. Grassley, Mr. Isakson, and Mr. 
        Rubio):
  S.J. Res. 46. A joint resolution proposing an amendment to the 
Constitution of the United States authorizing the Congress to prohibit 
the physical desecration of the flag of the United States; to the 
Committee on the Judiciary.
  Mr. DAINES. Mr. President, I ask unanimous consent that the text of 
the bill be printed in the Record.
  There being no objection, the text of the bill was ordered to be 
printed in the Record, as follows:
  Mr. DAINES. Mr. President, today, June 14, 2017 marks the 240th 
observance of ``Flag Day,'' a day which commemorates the adoption of 
the flag of the United States by a resolution of the Second Continental 
Congress in 1777. Deeply symbolic, our flag honors the sovereignty of 
each of our Nation's 50 States and the great sacrifices many Americans 
have made to uphold its bedrock principles of freedom and liberty. The 
Department of Veterans Affairs estimates that over one million military 
service members have given their lives in the line of duty under our 
flag. Title 4 of United States Code, ``The Flag Code'' sets specific 
requirements for the handling and display of the flag, as a sign of 
respect to the symbol of our Nation.
  In 1989, with a disappointing 5-4 vote, the U.S. Supreme Court held 
in Texas v. Johnson that the desecration of the United States flag was 
a form of free speech under the First Amendment to the Constitution. 
Here, Chief Justice Rehnquist rightly observed in his dissent that 
``the flag is not simply another `idea' or `point of view' competing 
for recognition in the marketplace of ideas.'' Justice Kennedy, in his 
majority concurrence, recognized that many would be dismayed by the 
court's decision, and himself called the result distasteful. Yet, he 
explained that the court was bound to its decision according to the 
provisions of the Constitution. The Supreme Court reaffirmed this 
decision in United States v. Eichman in 1990. It ruled, again by 5-4 
vote, that as Constitutional free speech, desecration of the flag 
cannot be prohibited by Federal or State statute. At the time of the 
Supreme Court's ruling, 48 of the 50 States had enacted statutes 
prohibiting desecration of the United States Flag.
  My resolution proposes an amendment to the Constitution, establishing 
Congressional authority to prohibit the desecration of the flag of the 
United States. This resolution initiates the process to amend the 
Constitution, which must be agreed to by two-thirds of both houses of 
Congress, and ratified by three-fourths of the States. A high bar to 
meet, similar legislation passed the House of Representatives in 2006, 
and fell short of passage in the Senate by only one vote.
  My resolution provides Congress with the authority that the Supreme 
Court decided it lacked in Texas v. Johnson and United States v. 
Eichman. This should remove any doubt in the mind of the Supreme Court 
on the Constitutionality of acts of flag desecration. A matter which 
has been long settled in the Court of public opinion.

                              S.J. Res. 46

       Resolved by the Senate and House of Representatives of the 
     United States of America in Congress assembled   (two-thirds 
     of each House concurring therein), That the following article 
     is proposed as an amendment to the Constitution of the United 
     States, which shall be valid to all intents and purposes as 
     part of the Constitution when ratified by the legislatures of 
     three-fourths of the several States within 7 years after the 
     date of its submission by the Congress:

                              ``Article--

       ``The Congress shall have power to prohibit the physical 
     desecration of the flag of the United States.''.

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