[Congressional Record (Bound Edition), Volume 150 (2004), Part 9]
[Senate]
[Pages 11974-11976]
[From the U.S. Government Publishing Office, www.gpo.gov]




             NATIONAL PLEDGE OF ALLEGIANCE TO THE FLAG DAY

  Mr. WARNER. Mr. President, I ask unanimous consent that the Senate 
proceed to the immediate consideration of S. Res. 378, which was 
submitted earlier today by Senator Cornyn.
  The PRESIDING OFFICER. The clerk will report the resolution by title.
  The legislative clerk read as follows:

       A Senate resolution (S. Res. 378) designating June 14, 
     2004, as ``National Pledge of Allegiance to the Flag Day.''

  There being no objection, the Senate proceeded to consider the 
resolution.
  Mr. CORNYN. Mr. President, I am pleased that the Senate will approve 
S. Res. 378, designating today--June 14, 2004--as the National Pledge 
of Allegiance to the Flag Day.
  The resolution, which I introduced earlier today, is cosponsored by 
several of my fellow Judiciary Committee members--Senators Feinstein, 
Craig, Grassley, Chambliss, Graham of South Carolina, and DeWine. I 
thank them.
  For Americans across the land, today is a special day.
  First of all, today is Flag Day. This morning, I was honored to 
attend a Flag Day commemoration event at VFW Post 2494, located in the 
city of Grand Prairie in my beloved home State of Texas. Flag Day is 
the anniversary of the Flag Resolution of 1777. It was officially 
established in a proclamation by President Woodrow Wilson on May 30, 
1916, and on August 3, 1949, President Harry S. Truman signed an act of 
Congress designating June 14 of each year as National Flag Day.
  I look forward to Flag Day every year, because--as today's resolution 
notes--Flag Day gives Americans across the land the opportunity to 
remember and reaffirm that the United States flag is a unique symbol of 
the United States and its ideals. Millions of Americans instinctively 
look to the United States flag with reverence, in times of national 
crisis and triumph alike. No other American symbol has been as 
universally honored as the United States flag. The United States flag 
has always played a unique role in honoring the men and women of the 
Armed Forces who have died in defense of the United States. To the 
countless families of loved ones who have died in defense of the United 
States, the United States flag is a treasured possession and a poignant 
memory of their loss.
  But today is also special for another reason. As the resolution also 
notes, today is the 50th anniversary of the modern version of the 
Pledge of Allegiance. The pledge has come under attack in recent years, 
however. Two years ago, a three-judge panel of the U.S. Court of 
Appeals for the Ninth Circuit, the Federal court of appeals based in 
San Francisco, ruled in the case of Newdow v. United States Congress, 
328 F.3d 466 (9th Cir. 2002), that the establishment clause of the 
first amendment of the Constitution forbids public school teachers from 
leading willing students in the voluntary recitation of the Pledge of 
Allegiance, simply because the pledge confirms that our Nation was 
founded ``under God.''
  Most Americans were alarmed by the decision, and rightly so. In 
response, a majority of the Senate subcommittee on the Constitution, 
Civil Rights and Property Rights filed the first amicus brief in the 
U.S. Supreme Court defending the pledge on the merits. The Senate legal 
counsel also filed a brief defending the pledge on behalf of the entire 
U.S. Senate. Clearly, members of both parties reject the views of the 
Ninth Circuit, the ACLU, and Americans United for the Separation of 
Church and State, and instead believe in the constitutionality of the 
Pledge of Allegiance.
  Just last week, the subcommittee convened a hearing, entitled 
``Beyond the Pledge of Allegiance: Hostility to Religious Expression in 
the Public Square.'' At that hearing, scholars testified that our 
courts have become so hostile to democracy and to religious expression 
that they object even to patriotic references to God, such as those 
contained in the pledge.
  Let us be clear: There is nothing unconstitutional about pledging 
allegiance to the flag. And thankfully, the U.S. Supreme Court reversed 
the Ninth Circuit decision in the Newdow case just this morning.
  The Court did so, however, solely on procedural grounds--leaving for 
another day a determination by the Supreme Court as to whether it 
agrees with the Ninth Circuit's decision striking down the Pledge as 
unconstitutional.
  I am glad to see that at least three members of the Supreme Court--
Chief Justice Rehnquist, Justice O'Connor, and Justice Thomas--
specifically acknowledged the constitutionality of the pledge in their 
opinions this morning. Their expressions follow a long line of 
statements in previous Supreme Court decisions supporting the Pledge. 
See, e.g., Engel v. Vitale, 370 U.S. 421, 440 n.5 (1962) (Douglas, J., 
concurring) (``The Pledge of Allegiance . . . in no way run[s] contrary 
to the First Amendment but recognize[s] only the guidance of God in our 
national affairs.'') (quotations and citations omitted); Sch. Dist. of 
Abington v. Schempp, 374 U.S. 203, 304 (1963) (Brennan, J., concurring) 
(``The reference to divinity in the revised pledge of allegiance . . . 
may merely recognize the historical fact that our Nation was believed 
to have been founded `under God.' Thus reciting the pledge may be no 
more of a religious exercise than the reading aloud of Lincoln's 
Gettysburg Address, which contains an allusion to the same historical 
fact.''); Lynch v. Donelly, 465 U.S. 668, 676 (1984) (``There is an 
unbroken history of official acknowledgment by all three branches of 
government of the role of religion in American life from at least 1789 
. . . [E]xamples of reference to our religious heritage are found . . . 
in the language `One Nation under God,' as part of the Pledge of 
Allegiance to the American flag. That pledge is recited by many 
thousands of public school children--and adults--every year.''); 
Wallace v. Jaffree, 472 U.S. 38, 78 n.5 (1985) (O'Connor, J., 
concurring) (``In my view, the words `under God' in the Pledge . . . 
serve as an acknowledgment of religion with `the legitimate secular 
purposes of solemnizing public occasions, [and] expressing confidence 
in the future.'''); County of Allegheny v. ACLU, 492 U.S. 573, 602-3 
(1989) (``Our previous opinions have considered in dicta the motto and 
the pledge, characterizing them as consistent with the proposition that 
government may not communicate an endorsement of religious belief.''); 
see also Sherman v. Community Consolidated Sch. Dist. 21, 980 F.2d 437 
(7th Cir. 1992) (upholding constitutionality of school district policy 
providing for voluntary recitation of the Pledge).
  However, the other five Justices of the Supreme Court--Justices 
Stevens, Kennedy, Souter, Ginsburg, and Breyer--did not see fit to join 
the other

[[Page 11975]]

three Justices in supporting the constitutionality of the pledge. They 
appear to have remained largely silent on the issue. I hope that they 
are not sending a signal with their silence--a signal that they may 
strike down the pledge in some future case. Certainly, by reversing the 
Ninth Circuit on solely procedural grounds, they effectively reserve 
for themselves the opportunity to strike down the pledge in a future 
case.
  The majority opinion does state that, ``as its history illustrates, 
the Pledge of Allegiance evolved as a common public acknowledgement of 
the ideals that our flag symbolizes. Its recitation is a patriotic 
exercise designed to foster national unity and pride in those 
principles.'' This passage suggests that the majority would uphold the 
Pledge of Allegiance against constitutional attack under the 
establishment clause. I hope that that is ultimately what the Court 
will do. I hope that the Court will ultimately vote to uphold and 
protect the Pledge of Allegiance.
  I am not so optimistic about the Court voting to protect the flag 
itself, however--as I wrote in an op-ed published in the Fort Worth 
Star-Telegram just this morning, a copy of which I ask unanimous 
consent be printed in the Record at the conclusion of my remarks.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  (See exhibit 1.)
  Mr. CORNYN. To be sure, from the founding, of our Nation until 1989, 
the power to protect the flag was not in doubt. In Smith v. Goguen, 
1974, the U.S. Supreme Court held, in a decision authored by Justice 
Lewis Powell, that ``nothing prevents a legislature from defining with 
substantial specificity what constitutes forbidden treatment of United 
States flags.'' Justice Byron White stated in that same case that 
``[i]t would be foolishness to suggest that the men who wrote the 
Constitution thought they were violating it when they specified a flag 
for the new Nation. . . . There would seem to be little question about 
the power of Congress to forbid the mutilation of the Lincoln Memorial. 
. . . The Flag is itself a monument, subject to similar protection.'' 
In Street v. New York, 1969, Chief Justice Earl Warren wrote that ``the 
States and Federal Government do have the power to protect the flag 
from acts of desecration and disgrace.'' Justice Hugo Black wrote in 
that same case that ``[i]t passes my belief that anything in the 
Federal Constitution bars a State from making the deliberate burning of 
the American Flag an offense.'' And Justice Abe Fortas noted that ``the 
States and the Federal Government have the power to protect the flag 
from acts of desecration committed in public.'' More recently, Chief 
Justice William Rehnquist, Justice John Paul Stevens, and Justice 
Sandra Day O'Connor have all expressed their belief that nothing in the 
first amendment prohibits protection of the flag.
  Accordingly, until recently, 48 States have had laws on the books 
protecting the flag--most of them patterned after the Uniform Flag Act 
of 1917. The Federal Government enacted its own law in 1967. And 
Congress reaffirmed that law in 1989 with the support of 91 Senators.
  This historic power to protect the flag was eviscerated in 1989, 
however when the U.S. Supreme Court issued the first of two decisions, 
both decided by a bare 5 to 4 majority, declaring that flag desecration 
constitutes speech protected by the first amendment. See Texas v. 
Johnson, 1989, and United States v. Eichman, 1990.
  Legal scholars agree that the flag protection amendment is the only 
way to restore the law as it existed for most of our Nation's history. 
Constitutional amendments are the only way for the American people to 
reverse judicial constitutional decisions they reject. The Eleventh, 
Fourteenth, Sixteenth, Nineteenth, Twenty-Fourth, and Twenty-Sixth 
amendments were all ratified in order to reverse judicial decisions 
with which the American people disagreed.
  So I am pleased to be an original cosponsor of the flag protection 
amendment, S.J. Res. 4. That resolution was introduced by Senator Hatch 
and by my Democrat cosponsor of today's resolution, Senator Feinstein. 
The amendment states simply that ``[t]he Congress shall have power to 
prohibit the physical desecration of the flag of the United States.'' I 
am proud to be an original cosponsor of the flag protection amendment, 
because I firmly believe that the flag occupies a unique place in our 
Nation and deserves constitutional recognition as such.
  Of course, the first amendment guarantees freedom of speech, and 
thankfully so. And of course, the requirement that constitutional 
amendments be approved by two-thirds of each House of Congress and 
three-fourths of the States guarantees that the liberties we hold dear 
will not be taken away, just because we have acted today to protect the 
U.S. flag against physical desecration.
  Moreover, the first amendment itself already contains exceptions. For 
example, the law does not allow individuals to yell ``Fire!'' in a 
crowded theater--even though such laws do impose a burden on the 
freedom of speech, albeit a minor one. Likewise, the vast majority of 
Americans agree that the Nation is better off when our flag is 
protected.
  The House has approved the flag protection amendment five times in 
the past five Congresses--including just last year. All 50 State 
legislatures have approved resolutions asking Congress to give them the 
opportunity to vote on the amendment. The last time that the amendment 
was brought to a vote on the Senate floor, in 2000, 63 Senators voted 
in favor of it--just four votes shy of the necessary two-thirds.
  I urge my colleagues at least to give the States the opportunity to 
consider this amendment. And I urge my colleagues at least to give 
constitutional recognition to the importance of the United States flag 
to millions of Americans--even if they ultimately would oppose 
implementing legislation to protect the flag against physical 
desecration.
  After all, the flag protection amendment does nothing more than to 
recognize that the United States flag occupies a unique position as the 
symbol of our Nation and, accordingly, deserves constitutional 
recognition as such. The amendment would empower Congress to take 
action to protect the flag, but it would not require Congress to do 
anything whatsoever.
  There are many ways to express one's political views. But there is 
only one United States flag--and it deserves constitutional protection.
  I look forward to the debate over the flag protection amendment, and 
I look forward to a decision of the U.S. Supreme Court affirming for 
all time the constitutionality of the Pledge of Allegiance.
  Until then, I am pleased that, because of the Senate's action today, 
today will forever be known as the National Pledge of Allegiance to the 
Flag Day.

                               Exhibit 1

           [From the Fort Worth Star-Telegram, June 14, 2004]

             Our Banner Deserves Constitutional Protection

                            (By John Cornyn)

       For Americans everywhere, Flag Day is special. And today we 
     mark not only the annual celebration of the U.S. flag but 
     also the 50th anniversary of the modern Pledge of Allegiance.
       The U.S. flag is a uniquely powerful symbol of our nation 
     and of our commitment to freedom and democracy. Therefore, it 
     is deeply regrettable that our democratic system of 
     government to date has not properly protected it.
       A June 2 hearing of the Senate subcommittee on the 
     Constitution, Civil Rights and Property Rights got to the 
     heart of this problem.
       Legal scholars testified that our courts have become so 
     hostile to democracy and to religious expression that even 
     patriotic references to God, such as those contained in the 
     Pledge of Allegiance, are being wrongly struck down by the 
     courts.
       Let's be clear: There is nothing unconstitutional about 
     pledging allegiance to the flag. Yet a federal appeals court 
     in San Francisco struck down the pledge anyway simply because 
     it acknowledges that our nation was founded and exists 
     ``under God.''
       The U.S. Supreme Court will soon decide whether the First 
     Amendment forbids schoolteachers across America from leading 
     students in voluntary recitation of the pledge.

[[Page 11976]]

       The vast majority of Americans believe that the pledge is 
     constitutional and reject the views of the 9th Circuit Court 
     and the American Civil Liberties Union. A majority of the 
     Constitution subcommittee members filed the first amicus 
     brief in the Supreme Court defending the pledge on its 
     merits.
       Many legal observers predict that the Supreme Court will 
     reverse the 9th Circuit's decision. The same cannot be said, 
     however, for protecting the flag itself.
       The ability to protect the flag against physical 
     desecration was not in doubt throughout most of American 
     history. For example, in 1974, the Supreme Court held that 
     ``nothing prevents a legislature from defining with 
     substantial specificity what constitutes forbidden treatment 
     of United States flags.''
       Congress' power to protect the flag has also been supported 
     by Chief Justices Earl Warren and William Rehnquist and 
     Justices Byron White, Hugo Black, Abe Fortas, John Paul 
     Stevens and Sandra Day O'Connor.
       This power, however, was eviscerated in 1989 when the 
     Supreme Court decided by a 5-4 majority that flag desecration 
     constitutes speech protected by the First Amendment.
       The flag deserves constitutional protection, and legal 
     scholars agree that the Flag Protection Amendment is the only 
     way to restore the law as it existed for most of our nation's 
     history. That is why the Constitution subcommittee recently 
     approved the amendment, and the full committee is scheduled 
     to vote on it this month.
       The First Amendment guarantees freedom of speech, and 
     rightfully so. The requirement that constitutional amendments 
     be approved by two-thirds of each chamber of Congress and 
     three-fourths of the states guarantees that the liberties we 
     hold dear will not be taken away just because the American 
     people decide to take action to protect the U.S. flag against 
     physical desecration.
       The House has approved the Flag Protection Amendment five 
     times in the past five Congresses--including just last year. 
     All 50 state legislatures have approved resolutions asking 
     Congress to give them the opportunity to vote on the 
     amendment.
       The last time that the amendment was brought to a vote on 
     the Senate floor, in 2000, 63 senators voted in favor of it--
     just four votes shy of the necessary two-thirds. This year, 
     the prospects for passage could be even better.
       In times of national crisis and triumph alike, it is the 
     U.S. flag that Americans look to with reverence. No other 
     American symbol has been as universally honored.
       In a time of war, it is even clearer that the flag plays a 
     unique role in honoring the men and women of the military who 
     died for the ideals that the flag represents.
       If a soldier dies in defense of our nation, the United 
     States gives the family a flag in honor of that service. To 
     countless families, the flag is a treasured possession and a 
     poignant memory of their loss.
       There are many ways to express one's political views. But 
     there is only one United States flag--and it deserves 
     constitutional protection.

  Mr. REID. Mr. President, if I could proceed, it is very appropriate 
that today--I do not know if the distinguished Chair knows this, being 
as busy as he has been all day--the Supreme Court upheld our being able 
to pledge allegiance to the flag. They did it on a procedural grounds, 
but I do not think it matters. We won.
  Mr. WARNER. I thank the distinguished leader for advising the Senate 
of that. I had heard of that earlier today. I think it is most 
appropriate that our colleague from Texas has acted. The Senate will 
act without any further delay.
  I ask unanimous consent that the resolution be agreed to, the 
preamble be agreed to, the motion to reconsider be laid upon the table, 
and that any statements relating to this matter be printed in the 
Record.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The resolution (S. Res. 378) was agreed to.
  The preamble was agreed to.
  The resolution, with its preamble, reads as follows:

                              S. Res. 378

       Whereas the United States flag is a unique symbol of the 
     United States and its ideals;
       Whereas millions of Americans instinctively look to the 
     United States flag with reverence, in times of national 
     crisis and triumph alike;
       Whereas no other American symbol has been as universally 
     honored as the United States flag;
       Whereas the United States flag has always played a unique 
     role in honoring the men and women of the Armed Forces who 
     have died in defense of the United States;
       Whereas to the countless families of loved ones who have 
     died in defense of the United States, the United States flag 
     is a treasured possession and a poignant memory of their 
     loss;
       Whereas the Second Continental Congress adopted the Stars 
     and Stripes as the official flag of the United States on June 
     14, 1777;
       Whereas Congress has designated June 14 as Flag Day (36 
     U.S.C. 110);
       Whereas the Pledge of Allegiance is recited by millions of 
     Americans who wish to demonstrate their loyalty and 
     allegiance to the flag of the United States and to the 
     republic for which it stands;
       Whereas President Eisenhower signed into law the modern 
     version of the Pledge of Allegiance on June 14, 1954 (Joint 
     Resolution entitled ``Joint Resolution to amend the pledge of 
     allegiance to the flag of the United States of America'', 
     Public Law 83-396, approved June 14, 1954), making Flag Day, 
     2004, the 50th anniversary of the modern version of the 
     Pledge of Allegiance;
       Whereas a 3-judge panel of the United States Court of 
     Appeals for the Ninth Circuit ruled in Newdow v. United 
     States Congress, 328 F.3d 466 (9th Cir. 2002), that the words 
     ``under God'' in the Pledge of Allegiance violate the 
     establishment clause of the first amendment of the 
     Constitution of the United States when recited voluntarily by 
     students in public schools;
       Whereas on June 14, 2004, the Supreme Court issued a 
     decision, Elk Grove Unified School District v. Newdow (docket 
     number 02-1624), that reversed the decision of the United 
     States Court of Appeals for the Ninth Circuit in the Newdow 
     case solely on procedural grounds, but that leaves unresolved 
     whether the Supreme Court agrees with the decision of the 
     United States Court of Appeals for the Ninth Circuit to 
     strike down the Pledge of Allegiance as unconstitutional;
       Whereas Congress, in 1954, believed that it was acting 
     constitutionally when it revised the Pledge of Allegiance;
       Whereas the Senate believes that the Pledge of Allegiance, 
     as revised in 1954 and as recodified in 2002 (4 U.S.C. 4), is 
     a fully constitutional expression of patriotism; and
       Whereas the Senate has twice acted by unanimous consent to 
     authorize the Senate Legal Counsel to defend the 
     constitutionality of the Pledge of Allegiance in the Federal 
     courts (Senate Resolution 134, 108th Congress, agreed to May 
     8, 2003, and Senate Resolution 292, 107th Congress, agreed to 
     June 26, 2002): Now, therefore, be it
       Resolved, That the Senate--
       (1) supports and reveres the United States flag and the 
     Pledge of Allegiance;
       (2) strongly disapproves of the decision by the 3-judge 
     panel of the United States Court of Appeals for the Ninth 
     Circuit in Newdow v. United States Congress; and
       (3) hereby designates June 14, 2004, as ``National Pledge 
     of Allegiance to the Flag Day''.

                          ____________________