[Congressional Record (Bound Edition), Volume 152 (2006), Part 10]
[Senate]
[Pages 12876-12878]
[From the U.S. Government Publishing Office, www.gpo.gov]




                       FLAG DESECRATION AMENDMENT

  Mr. REED. Mr. President, yesterday I opposed Senate Joint Resolution 
12, which would have created a constitutional amendment allowing 
Congress to ban desecration of the flag.
  As a graduate of the U.S. Military Academy and a former officer in 
the

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Army, I am deeply offended when people burn or otherwise abuse this 
precious national symbol.
  I also believe, however, that the values and beliefs that the 
American flag represents are more important than the cloth from which 
this symbol was created. Prominent among these beliefs are the right to 
voice views that are unpopular, and the right to protest. In fact, 
these fundamental values, preserved by our Constitution, have 
distinguished our Nation for more than 200 years. The Framers 
understood that democracy cannot thrive, or even survive, without 
freedom of expression. Colin Powell has rightfully said, ``The first 
amendment exists to ensure that freedom of speech and expression 
applies not just to that with which we agree or disagree, but also that 
which we find outrageous. 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 oppose this amendment not because I condone desecration of our 
flag, but because I celebrate the values our flag represents. Flag 
burning is despicable. However, the issue is whether we should amend 
our great charter document, the Constitution, to proscribe it.
  In The Federalist, James Madison declared that the Constitution 
should be amended for ``certain great and extraordinary occasions.'' 
Except for the prohibition amendments, since the adoption of the Bill 
of Rights, we have only amended the Constitution for ``great and 
extraordinary occasions:'' abolishing slavery and giving African 
Americans the right to vote; extending voting rights to women; and 
regulating elections and the tenure of the Presidency. Of the 27 
amendments, 17 protect individual rights and liberties. In fact, we 
have never amended the Constitution to constrict rights that other 
amendments already guarantee.
  So are we facing a ``great and extraordinary occasion'' justifying 
the use of a constitutional amendment? I would argue no.
  First, an amendment permitting government restraints on free 
expression cannot compel loyalty to or love for either our country or 
our flag. The proposed amendment would pronounce to the world that we 
value free speech, except when it offends, that we tolerate free 
expression, except when it is demoralizes.
  Second, is this a problem needing such strong medicine? Are we facing 
an epidemic of flag burnings? In fact, over the past 10 years, only 7 
incidents of flag desecration have occurred per year on average, most 
of which have been successfully prosecuted under laws prohibiting 
vandalism, theft, disorderly conduct, and disturbance of peace. Indeed, 
passing such an amendment would probably do more to promote flag 
burning by malcontents than any other action this Congress could take.
  Third, proponents of such an amendment declare that it would boost 
the morale of our troops and help restore some of the American values 
so basic to the fabric of our country. But, as one veteran recently 
wrote, ``I did not believe then, nor do I believe now, that I was 
defending just a piece of geography, but a way of life. If this 
amendment becomes a part of our Constitution, this way of life will be 
diminished.'' I cannot help but believe that a more appropriate 
expression of support for our troops would be providing them with the 
equipment they need in the field, better benefits for their families, 
and an adequately funded medical system at home.
  Although I oppose a constitutional amendment, I did support an 
alternative approach offered by Senator Durbin. Senator Durbin's 
amendment contained two elements. First, it would have created a 
statutory prohibition against desecration of our flag. This part of his 
amendment was drafted to follow the guidance of the 2003 Supreme Court 
decision in Virginia v. Black, which upheld a Virginia law banning 
cross burning that is intended to intimidate. The Durbin amendment took 
a similar approach and prohibited desecration of the flag when it is 
intended to incite violence. The Durbin amendment also would have 
promoted respect for families of deceased members of the Armed Forces 
by prohibiting demonstrations at their funerals. The amendment was 
narrowly tailored to make these disrespectful demonstrations 
punishable.
  In sum, debating a constitutional amendment on desecration of the 
flag, although politically popular, is not how the Senate should be 
spending its few remaining legislative weeks. But this is a campaign 
year, and the majority appears to want the Senate to spend time on 
topics which defer and deflect us from concentrating finding solutions 
to pressing issues facing our Nation: restoring fiscal discipline, 
creating safe and affordable housing for working families, securing our 
borders, expanding health insurance coverage to the uninsured, ensuring 
students have the skills and tools to compete in an ever-expanding 
global economy, and redeploying our troops as quickly as possible out 
of Iraq. Unfortunately, the majority has provided limited time to 
debate most of these issues.
  I hope that with the rapidly dwindling number of days left in this 
session we will work to address the very real concerns that impact 
American families every day. I fear, however, that this debate is only 
a harbinger of what is to come and very clearly signals why we need a 
new direction.
  Mr. DORGAN. Mr. President, 17 years ago the U.S. Supreme Court, in a 
5-to-4 decision, struck down a Texas flag protection statute. The 
Supreme Court ruled that burning an American flag was a form of 
``speech,'' and therefore protected under the first amendment of the 
Constitution.
  I disagreed with the Court's decision then and I still do. I don't 
believe that the act of desecrating a flag is an act of speech. And I 
believe that our flag, as our national symbol, can and should be 
protected by law.
  In the intervening years since the Supreme Court decision, I have 
supported Federal legislation that would make flag desecration illegal. 
Yet on several occasions, I have also voted against amendments to the 
Constitution to do the same.
  I voted that way because, while I believe that flag desecration is 
despicable conduct that should be prohibited by law, I also believe 
that amending our Constitution is a step that should be taken only 
rarely, and then only as a last resort.
  In the past year I have once again reviewed in detail nearly all of 
the legal opinions and written materials published by constitutional 
scholars and courts on all sides of this issue.
  After that review, I have concluded that there remains a way to 
protect our flag without having to alter the Constitution of the United 
States. That is why I have cosponsored S. 1370, a bipartisan piece of 
legislation introduced by Senator Bennett of Utah.
  S. 1370 protects the flag by criminalizing flag desecration when its 
intended purpose is to incite violence. This is the same standard which 
makes it illegal to falsely cry ``fire'' in a crowded theater. Reckless 
speech that is likely to cause violence is not protected under the 
``fighting words'' standard, long recognized by the Supreme Court of 
the United States. The Congressional Research Service believes that 
this type of statute will be upheld by the U.S. Supreme Court.
  Last night, I voted for an amendment offered by Senator Durbin, which 
incorporates many of the provisions of S. 1370, the bipartisan bill of 
which I am a cosponsor. The Durbin amendment would also prohibit the 
disruption of military funerals by demonstrators. This amendment would 
protect the flag, but do so without altering the Constitution.
  I know that supporters of a constitutional amendment will be 
disappointed by my decision to support this statutory remedy to protect 
the flag, rather than support an amendment to the U.S. Constitution. I 
know they are impatient to correct a decision by the Supreme Court that 
they and I believe was wrong.
  I have wrestled with this issue for a long time, and I respect those 
who passionately believe that we must amend the Constitution to protect 
the flag.
  More than 11,000 constitutional amendments have been proposed since 
our Constitution was ratified. However, since the ratification of the 
Bill of

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Rights in 1791, only 17 amendments have been enacted.
  Protecting the American flag can be accomplished without amending the 
Constitution, and that is a critically important point. I believe that 
future generations, and our founding fathers, would agree that it is 
worthwhile for us to find a way to protect our flag without altering 
the Constitution.

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