[Congressional Record (Bound Edition), Volume 152 (2006), Part 9]
[Senate]
[Pages 12555-12557]
[From the U.S. Government Publishing Office, www.gpo.gov]




            CONSTITUTIONAL AMENDMENT TO BAN FLAG DESECRATION

  Mr. DODD. Mr. President, I rise to speak about the pending matter 
before us, S.J. Res. 12 which would amend the Constitution of the 
United States. There are only seventeen words in the amendment: The 
Congress shall have power to prohibit the physical desecration of the 
flag of the United States. These seventeen words have great 
significance.
  I hold dear the great genius of our wonderful Constitution. I have 
carried this tattered copy with me every day for as long as I have been 
a Member of this body. It was given to me by my seatmate here, the 
senior Senator Bryd from West Virginia. I treasure this copy of that 
document for many reasons, not the least of which is because it was 
given to me by Senator Byrd, but also because I find myself referring 
to it almost on a daily basis.
  This copy includes not only the Constitution and the Bill of Rights, 
but also the Declaration of Independence. It is a part of my daily 
wardrobe, be it weekends or during the week here. It is a reminder of 
how fortunate we are to live in a country that has, as its founding 
document, a set of words, language, that not only speaks to the hopes 
and dreams of all Americans, but even beyond the borders of this 
country, because the Founders, the Framers of the Constitution, spoke 
of eternal truths in this document.
  While the language applies to only those who live in this country, 
their words have, of course, inspired millions of other people all 
across the globe. It is not uncommon to read the constitutions of 
developing countries and find literally verbatim the language in our 
own U.S. Constitution. This is a great tribute to not only the Framers 
but to those who came after them. Those that have upheld, supported, 
and defended--

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as millions of Americans have, some with the ultimate sacrifice--their 
lives, to protect and defend this country and the principles and ideals 
on which it was founded. The Constitution has sustained itself now for 
the more than 200 years. Giving us the power to be free and independent 
people.
  So this great genius of our Constitution enshrines in it the words of 
the eternal aspirations of humanity. I believe that Alexander Hamilton 
laid out a framework for constitutional amendments and how we ought to 
think of this remarkable document that serves as the basis of all that 
we believe and hold dear when he said:

       The sacred rights of mankind are not to be rummaged for, 
     among old parchments, or musty records. They are written, as 
     with a sunbeam in the whole volume of human nature, by the 
     hand of the divinity itself; and can never be erased or 
     obscured by mortal power.

  It is a rather beautiful quotation that I think captures what many of 
us believe to be the case when we talk about our Constitution, talking 
about the hand of divinity itself helping scribe these words, that it 
is ``not to be rummaged for, among old parchments, or musty records'' 
but rather ``written, as with a sunbeam in the whole volume of human 
nature.''
  So it is important, when we consider this document and particularly 
the Bill of Rights, which speak to our personal freedoms, that we 
consider all and any proposal to challenge the words included in those 
10 amendments.
  There have been over 11,000 attempts in the last 200 years to amend 
our Constitution. Throughout the years, there have been only a handful 
of those proposals that have actually been adopted, usually when there 
was a described constitutional crisis before us. We did so to extend 
the right to vote to women and we did so to abolish slavery.
  These are just two examples throughout our history when we have found 
it appropriate and proper to amend the Constitution, but always when we 
felt there was an underlying principle dealing with basic fundamental 
rights.
  Now, we all know that the horrible act of flag burning does occur. We 
have all seen the visions on television describing some group in some 
country or another that decides it is going to burn the American flag. 
We all know how we feel when we see that. But, of course, all my 
colleagues know--and I am sure the overwhelming majority of American 
citizens know--we can not change their behavior by altering the 
Constitution. As annoying as it is, as troubling as it is, and how I 
know we all react to it, we can not affect those particular acts of 
desecration.
  Today we are talking about these acts that occur in this country. Let 
me quickly say I think it is worthy to try to come up with some 
language statutorily to deal with this issue. But my hope is my 
colleagues, regardless of political persuasion, would think long and 
hard about what we are about to do here; and that is, to change the 
Constitution.
  A proposal similar to this one was offered in 1989, again in 1990, in 
1995, and in the year 2000. In every single case, the proposals have 
been rejected. I do not question any of my colleagues over their dismay 
and horror in watching our flag be desecrated. Yet, in every single 
instance, we have found it appropriate to reject an amendment to the 
Constitution. I would hope that would be the case again today.
  Mr. President, I fly the American flag every day at my home in 
Connecticut when I am there. I take great pride in doing so. In fact, 
my neighbors can always tell when I am home. I live in a house, an old 
schoolhouse built in 1853. It was the successor schoolhouse to where 
Nathan Hale taught in Connecticut. The Nathan Hale Schoolhouse is about 
150 yards from where I live in Connecticut. When that one-room 
schoolhouse became too small in the 1850s, they built a two-room 
schoolhouse that served the neighborhood where I live in East Haddam, 
CT, for almost 100 years until the 1940s. I bought that schoolhouse 
about 25 years ago, and it has been my family's home for a quarter of a 
century.
  My neighbors always know when I am home because I fly the American 
flag from that old schoolhouse. I take great pride in doing so. I don't 
just do it on Memorial Day or the Fourth of July or other national 
holidays, but every single day I am home. As a way of expressing my 
affection for what that flag means, what it stands for, and what it has 
meant to generation after generation of people in our great country.
  I will not take a back seat to anyone in my reverence for the flag, 
how important it is and what it means. But I also believe it is 
important to be a patriot, a true patriot, where we not only defend our 
flag but we also defend the Constitution and the Bill of Rights. That 
is really what is at risk here today, when we talk about this 
resolution. It is not so much the flag that is at risk but our Bill of 
Rights, if we attack this document because the passions of some get 
aroused over the acts of those who would desecrate our flag. That 
really is the issue before us.
  Let us have a statutory law but let us not attack this wonderful Bill 
of Rights of ours. The proposed amendment is made up of 17 words, 17 
words that would dramatically alter the importance of the Bill of 
Rights and diminish the freedoms provided by that document. I don't 
doubt the patriotism of any Member of this Chamber. I strongly believe 
we all love our country. We love our Constitution. We love our flag. In 
my view, desecration of the flag, as a symbol of our freedom, the 
Constitution, and our democracy, is deplorable and should not be 
tolerated. It goes without saying that every Member of Congress and the 
overwhelming majority of Americans consider flag burning to be 
offensive and abhorrent. That is to state the obvious. The question is 
not whether we deplore the desecration of the American flag but whether 
we are in some way going to desecrate the Constitution and the Bill of 
Rights. To truly honor our Nation and the people who have given their 
lives for it, we must not only protect our flag but the principles of 
freedom and justice that it stands for.
  I have often said when students ask me about the Constitution and the 
Bill of Rights and what it means, the first amendment of the Bill of 
Rights, which incorporates freedom of speech, really tests whether each 
and every one of us is willing to defend someone who would say 
something or do something we might find abhorrent. It is not whether we 
are willing to stand up and defend someone who says something we agree 
with but, rather, whether we understand the principles our Founders and 
Framers intended when they wrote the Constitution and the Bill of 
Rights, that we are willing to protect and defend the right of someone 
to say something that we totally disagree with and that we find 
offensive and abhorrent. That is the true test, not whether we are 
willing to stand up and applaud what someone says but whether our 
instincts are to deplore what they say but defend their right to say 
it. That is really what the first amendment is all about when freedom 
of speech is being invoked.
  Our Founding Fathers cautioned us to avoid situations like the one we 
are in today. James Madison advised that amendments to the Constitution 
should be limited to ``great and extraordinary occasions.'' 
Regrettably, some have not heeded Madison's cautionary words. Since 
1789 when the Congress first convened, there have been over 11,000 
proposals to amend the Constitution of the United States. Over sixty 
have been offered in this Congress alone. But the majority of our 
Nation's leaders have taken the words of Madison to heart, and they 
have not allowed this document to be altered. Since the ratification of 
the Bill of Rights, only 17 amendments have been successful. Moreover, 
despite all of the trials that this country has been through, no 
Congress has ever felt so compelled to doctor the Bill of Rights. It is 
remarkable when you consider the trials and tribulations we have been 
through.
  The act of burning our flag is unacceptable and condemnable. But the 
reality is that it is exceedingly rare as well. I did my best to find 
the reported incidences of flag burning throughout our history. I went 
back and examined as many possible cases as I could. We

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have found less than 200 cases since our Nation's founding and only a 
handful documented in the last few years. Where is the constitutional 
crisis? Where is the epidemic? Less than two hundred cases in more than 
200 years. Yet I would suspect that if we end up adopting this 
constitutional amendment and amend the Bill of Rights, there will be 
those, as the Senator from Illinois pointed out, who will consistently 
try to press against the envelope of the language of these 17 words to 
prohibit desecration of the flag.
  With all the other issues we need to grapple with, such as health 
care, education, the quality of life of our military men and women, and 
whether we ought to be doing more to increase the opportunities of 
people in this country. With all of the legitimate debates that ought 
to occur, it is shocking that we are taking several days of the 
Senate's time to debate an amendment to the Constitution where there is 
hardly any incidence or examples of a problem today. As I said, there 
have been less than 200 cases of flag desecration in more than 200 
years. Clearly, there is no extraordinary occasion, in my view, such 
that Madison spoke of warranting ratification of this amendment. We 
might feel disgusted by the act of flag burning, but we are clearly not 
faced, by any estimate, with a constitutional crisis.
  Proponents of this amendment say that tolerating even one burned flag 
is equivalent to acquiescence of such an act. I totally disagree. Our 
Nation is strong enough to tolerate a few errant acts, and this 
strength is the source of our democracy's greatness. It is the ability 
and willingness to tolerate acts like that on occasion that makes us a 
stronger and better people. Supporters of this amendment may believe 
this vote is a test of one's patriotism or love of country. On the 
contrary, the true measure of our faithfulness to the flag is our 
fidelity to the principles of freedom and justice that it represents. 
That is the ultimate test of one's patriotism.
  I would associate myself with the comments of a former colleague of 
ours, Bob Kerrey, Senator from Nebraska, who today is president of a 
fine university in New York. He is also a Medal of Honor winner for 
services as a Navy SEAL in Vietnam. I recall when this amendment was 
before us on several previous occasions, he would stand up and talk 
about what it meant for him to lose a limb in the uniform of our 
country defending our Nation, talking about how important it was to 
defend the Constitution. He articulated his opposition to this 
particular proposal in a recent Washington Post editorial in relation 
to September 11th with the following statement:

       Real patriotism cannot be coerced. Our freedom to speak was 
     attacked--not our flag. The former, not the latter, needs the 
     protection of our Constitution and our laws.

  There is no question in my mind that our flag will continue to serve 
as a symbol of our Nation's history--our founding principles of 
freedom, liberty, and justice--long after the conclusion of this debate 
on the floor of the Senate.
  Our former colleague, Senator John Glenn of Ohio, who served this 
Nation as a combat pilot in Korea, an astronaut, and as a colleague of 
ours in this body, put it very well:

       There is one way to weaken the fabric of your country, and 
     it is not through a few misguided souls burning our flag. It 
     is by retreating from the principles that the flag stands 
     for. And that will do more damage to the fabric of our Nation 
     than 1,000 torched flags could ever do.

  I believe history and future generations will judge us harshly, as 
they should, if we permitted those who would defile our flag to also 
defile our future and to defile the Bill of Rights. Let us leave the 
Constitution unsullied by proposals such as this which would needlessly 
restrict our liberties as a people.
  I will repeat again: The great genius of our Constitution is that it 
enshrines in word the eternal aspirations of humanity. We may try to 
amend it, but if we do so in a manner at odds with those aspirations, 
then we act at our peril and in folly.
  I repeat Alexander Hamilton's quote:

       The sacred rights of mankind are not to be rummaged for, 
     among old parchments, or musty records. They are written, as 
     with a sunbeam in the whole volume of human nature, by the 
     hand of the divinity itself; and can never be erased or 
     obscured by mortal power.

  In our quest to protect the flag, we must be careful not to undermine 
the principles that it stands for. Attacking the Bill of Rights, a 
document that has never been changed--not one comma, not one semicolon, 
not one word, since its ratification in 1791--undermines those 
principles. This is a time to bring our Nation together to focus on the 
important challenges we face today. We must face them as a nation, not 
as individuals, if we are going to prevail.
  At best, this amendment is another political stunt, I am afraid, 
aimed at dividing our Nation, inflaming the passions of our 
constituencies, make one party angry at another, one group of citizens 
angry at another. What worthwhile result has ever emerged from that 
kind of anger? What good has ever flowed from the passions provoked by 
appealing to the worst instincts in people? I have never seen a single 
benefit that has occurred as a result of that effort.
  Once again, we find ourselves inflaming passions over an issue that 
is nonexistent, the ``constitutional crisis'' of flag-burning. It is 
just not there. This would be a profound deviation from our past and 
chip away at our freedoms and liberties that we are working so hard to 
protect.
  Every generation is challenged with the responsibility of seeing to 
it that future generations will have the opportunities and benefits of 
our country. Those benefits and those opportunities flow very directly 
from the Constitution of the United States and, most particularly, from 
the Bill of Rights. I hope that we will be careful about this. We are 
not owners of this document, the Constitution; we are merely stewards 
of this document. We are charged with the responsibility during our 
tenure, on our watch, however long or brief it is, to see to it that 
these principles will be passed on to coming generations. To start 
fooling with them unnecessarily, I think, puts this document and what 
it stands for at risk.
  I hope our colleagues, when the vote occurs on this, will find it in 
their hearts and good conscience to leave the Bill of Rights alone. 
This is not a time that it needs to be amended.
  I yield the floor.

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