[Congressional Record (Bound Edition), Volume 152 (2006), Part 9]
[Senate]
[Pages 12607-12608]
[From the U.S. Government Publishing Office, www.gpo.gov]




                       FLAG PROTECTION AMENDMENT

  Mrs. FEINSTEIN. Mr. President, I rise as the main Democratic sponsor 
of this amendment. I have given this a lot of thought for a long time. 
I believe what we have before us is language that is essentially 
content neutral. It is on conduct--not speech. I will make that 
argument later on in my remarks, but I begin my remarks with how I came 
to believe that the American flag is something very special.
  For those of us who are westerners, the Pacific battles of World War 
II had very special significance.
  Reporters were not embedded, there was no television coverage, and 
the war in the Pacific was terrible--island battle after island 
battle--the death march at Guadalcanal, Tarawa, and onward.
  On the morning of February 24, 1945, I was a 12-year-old. I picked up 
a copy of the San Francisco Chronicle. There on the cover was the now 
iconic photograph done by a Chronicle photographer by the name of Joe 
Rosenthal, and it was a photograph of U.S. marines struggling to raise 
Old Glory on a promontory, a rocky promontory above Iwo Jima.
  For me--at that time as a 12-year-old--and for the Nation, the photo 
was a bolt of electricity that boosted morale amidst the brutal 
suffering of the Pacific campaign.
  The war was based on such solid ground and victory was so hard-
pressed that when the flag unfurled on the rocky promontory on Iwo 
Jima, its symbolism of everything courageous about my country was 
etched into my mind for all time. This photo cemented my views of the 
flag for all time.
  In a sense, our flag is the physical fabric of our society, knitting 
together disparate peoples from distant lands, uniting us in a common 
bond, not just of individual liberty but also of responsibility to one 
another.
  Supreme Court Justice Felix Frankfurter called the flag ``The symbol 
of our national life.'' I, too, have always looked at the flag as the 
symbol of our democracy, our shared values, our commitment to justice, 
our remembrance to those who have sacrificed to defend these 
principles.
  For our veterans, the flag represents the democracy and freedom they 
fought so hard to protect. Today there are almost 300,000 troops 
serving overseas, putting their lives on the line every day to fight 
for the fundamental principles that our flag symbolizes.
  The flag's design carries our history. My proudest possession is a 
13-star flag. When you look at this flag, now faded and worn, you see 
the detail of the 200-year-old hand stitching--and the significance of 
every star and stripe.
  The colors were chosen at the Second Continental Congress in 1777. We 
all know them well: Red for heartiness and courage; white for purity 
and innocence; blue for vigilance, perseverance, and justice. Even the 
number of stripes has meaning--13 for 13 colonies.
  Our flag is unique not only in the hearts and minds of Americans, but 
in our laws and customs as well. No other emblem or symbol in our 
Nation carries with it such a specific code of conduct and protocol in 
its display and handling.
  For example, Federal law specifically directs that the flag should 
never be displayed with its union down, except as a signal of dire 
distress or in instances of extreme danger to life or property.
  The U.S. flag should never touch anything beneath it: neither ground, 
floor, water, or merchandise. The flag must be lit at night. It should 
never be dipped to any person or thing. And the flag should never be 
carried horizontally but should always be carried aloft and free.
  The flag flies over our government buildings throughout the country. 
It flies over our embassies abroad, a silent but strong reminder that 
when in those buildings, one is on American soil and afforded all the 
protections and liberties enjoyed back home.
  Last December, I traveled to Iraq and met with some of the brave men 
and women in the armed forces that are serving there. We flew out of 
Baghdad on a C-130 that we shared with a flag-draped coffin accompanied 
by a military escort.
  The young man or woman in that coffin gave their life under the 
banner of this flag.
  In 1974, Justice Byron White wrote that:

       It is well within the powers of Congress to adopt and 
     prescribe a national flag and to protect the unity of that 
     flag. . . . [T]he flag is an important symbol of nationhood 
     and unity, created by the Nation and endowed with certain 
     attributes.

  Justice White continued:

       [T]here would seem to be little question about the power of 
     Congress to forbid the

[[Page 12608]]

     mutilation of the Lincoln Memorial or to prevent overlaying 
     it with words or other objects. The flag is itself a 
     monument, subject to similar protection.

  I echo the opinion of Justice White: ``The flag is itself a monument, 
subject to similar protection.''
  The American flag is our monument in cloth.
  The flag flying over our Capitol building today, the flag flying over 
my home here and in San Francisco, each of these flags, separated by 
distance but not symbolic value, is its own monument to everything 
America represents. And it should be protected as such.
  There is a sturdy historical and legal foundation for special 
protection for the flag. Constitutional scholars as diverse as Chief 
Justices William Rehnquist and Earl Warren and Associate Justices 
Stevens and Hugo Black have vouched for the unique status of the 
national flag.
  On June 14, 1777, the Continental Congress passed the first Flag Act:

       Resolved, That the flag of the United States be made of 
     thirteen stripes, alternate red and white; that the union be 
     thirteen stars, white in a blue field, representing a new 
     Constellation.

  Historically, the flag has been protected by statute. In 1989, 48 of 
our 50 States had statutes restricting flag desecration. However, that 
protection ended in 1989.
  That year the Supreme Court, by a vote of 5 to 4, struck down a Texas 
State law prohibiting the desecration of American flags in a manner 
that would be offensive to others in the Texas v. Johnson case.
  Although the Court held that the government has ``a legitimate 
interest in making efforts to `preserv[e] the national flag as an 
unalloyed symbol of our country,''' it nevertheless concluded that 
burning the flag constituted speech under the first amendment, and that 
the Texas statute outlawing flag desecration was an impermissible 
regulation of the content of a person's speech.
  Supreme Court Justice John Paul Stevens wrote in his dissent in 
Johnson that the flag is:

       a symbol of our freedom, of equal opportunity, of religious 
     tolerance, and of good will for other peoples who share our 
     aspirations.

  I agree with Justice Stevens.
  In response to the Johnson case, Congress passed the Flag Protection 
Act of 1989, which sought to ban flag desecration in a ``content-
neutral'' way that would be permitted by the courts. Nevertheless, the 
Supreme Court struck down that Federal statute as well.
  In that case, United States v. Eichman, the Supreme Court, by another 
5-to-4 vote, held that although the Federal statute prohibiting flag 
desecration did not limit speech based on content, which had been found 
unconstitutional in Johnson, the statute still violated the first 
amendment because Congress's intent in passing the statute was 
``related to the suppression of free expression.''
  The Supreme Court has spoken, and I do not wish to quarrel with its 
decisions.
  However, the Johnson and Eichman decisions make it clear that without 
a constitutional amendment no Federal statute protecting the flag will 
survive judicial review.
  Consequently, the only avenue available for restoring protection to 
the flag is to amend the Constitution. Otherwise, any legislation 
passed by Congress or State legislatures will simply be struck down.
  The Constitution itself prescribes instructions for its amendment 
when nepessary for the good of the Nation. And the Constitution is, 
after all, a living text that has been amended 27 times since its 
creation.
  I do not take amending the Constitution lightly. It is a serious 
business and we need to tread carefully. However, the change we seek to 
make is narrow, it is limited, and it is necessary.
  Some critics say we must choose between trampling on the flag and 
trampling on the first amendment. I strongly disagree.
  The freedom of speech enshrined in the first amendment is a 
cornerstone of our great Nation.
  However, there is no idea or thought expressed by the burning of the 
American flag that cannot be expressed equally well in another manner. 
While I might disagree with those who protest, I defend their right to 
do so.
  Protecting the flag will not prevent anyone from expressing his or 
her point of view, regardless of what that point of view may be.
  Indeed, the Supreme Court has recognized many instances in which 
speech is not protected, such as obscenity and ``fighting words.'' I 
believe that desecrating an American flag falls into the same category.
  Limiting this very specific conduct will leave both the flag and 
speech safe.
  Amending the Constitution for this narrow and necessary purpose is an 
implicit recognition of the depth and breadth of the first amendment. 
What could more clearly signal the scope and strength of our freedom of 
speech than the fact that even protecting our Nation's symbol from 
desecration requires a constitutional amendment?
  I would like to assure those with reservations about amending the 
Constitution that the path we are taking is no slippery slope.
  There will be no stampede of constitutional amendments that could 
erode our freedom of speech. There will be no litany of restrictions.
  There has been much confusion surrounding this amendment.
  It does not prohibit flag burning, as is so often stated. This 
amendment would, quite simply, enable the Congress--you and I and our 
98 other Members, Mr. President, as well as the 435 Members of the 
House of Representatives, and the President of the United States--to 
set the protocols governing our flag and protecting it as it has been 
protected throughout most of this Nation's history.
  In other words, we will hold hearings. We will devise legislation. We 
will debate that legislation on the floor of both bodies. The purpose 
is to enable this body and the other body to establish a protocol for 
the handling of the American flag. No more, no less. It is content 
neutral. It does not ban desecration, burning, defiling, or anything 
else.
  Let me read the text of the amendment:

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

  Just as 48 States debated this prior to 1989, and just as 48 States 
made a decision and passed legislation, the Congress of the United 
States would now have the power.
  That is it. No more. No less.
  The resolution--if passed by three-quarters of the 50 State 
legislatures--would merely return to Congress its historical power to 
prohibit the physical desecration of the flag.
  The amendment will enable Congress to have a full and fair debate on 
the appropriate protections for the flag.
  As President Woodrow Wilson, who proclaimed the first Flag Day in 
1916, said:

       This flag, which we honor and under which we serve, is the 
     emblem of our unity, our power, our thought and purpose as a 
     nation. It has no other character than that which we give it 
     from generation to generation. . . . Though silent, it speaks 
     to us--speaks to us of the past, of the men and women who 
     went before us, and of the records they wrote upon it.
  In honor of this emblem of America, I ask that this body permit us to 
give the American people the opportunity to decide if the Constitution 
should be amended. It is time to let the people decide.
  I yield the floor.
  I suggest the absence of a quorum.
  The ACTING PRESIDENT pro tempore. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. HATCH. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER (Mr. Chafee). Without objection, it is so 
ordered.

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