[Congressional Record (Bound Edition), Volume 152 (2006), Part 9]
[Senate]
[Pages 12609-12617]
[From the U.S. Government Publishing Office, www.gpo.gov]




                       FLAG DESECRATION AMENDMENT

  The PRESIDING OFFICER. Under the previous order, the Senate will 
resume consideration of S.J. Res. 12, which the clerk will report.
  The assistant legislative clerk read as follows:

       A resolution (S.J. Res. 12) proposing an amendment to the 
     Constitution of the United States authorizing Congress to 
     prohibit physical desecration of the flag of the United 
     States.

  The PRESIDING OFFICER. The Senator from Utah.
  Mr. HATCH. Mr. President, I would like to say a few words about this 
amendment this morning because there seems to be a lot of 
misunderstanding about it. There are those who believe this amendment 
interferes with First Amendment rights and privileges. It does not. The 
media has largely portrayed this amendment as a ban on flag 
desecration. It is not. This amendment is, pure and simple, a 
restoration of the Constitution to what it was before unelected 
jurists, in a 5 to 4 decision, changed it. In 1989, five justices ruled 
that flag desecration, including burning the flag or any number of 
similar offensive acts, is speech. Four of them, led by the opinion of 
Justice Stevens, one of the most liberal members of the Court, found 
that such conduct does not constitute speech.
  Fifty State legislatures, both red States and blue States, have 
called on us to pass this amendment. There are 60 up-front primary 
cosponsors of this amendment. There are at least six others who have 
said that they will vote for it. If that is all true, we are 1 vote 
short of having 67, with just a few who may still be undecided. We are 
hopeful that they will understand that this amendment simply says that 
``Congress shall have power to prohibit the physical desecration of the 
flag of the United States.'' In other words, in passing this amendment, 
we would give to Congress the power that the Supreme Court took away 
from it when they decided the Johnson case in 1989. That is very 
important to understand.
  Today, the distinguished chairman of the Judiciary Committee, Senator 
Specter, is holding a hearing on Presidential signing statements, which 
he and some others believe actually take away power from the Congress 
of the United States.
  We have heard various Members on both sides of the aisle get up and 
say that they are tired of the other branches of Government, meaning 
the executive and judicial branches, taking away powers from the 
Congress. This amendment would restore power to Congress. That is its 
importance.
  The amendment does not ban anything. It does not require the creation 
of a statute. It does not say what is and what is not desecration of 
the flag. That would have to be defined later, assuming that the 
Congress decides, under its own power, through its own Representatives, 
to try to pass a statute that would define physical desecration of the 
flag. And if Congress did, at some point in the future, decide to 
exercise this power, then I believe that the good Members of Congress 
would very narrowly construe in a statute what is and what is not 
desecration of the flag.
  Once again, fifty States, 50 State legislatures, every State in the 
Union has called for this amendment. Sixty-six Senators, both Democrats 
and Republicans, support this amendment. We are hopeful that there will 
be one or two others who will vote with us, and I believe if we get 
that 67th vote we will have 75.
  In addition, anyone who tries to say that this proposed amendment 
interferes with First Amendment rights has not read it, as many in the 
media have not. This amendment would have no effect on the First 
Amendment. It merely returns the power to protect the flag back to the 
Congress of the United States.
  In his speech yesterday, Senator Durbin, my dear colleague from 
Illinois, who is the Democratic whip, suggested that this amendment is 
unnecessary. He based his assertion on the supposition that there are 
relatively few incidents of flag desecration. So why bother, was 
basically his argument. Why should we address what appears to be a 
matter of minor significance?
  I will tell you why. As I stated, this amendment does not ban 
anything. But let me assume, as Senator Durbin did, that it does. Just 
one incident, just one, is enough to justify action. One flag burning 
is enough, I think, for most people in this country. Principles are not 
creatures of convenience, despite assertions to the contrary.
  As my colleagues know, 48 States, plus the District of Columbia, had 
anti-desecration measures on the books before 1989. It was then that 
five unelected judges told those 48 sovereign entities that they were 
wrong.
  Do my colleagues know the basis for the ruling? Five lawyers decided 
that all of these 48 State legislatures, as well as the District of 
Columbia, were wrong and that their measures were unconstitutional. But 
I ask, where does the Constitution say these measures are 
unconstitutional? Where in the text of the Constitution does it say 
this? The silence is deafening. We all know the Constitution does not 
say these measures are unconstitutional. Five lawyers came to this 
conclusion on the basis of a legal seance.
  Now, I wonder, why did 48 States act in this area if anti-desecration 
laws are unnecessary? I will tell you why. Incidents of flag 
desecration are much more frequent than many of my colleagues have 
suggested.
  The Citizens' Flag Alliance has been cataloguing reported incidents 
of flag desecration since 1994. Now, these are the incidents that are 
made public generally in the media. Their list is by no means 
comprehensive. There are many, many incidents of flag desecration, even 
some that are extremely offensive or even obscene, that are just not 
reported.
  I know these people in the Flag Alliance. They are true citizen 
activists. They do not have high-priced lobbyists and $500-an-hour 
attorneys working for them. Many of them are working individuals who 
are simply committed to the values and ideals the flag represents. 
These hard-working individuals have devoted their time and energy 
fighting for the right to protect these values.
  The Citizens' Flag Alliance has kept an eye on the news throughout 
the country to watch for reports of flag desecration. But with over 
1,450 newspapers in this country it is no small feat to maintain a 
comprehensive list. Despite the difficulties in tracking these 
occurrences, the information that the Citizens' Flag Alliance has 
gathered appears to counter my colleagues' suggestion that there were 
not many incidents of flag desecration at all.
  Since the Citizens' Flag Alliance began keeping count in 1994, there 
have been over 130 recorded incidents of flag desecration. In small 
rural areas as well as cities like Cincinnati, OH and Washington, DC, 
some of these people have defiled the very meaning of the flag by 
desecrating it, and, in many of those cases, more than one flag was 
desecrated.
  For example, 10 flags were vandalized at the American Legion building 
on the Veterans of Foreign Wars post in New Hampshire just a few months 
ago. And, just last week in New York, there was an incident in which 
seven flags displayed on citizens' private property were desecrated and 
burned.
  These reported occurrences of flag desecration are simply the tip of 
the iceberg. Besides the difficulties in monitoring the news for flag 
desecration incidents, there are many other acts of flag desecration 
that go unreported either because citizens know that the individual 
responsible cannot be prosecuted thanks to the Supreme Court decisions 
or because the media just plain doesn't care.
  I heard the other day that protesters recently desecrated an American 
flag at the funeral of one of our fallen soldiers at Arlington 
Cemetery. This is just in the last few weeks. I have yet to see this 
reported by the press.
  The bottom line is that, while this may not be a common offense, it 
is an ongoing and perpetual offense against common decency. Like I 
said, one flag desecration is enough for the majority of people in this 
country, let alone hundreds of them.
  Now, I would add that these counts miss the point. No matter how many

[[Page 12610]]

incidents of flag desecration, the American people, through their 
representatives, should be allowed to pass judgment on this behavior. 
The courts, including the Supreme Court, used to understand this. They 
used to respect the considered judgment of the people's 
representatives. They understood that the desecration of this unique 
symbol, our symbol, the flag, had a unique impact on the communities 
that suffer through these events. The opponents of this constitutional 
amendment can only offer an admonition to grin and bear it, suggesting 
that we should all be bigger people and not worry about those 
desecrated flags.
  I do not think my colleagues appreciate the harm done to these 
communities when flags are desecrated on our Independence Day, on 
Memorial Day, or on our Veterans Day.
  The American people do. The American people understand that even one 
such event is one too many.
  Consider these accounts and tell me these communities have not 
suffered. Let me refer to this chart. This is from the Las Vegas Review 
Journal. It is entitled: ``Misdemeanor Filed in Flag Burning in Las 
Vegas,'' dated September 14, 2004.

       [Stephen Drew] Hampton burned a U.S. flag during a tribute 
     to the victims of the Sept. 11, 2001 terrorist attacks . . . 
     Hampton set fire to a U.S. flag and waved it around before he 
     was ushered out of the event by Las Vegas police and city 
     marshals. Hampton also burned a U.S. flag last year on Sept. 
     11 in front of the New York-New York Hotel & Casino.

  We were not even talking about the flag amendment then. This is 
simply the way some people handle our flag. This individual is by no 
means the only example.
  The fact is that this is not a partisan issue. The American people 
want this amendment. This is an issue supported by Democrats, 
Independents, and Republicans nationwide. This amendment is supported 
in a bipartisan manner by both Democrats and Republicans in the Senate.
  The problem is not that there is a rash of flag burning, although by 
anybody's count you would have to say there certainly is. This is not 
what this resolution is meant to address. Suggesting that we could only 
legislate to protect against widespread flag desecration is a red 
herring. What we are doing here is restoring the power of the American 
people over their own communities.
  Let's be honest about it. This amendment is a very simple amendment. 
It says nothing about banning flag desecration. It does nothing to the 
First Amendment. It simply says we are going to return this issue back 
to the Congress where it should have been to begin with. This amendment 
says these words:

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

  Does that mean the Congress has to prohibit desecration of the flag? 
No. Will the Congress? I hope so. But the Congress does not have to. 
Even if, assuming this amendment is passed by this body and ratified by 
38 States, Congress decides to bring forth a statute, it would still 
have to have a super-majority vote in the Senate because of those who 
would be opposed to it, who would filibuster it, and who would require 
us to invoke cloture. Therefore, it would only pass after the whole 
Congress has spent a considerable amount of time figuring out how best 
to define flag desecration.
  Mr. President, I notice the distinguished Senator from Florida is on 
the floor and would like to make some remarks, so I will relinquish the 
floor at this time.
  The PRESIDING OFFICER. The Senator from Florida.
  Mr. MARTINEZ. Mr. President, it is a real honor to follow the Senator 
from Utah on an issue of constitutionality, where I know he has had a 
great impact in the life of our Nation through the distinguished 
history he has had as a Senator. I know from his many years of serving 
in the Judiciary Committee that he is one who jealously guards and 
understands the importance and the meaning of our Constitution.
  Mr. President, I wish to speak on this issue of the amendment to 
protect the flag of the United States, and I wish to begin by speaking 
about it in a slightly different angle, as someone who, as a young boy 
in school--I think it was when I reached the fifth grade--was charged 
with the responsibility of raising the flag in the morning and then 
bringing it down and protecting it and moving it into a safe place for 
the evening, until the next school day. I did that for the entire 
school year.
  It was with great reverence and ceremony that this took place. I was, 
I remember, empowered with this responsibility as a young boy, which 
was one of the first I had, and I took it very seriously. The 
interesting thing is, it was in another place, in another land, and it 
was another flag. It was not the flag we honor and revere today, but it 
was the flag of the country of my birth, Cuba.
  But what I noticed then and came to notice here is that people place 
great importance in symbols of national unity. No matter what country 
or where we are, there are very special symbols that from time to time 
touch a cord within the nation.
  No greater evidence of the importance of this symbol can be given 
than through the history of our country, the stories we have heard and 
come to know of great heroism in battle, such as that of a soldier, 
perhaps at great risk to his own life, who would go to save the flag, 
go to save the colors--the symbol of the Nation he was fighting for and 
representing. And many soldiers in the history of our Nation have done 
just that.
  So it seems almost odd there should be a heated debate. I understand 
the reason for the debate. It is rooted in the principles of 
constitutional freedom. It is rooted in the desire to honor those first 
10 amendments to the Constitution, which are really what we call the 
Bill of Rights and the right of free speech.
  But I do recall, early in law school, studying constitutional law, 
learning that all rights enshrined in the Constitution have certain 
limits within them, that they all have certain boundaries, that there 
is no such thing as unlimited rights. Although we treasure and value 
our right of free speech, I do believe it is important we understand 
there are some things that ought to be protected.
  We protect our national monuments, not just because they are pieces 
of property that are beautiful and what they represent, but it is 
really more about the symbol of what they are. The national monuments 
are protected because they are a symbol of something special in our 
Nation, and it might be a person, it might be a historical moment in 
time.
  Likewise, this very special symbol of our Nation, our flag, is one I 
believe we should also protect. It is protected in a simple way. It is 
about the balance of power within our Nation. It is about the 
difference between those things which are reserved for the judicial 
branch and others which are placed in the hands of the legislative 
branch.
  What the Congress seeks to do in proposing this amendment to the 
American people, in placing it in a place where it can now enshrine 
forever what was attempted to be done legislatively a number of times, 
which the courts have chosen to strike down, is to say the legislative 
branch of Government, that branch closest to the people, elected by the 
people, shall have the right and the power to prohibit the physical 
desecration of the flag of the United States. That is what the article 
would say:

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

  When I was young, another life experience, now being shared by my 
youngest son, was being a Boy Scout. We see Boy Scouts through the 
halls of our Congress, visiting here, seeing our sacred monuments, 
seeing our places where this Republic has been a beacon of hope, the 
``shining city on a hill'' to many people around the world. When they 
come and relish what they see, they come with a certain pride. They 
have learned also, as young boys, to protect the flag, to defend the 
flag, to honor the flag, and to treat it with that very special respect 
which is expected for something as important as a symbol of national 
unity.

[[Page 12611]]

  So I am an encouraged supporter of this amendment because I believe 
it is important that as our Nation goes forward we always respect and 
honor the opportunity and the right of those who disagree with the 
policies of our Government to freely express themselves, to have no 
place where they cannot speak. I understand the meaning of freedom, the 
meaning of the right of free speech. However, I do also understand the 
very special nature of what the flag represents. In that situation, I 
believe there are many opportunities available to those who wish to 
protest, to those who wish to express a point of view different from 
the Government, that can be expressed in ways that do not afront, that 
do not offend, and do not destroy that very important symbol of 
national unity which we have made our flag and which our flag has been.
  So I am proud today to support this amendment. I believe it is 
important that it be a constitutional amendment because we know that 
past efforts to legislatively fix the problem--to legislatively say to 
all that this symbol of national unity is so important that we deem it 
important enough to protect in a very special way--have been frustrated 
by the inability of the courts to agree with a clear direction the 
legislative branch has imposed on this. So then it is upon us to allow 
the people of this country to vote on this issue and to allow the 
various State legislative bodies to move on this issue and to seek to 
preserve for evermore this symbol of national unity.
  This amendment seeks to prevent the physical abuse of a symbol that 
has served our country in many valuable ways through its history. It 
does not do so by restricting anyone's speech but by addressing their 
physical conduct. We are a free and vibrant people, and we owe that to 
those who have gone before us, and to those who serve us now, in 
protecting our national interests. Desecrating the flag does nothing to 
celebrate or enhance our expressive freedoms, while it clearly 
dishonors those who have seen the flag as a basis for their service and 
sacrifice.
  So I strongly urge my colleagues to support this amendment and 
protect the most prominent and visible symbol of the freedom that 
America represents to the world.
  Mr. President, I yield the floor and suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. FEINGOLD. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. FEINGOLD. Mr. President, I strongly oppose S.J. Res. 12. Make no 
mistake, we are talking here today about modifying the Constitution of 
the United States to permit the Government to criminalize conduct that 
all of us find offensive and wrong, but that is protected by the first 
amendment. This amendment would, for the first time, amend the Bill of 
Rights. I cannot support this course.
  Let me make one thing clear at the outset. Not a single Senator who 
opposes the proposed constitutional amendment, as I do, supports 
burning or otherwise showing disrespect to the flag. Not a single one. 
None of us think it is ``OK'' to burn the flag. None of us view the 
flag as ``just a piece of cloth.'' On those rare occasions when some 
malcontent defiles or burns our flag, I join everyone in this Chamber 
in condemning that action.
  But we must also defend the right of all Americans to express their 
views about their Government, however hateful or spiteful or 
disrespectful those views may be, without fear of their Government 
putting them in jail for those views. America is not simply a Nation of 
symbols, it is a Nation of principles. And the most important principle 
of all, the principle that has made this country a beacon of hope and 
inspiration for oppressed peoples throughout the world, is the right of 
free expression. This amendment threatens that right, so I must oppose 
it.
  We have heard at various times over the years that this amendment has 
been debated that permitting protestors to burn the American flag sends 
the wrong message to our children about patriotism and respect for our 
country. I couldn't disagree more with that argument. We can send no 
better, no stronger, no more meaningful message to our children about 
the principles and the values of this country than if we oppose efforts 
to undermine freedom of expression, even expression that is undeniably 
offensive. When we uphold first amendment freedoms despite the efforts 
of misguided and despicable people who want to provoke our wrath, we 
explain what America is really about. Our country and our people are 
far too strong to be threatened by those who burn the flag. That is a 
lesson we should proudly teach our children.
  Amending the first amendment so we can bring the full reach of the 
criminal law and the power of the state down on political dissenters 
will only encourage more people who want to grandstand their dissent 
and imagine themselves ``martyrs for the cause.'' Indeed, we all know 
what will happen the minute this amendment goes into force--more flag 
burnings and other outrageous acts of disrespect of the flag, not 
fewer. Will the amendment make these acts any more despicable than they 
are now? Certainly not. Will it make us love the flag any more than we 
do today? Absolutely not.
  It has been almost exactly 17 years since the Supreme Court ruled 
that flag burning is a form of political speech protected by the first 
amendment. Proposals to amend the Constitution arose almost immediately 
and have continued unabated. But while the interest of politicians in 
this course of action seems as strong as ever, public interest in it 
seems to be waning. Opinion polls show support for the amendment has 
fallen. Amending the Constitution to prohibit flag desecration is just 
not the foremost thing on the minds of the American people. Perhaps 
that is because it is long since clear that our Republic can survive 
quite well without this amendment. Nearly a generation has passed since 
the Texas v. Johnson decision, and our Nation is still standing strong. 
That alone shows that this amendment is a huge overreaction and an 
entirely unnecessary step.
  The last time that the full Senate voted on, and rejected, this 
constitutional amendment was in the year 2000. I think it is fair to 
say that patriotism since then has not only survived without this 
amendment, it has flourished, and in very difficult times, much more 
difficult than the country faced in 1989, when the Supreme Court struck 
down flag desecration statutes, or in 1995 when I first voted on the 
amendment in the Judiciary Committee.
  Indeed, outward displays of patriotism are greater today than they 
were in 2000. We all know why that is. Our country was viciously attack 
on September 11, 2001, and America responded.
  We didn't need a constitutional amendment to teach Americans how to 
love their country. They showed us how to do it by entering burning 
buildings to save their fellow citizens who were in danger, by standing 
in line for hours to give blood, by driving hundreds of miles to search 
through the rubble for survivors and to help in cleanup efforts, by 
praying in their houses of worship for the victims of the attacks and 
their families.
  September 11 inspired our citizens to perform some of the most 
selfless acts of bravery and patriotism we have seen in our entire 
history. No constitutional amendment could ever match those acts as a 
demonstration of patriotism, or create similar acts in the future. We 
do not need a constitutional amendment to teach Americans how to love 
their country or how to defend it from our enemies.
  I know that many veterans fervently support this amendment. I deeply 
respect their opinions and their right to urge the Congress to pass it. 
But I also want the record to be clear that many of those who have 
served our country in battle oppose the amendment as well. In 1999, a 
number of veterans formed a group called the Veterans Defending the 
Bill of Rights. These veterans, who served our country in five

[[Page 12612]]

 different wars, strongly believe it is wrong to pass an amendment to 
protect the flag that takes away the freedom the flag represents. I'd 
like to share with my colleagues the views of these brave veterans, 
who, in my opinion, represent the very best of the American spirit.
  Let me start with the words of a veteran of our current conflict in 
Iraq. SPC Eric Eliason of Englewood, CO, served as an infantryman in 
the Army for 3 years, including 1 year overseas as part of Operation 
Iraqi Freedom. He said:

       We volunteered to go to war to protect the freedoms in this 
     country, not watch them be taken away. . . . I consider 
     myself an independent-minded conservative, and believe that 
     creating unnecessary amendments to the U.S. Constitution is a 
     betrayal of conservative principles.

  Another veteran, Brady Bustany of West Hollywood, CA, who served in 
the Air Force during the gulf war, put it very simply. He said,

       My military service was not about protecting the flag; it 
     was about protecting the freedoms behind it. The flag 
     amendment curtails free speech and expression in a way that 
     should frighten us all.

  A veteran of the Korean war, Jack Heyman of Fort Myers Beach, FL, 
whose great grandfather fought in the Civil War, whose father served in 
World War I, and whose son served in Vietnam, explained his opposition 
to the amendment this way:

       I know of no American veteran who put his or her life on 
     the line to protect the sanctity of the flag. That was not 
     why we fulfilled our patriotic duty. We did so and still do 
     to protect our country and our way of life and to ensure that 
     our children enjoy the same freedoms for which we fought.

  The leader of Veterans Defending the Bill of Rights is Professor Gary 
May of the University of Southern Indiana. Professor May, whose father, 
father-in-law, grandfather, and brother also served our country in the 
Armed Forces, lost both legs in the Vietnam War on April 12, 1968, over 
38 years ago. He opposes this amendment, and because of what he has 
sacrificed for his country, he speaks more eloquently than I could ever 
hope to about the danger of this amendment. Professor May testified at 
the last Senate hearing held on the flag amendment, which, by the way, 
was held more than 2 years ago, on March 10, 2004. Professor May said:

       Freedom is what makes the United States of America strong 
     and great, and freedom, including the right to dissent, is 
     what has kept our democracy going for more than 200 years. 
     And it is freedom that will continue to keep it strong for my 
     children and the children of all the people like my father, 
     late father in law, grandfather, brother, me, and others like 
     us who served honorably and proudly for freedom.
       The pride and honor we feel is not in the flag per see It 
     is in the principles for which it stands and the people who 
     have defended them. My pride and admiration is in our 
     country, its people and its fundamental principles. I am 
     grateful for the many heroes of our country--and especially 
     those in my family. All the sacrifices of those who went 
     before me would be for naught, if an amendment were added to 
     the Constitution that cut back on our First Amendment rights 
     for the first time in the history of our great Nation.

  Professor May also provided in his statement excerpts from letters he 
has received from other veterans who oppose the amendment.
  One veteran, James Lubbock of St. Louis, MO, who served in World War 
II and has two sons who served in the Vietnam war, said:

       Let's not alter the Bill of Rights to save the flag. We 
     should respect the flag, but we should all cherish the Bill 
     of Rights much, much more.

  These kinds of expressions move me deeply. The service of our troops 
shows the awesome power of the American ideal. The willingness of our 
young people to serve this country, to risk their lives, and endure 
unimaginable hardships on our behalf is not to be taken lightly. I 
believe that this remarkable spirit is inspired and nurtured by the 
principles on which this country was founded, by our devotion to the 
Constitution and the rule of law. We should not trifle with those 
principles. Too much is at stake. We know that now more than ever.
  Despite the expected close vote, it is clear that this is a political 
exercise in an election year. We will spend several days of precious 
floor time, as the legislative session winds down, debating a measure 
that would undermine the Constitution while affecting only a handful of 
miscreants each year.
  As we do so, humanitarian catastrophes continue to unfold around the 
world, posing a direct threat to international peace and stability and 
affecting the lives of millions upon millions of people.
  I sincerely hope we will remember what this debate today is really 
about--not whether flag burning is a good idea, not whether we love and 
respect our flag, not whether patriotism is worth encouraging and 
celebrating, but whether the threat to our country from those who burn 
the flag is so great--is so great--that we must sacrifice the power and 
the majesty of the first amendment to the Constitution in order to 
prosecute them.
  In 1999--it just so happens the Presiding Officer is the son of this 
man--the late Senator John Chafee, one of this country's great war 
heroes at Guadalcanal and in the Korean war, testified before the 
Judiciary Committee against this amendment. He said:

       [W]e cannot mandate respect and pride in the flag. In fact, 
     . . . taking steps to require citizens to respect the flag, 
     sullies its significance and symbolism.

  Senator Chafee's words still echo in my mind. They should serve as a 
caution to all of us who have the responsibility to vote on this 
amendment. What kind of symbol of freedom and liberty will our flag be 
if it has to be protected from misguided protesters by a constitutional 
amendment?
  In concluding, Mr. President, I pay tribute to you and your father. I 
will vote to defend our Constitution against this ill-advised effort to 
amend it. I urge my colleagues to vote for liberty and freedom and for 
the first amendment by voting no on this constitutional amendment.
  I ask unanimous consent that several letters be printed in the 
Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                         American Bar Association,


                                  Governmental Affairs Office,

                                     Washington, DC, June 9, 2006.
     Hon. Patrick Leahy,
     U.S. Senate, Russell Senate Office Building, Washington, DC.
       Dear Senator Leahy: On behalf of the American Bar 
     Association, I write to urge you to vote against S.J. Res. 
     12, the proposed amendment to the U.S. Constitution that 
     would allow Congress to prohibit the physical desecration of 
     the flag of the United States.
       Few things are more offensive to most Americans than the 
     desecration of our flag. But, as important as the flag is to 
     all of us, we must never protect it at the expense of the 
     constitionally protected freedoms it symbolizes. One of our 
     most precious rights is the right to express our 
     dissatisfaction with our government through peaceful words or 
     conduct, both of which are forms of political speech and 
     protected under the First Amendment, S.J. Res. 12 would 
     enshrine a restriction on our fundamental right to free 
     speech in the very document that protects our individual 
     liberties. For the first time in our Nation's history a 
     fundamental right would be denied for future generations.
       The Bill of Rights has remained honored and intact, even 
     during great times of conflict and stress for our nation, for 
     over 200 years. As James Madison once stated, amending the 
     Constitution should he reserved for ``great and extraordinary 
     occasions.'' Infrequent incidents of flag desecration do not 
     warrant undermining the freedom of speech guaranteed under 
     the First Amendment. If we were to desecrate our Constitution 
     to protect the flag's cloth from insult, we would do it great 
     disservice to both.
       All through human history, tyrannies have tried to enforce 
     obedience by prohibiting disrespect for the symbols of their 
     power. The American flag commands respect and love because of 
     our country's adherence to its values and promise of freedom, 
     not because of fiat and criminal law. America is not so 
     fragile and our citizens' patriotism is not so superficial 
     that they must be upheld by the mandate of a constitutional 
     amendment to protect the flag.
       We urge you to defend and preserve our cherished 
     constitutional freedoms by rejecting S.J. Res. 12.
           Sincerely,
     Michael S. Greco.
                                  ____

                                        Veterans for Common Sense,
                                    Washington, DC, July 14, 2005.
     Re Oppose the Flag Desecration Constitutional Amendment.

       Dear Senator: We, the undersigned members of Veterans for 
     Common Sense, write to

[[Page 12613]]

     urge you to oppose S.J. Res. 12, the proposed constitutional 
     amendment to prohibit ``desecration'' of the flag. This 
     proposed amendment is an attack on liberty, and a disturbing 
     distraction from the real concerns of our nation's veterans.
       Veterans for Common Sense (VCS) was founded on the 
     principle that in an age when the majority of public servants 
     have never served in uniform, the perspective of war veterans 
     must play a key role in the public debate over national 
     security issues in order to preserve the liberty veterans 
     have fought and died to protect. VCS was formed in 2002 by 
     war veterans who believe that we, the people of the United 
     States of America, are most secure when our country is strong 
     and responsibly engaged with the world. Three years later, 
     our organization has over 12,000 members throughout the 
     United States. Central to our mission is supporting United 
     States servicemen and women, veterans and their families, and 
     preserving American civil liberties as guaranteed in the U.S. 
     Constitution and its amendments.
       The United States is faced with a number of pressing 
     concerns related to national security and the quality of life 
     of veterans. We believe that the United States government and 
     military has a responsibility to maintain and continue its 
     work in Iraq so that the country comes out of this war as a 
     stable, secure and sovereign nation where its people have the 
     best opportunity for a decent and free life. The government 
     also has a responsibility to ensure that United States 
     servicemen and women come home safe.
       Out of the 360,000 discharged veterans from Operation Iraqi 
     Freedom and Operation Enduring Freedom, nearly one in four 
     have already visited the Veterans Administration for physical 
     injuries or mental health counseling. Our government has a 
     duty and a responsibility to address both the traditional and 
     nontraditional effects of war, including battlefield 
     injuries, post-traumatic stress, and diseases resulting from 
     vaccines and toxic exposures.
       These concerns should be on the top of the congressional 
     agenda this session. But instead of devoting its time and 
     resources to resolving these urgent challenges, Congress 
     apparently chooses to consider amending the Constitution to 
     prohibit a form of nonviolent expression. We are dismayed by 
     this choice.
       We urge Congress to preserve American civil liberties as 
     guaranteed in the United States Constitution and its 
     amendments. When it comes to the measure under consideration, 
     we believe that the supposed threat of a few incidents of 
     flag burning does not justify the first ever amendment to the 
     First Amendment. The ability to express nonviolent dissent to 
     government policy is central to the American way of life, and 
     we are loathe to amend away this fundamental liberty.
       As veterans, we are indeed offended by those who burn or 
     defile the flag. The flag is a cherished symbol of the 
     freedoms we fought to defend, and we honor it as such. But we 
     must not attempt to protect this symbol at a cost to the 
     freedoms it represents. The Constitution of the United States 
     has never been successfully amended to restrict liberty. To 
     do so now would betray the promise and ideal of America.
       The proposed constitutional amendment to ban 
     ``desecration'' of the flag threatens the civil liberties of 
     Americans. Further, it distracts from the real world concerns 
     of our active duty military personnel and veterans. Congress 
     should not be in the business of undermining freedom of 
     speech. During this time of war, we urge you to put this 
     unnecessary and dangerous constitutional amendment aside, and 
     instead focus on protecting our national security, insuring 
     our servicemembers in harm's way have what they need to 
     accomplish the mission, and that when they return home they 
     get the best possible care. Again, please oppose S.J. Res. 
     12. If passed, it will undermine the Constitution that we 
     swore to support and defend.
           Sincerely,
                                           BG (Ret.) Evelyn Foote,
     Army, Accokeek, MD and over 1300 veterans.
                                  ____

         The American Jewish Committee, Office of Government and 
           International Affairs,
                                    Washington, DC, June 22, 2006.
     Re: Flag Desecration Amendment (S.J. Res. 12)

       Dear Senator, On behalf of the American Jewish Committee, 
     the nation's oldest human relations organization with over 
     150,000 members and supporters represented by 33 regional 
     offices nationwide, I urge you to oppose !he Flag Desecration 
     Amendment (S.J. Res. 12). This amendment to the United States 
     Constitution would authorize Congress to prohibit the 
     physical desecration of the U.S. flag.
       The Flag Desecration Amendment would encroach upon 
     Americans' First Amendment rights. While AJC would be 
     appalled by the burning of the flag for political purposes. 
     the amendment would undermine the very values of freedom of 
     expression and peaceful dissent that our flag represents. The 
     House of Representatives already passed its version or The 
     Flag Desecration Amendment one year ago. If adopted by the 
     Senate. this legislation would mark the first time Congress 
     has amended our founding charter to diminish the precious 
     freedoms protected by the Bill of Rights,
       We therefore urge you to protect the First Amendment's 
     guarantee of freedom of expression by opposing S.J. Res. 12.
       Thank you for considering our view on this matter.
           Respectfully,
                                                Richard T. Foltin,
     Legislative Director and Counsel.
                                  ____

                                               National Council of


                                                 Jewish Women,

                                                    June 23, 2006.
       Dear Senator: I am writing on behalf of the 90,000 members 
     and supporters of the National Council of Jewish Women (NCJW) 
     in opposition to the proposed amendment to the Constitution 
     banning flag desecration (S.J. Res. 12).
       NCJW is a volunteer organization, inspired by Jewish 
     values, that works to improve the quality of life for women, 
     children, and families and to ensure individual rights and 
     freedoms for all. As such, we feel amending the Constitution 
     in this way would threaten healthy civic debate, personal 
     freedom of expression, and our fundamental democratic values.
       As a symbol of our nation, the United States' flag 
     represents our unique democracy and basic freedoms. The 
     burning of the American flag constitutes dissenting 
     expressive conduct, a right upheld by the US Supreme Court in 
     Texas v. Johnson (1989). This Supreme Court precedent and our 
     nation's history teach us that we must not protect this 
     symbol at the expense of weakening the rights it represents.
       As a senator, you are entrusted with protecting the rights 
     and liberties of all Americans. I ask you to reaffirm your 
     commitment to protecting these rights by opposing this 
     egregious amendment.
       Sincerely,
                                                   Phyllis Snyder,
                                                   NCJW President.

  Mr. FEINGOLD. Mr. President, I yield the floor and suggest the 
absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. CARPER. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. CARPER. Mr. President, like each of our colleagues in the Senate, 
I have a deep and abiding reverence for our flag.
  As an 11-year-old Boy Scout, I learned flag etiquette and how we are 
supposed to show our respect for the flag. Later, I attended Ohio State 
University as a Navy ROTC midshipman and upon graduation took an oath 
to defend our country and its Constitution against all enemies both 
foreign and domestic.
  I went on to serve our Nation as a naval flight officer for 23 years 
of Active and Reserve duty during the Vietnam war and until the end of 
the Cold War, much of it as a Navy P-3 mission commander.
  We fly ``Old Glory'' on the front porch of our home throughout the 
year. We display it proudly in my Senate offices in Georgetown, Dover, 
and Wilmington, DE, as well as right here in Washington, DC.
  Over the past 24 years, I have kicked off hundreds of townhall 
meetings by inviting attendees to stand and join me in pledging 
allegiance to our flag.
  I wear an American flag lapel pin to work every day, and the American 
flag is even displayed on the Chrysler minivan I drive all over my 
little State.
  I know it may sound old-fashioned or even corny to some, but I still 
get a lump in my throat more often than not when I pledge allegiance to 
our flag or sing our national anthem. In short, I love our flag and all 
of the good that it symbolizes about America.
  In fact, I probably love our flag more today than all the days I have 
lived on this Earth. That is 59. But as much as I love our flag, I love 
our Constitution even more.
  The U.S. Constitution is the foundation of the longest living 
experiment in democracy in the history of the world--America. Although 
written by man, I believe our Constitution was divinely inspired.
  Among the rights that it guarantees us as Americans, none is more 
cherished than our right to freely express our beliefs. As much as we 
may disagree with the views of others, our Constitution seeks to 
guarantee that

[[Page 12614]]

each of us has the right to convey our thoughts and views, however 
outrageous the rest of us may find them to be.
  Our Constitution has been amended only 17 times since 1791 and just 6 
times in my lifetime.
  We have amended the Constitution to protect our freedom of speech, to 
worship God as we see fit, to protect our right to bear arms, and to 
ensure the right to a trial by a jury of our peers.
  We have amended our Constitution to protect us from unlawful searches 
of our home and to guarantee our right to assemble to present our 
grievances to those who serve us.
  Constitutional amendments have abolished slavery, provided women and 
18-year-old Americans with the right to vote, and limited our 
Presidents to serving just two terms in office.
  The original Framers of our Constitution made it possible to amend 
the Constitution, but they did not make it easy. Our Founding Fathers 
believed they largely ``got it right'' the first time. History has 
demonstrated that they did.
  When I served in Southeast Asia during the Vietnam war, flag burning 
was not uncommon. I was never in the presence of anyone who desecrated 
or destroyed our flag in protests then. It is hard to know for sure how 
I would have reacted, but it would not have been pretty.
  Having said that, it has been a long time since I ever saw anyone 
burning or otherwise seeking to desecrate or destroy an American flag, 
and I am not the only one who feels that way either.
  Former Secretary of State Colin Powell wrote several years ago:

       If someone destroys or desecrates a flag that is the 
     property of someone else, that is a prosecutable crime. If 
     someone is foolish enough to desecrate a flag that is their 
     own property, do we really want to amend the Constitution to 
     hammer a handful of miscreants?

  In 1998, retired Green Beret Marvin Stenhammar testified before the 
Senate Judiciary Committee and addressed the two same questions above 
with this statement:

       As a true conservative, I ask you: When did it become 
     conservative to recommend several changes to the 
     Constitution? My brand of conservatism does not include this 
     doctrine . . . I feel you--

  ``You'' being the Congress--

     have better things to do with your time and our tax dollars 
     than changing the Constitution for something that rarely 
     occurs and is typically done by immature idiots.

  sI have given this issue a lot of thought over the past 30 years. I 
have searched my heart, and I have concluded that once we let our 
passions subside, Colin Powell and Marvin Stenhammar have spoken the 
truth.
  Flag burning or desecration, as we think of it, rarely does occur in 
this country today. In fact, last night, I was watching the news on 
television with my youngest son. The footage the networks were showing 
either dated back to the Vietnam war or they were images of foreigners 
burning a flag in Iraq or some other foreign countries.
  I think that begs the question: Do we really need to amend the 
Constitution in an effort to eliminate a form of protest that almost 
never happens in America today? I am not convinced that we do.
  Come to think of it, I don't recall a time in my life when there was 
a greater reverence for the American flag than there is today in our 
country.
  I was reminded of that fact just last summer when I marched in Fourth 
of July parades throughout Delaware in places such as Hockessin, 
Smyrna, Laurel, and Bethany Beach and saw literally thousands of people 
of all ages waving, wearing, or displaying the stars and stripes.
  All across America today, we see our flag proudly displayed on 
millions of homes, office buildings, factories, schools, stadiums, 
construction sites, bridges, and on the vehicles we drive.
  A spirit of patriotism swept across our country since 9/11 in a way I 
have never witnessed in my life, and it has never fully subsided. That 
spirit is a source of comfort and inspiration to me, as I believe it is 
to millions of Americans everywhere.
  The ``miscreants'' or the ``idiots'' who used to burn flags here did 
so to bring attention to their causes. They wanted to inflame passions 
in order to garner broader media coverage for those causes.
  A Washington Post editorial of June 27, 2005--1 year ago today--said 
it better than I could. It said:

       When was the last time you saw someone burning a flag? If 
     the answer is never, that's because it hardly ever happens. 
     In fact, one of the few certain consequences of passing this 
     amendment would be to make flag burning a more fashionable 
     form of protest.

  Given human nature today, the Post is probably right.
  Another problem with the amendment is that just as beauty is in the 
eye of the beholder, so is flag desecration in several respects.
  Most Americans would agree with us that burning an American flag in 
protest constitutes desecration, but how about a person covered with 
suntan lotion and perspiration lying on the sand on a hot sunny day at 
Bethany Beach or any beach for hours on an American flag beach towel? 
Or how about wearing an American flag swimsuit? What if a person wears 
American flag underwear, a neckerchief, or a sweatband of the stars and 
stripes?
  What if they use their American flag neckerchief to wipe the dirt off 
their face or maybe even blow their nose on it? Do we really want to 
cause law enforcement officers, along with judges and prosecutors, to 
wrestle with questions such as these or do we want them fighting 
illegal drug trafficking, unlawful immigration, child abuse, assaults, 
rapes, and murders, and other serious crimes that are far more 
commonplace?
  Let me suggest to my colleagues today not all behavior that dishonors 
our flag involves the physical desecration. I believe we desecrate our 
flag and what it symbolizes when we send American troops off to war 
without the body armor that they and their Humvees are supposed to 
have. I believe that we desecrate our flag and what it symbolizes if we 
don't provide for the needs of our soldiers when they come up with 
post-traumatic stress disorder, or without an arm, a leg, or their 
eyesight.
  I believe we desecrate what our flag symbolizes when we discourage 
hundreds of thousands of Americans from voting by knowingly 
misallocating voting machines in some parts of America, causing people 
to give up after waiting for hours in line to cast their ballots.
  I believe we desecrate what our flag symbolizes when we intimidate 
people whose religious beliefs are different from our own and try to 
compel them to worship God as we see fit. I believe that a handful of 
corporate CEOs desecrate what the American flag symbolizes when they 
loot the companies they lead and leave employees, pensioners, 
shareholders, and the rest of us holding the bag.
  I believe we desecrate this beloved symbol of our country when we run 
up massive national debt that our children and our grandchildren will 
spend the rest of their lives trying to dig out from under.
  I believe we desecrate what our flag symbolizes when some politicians 
who sought three deferments during an earlier war question the 
patriotism of those of us who served three tours of duty there or left 
three limbs on the battlefield of that war.
  And I believe, my friends, that we desecrate all of the good that our 
flag symbolizes about America when we call on other nations to abide by 
the Geneva Conventions in providing humane treatment of the war 
prisoners they hold while we do not.
  Mr. President, how much time do I have remaining, please?
  The PRESIDING OFFICER. Seventeen seconds.
  Mr. CARPER. Mr. President, I yield back the remainder of my time, and 
I will continue the rest of my speech at a later time today.
  Mr. President, I yield the floor.
  The PRESIDING OFFICER. The Senator from Texas.
  Mr. CORNYN. Mr. President, is there an order in effect for a time 
agreement? How much time do I have, in other words?
  The PRESIDING OFFICER. The majority controls the time until 12:30.
  Mr. CORNYN. Mr. President, I rise to address the resolution that is 
before us

[[Page 12615]]

today and to speak in favor of its adoption. But before I do that, I 
think it is important first to read what the resolution says, because I 
think what we are actually going to be voting on has been misconstrued 
and, to some extent, inadvertently misrepresented. Also, during the 
course of my comments, I would like to address those who say that 
protecting Congress's prerogative to pass laws against flag desecration 
and those who say it is not important and emphatically disagree with 
them. And to those who say there are other things we can and should be 
doing, I say, well, we have been very busy doing a lot of very 
important things, but I certainly believe we have enough time in our 
crowded schedule to address this important issue as well.
  There are also those who say amending the Constitution is simply 
something we should not do, even though we have done so 27 times during 
the course of our Nation's history, and even though the 27th amendment 
to the United States Constitution provides that Congress can't increase 
its salary without having an intervening election. If we can amend the 
Constitution for that, which I agree is an important provision, we can 
certainly reinstate Congress's authority to pass laws protecting our 
national emblems and our national symbols such as the United States 
flag.
  There are also those who try to get off--and again, I know people of 
good faith have serious disagreements. I don't mean to disparage the 
good faith of those who say this, but I would challenge those who say 
we can pass a statute and avoid having to pass a constitutional 
amendment. All I would say to that is: Been there. Done that. Doesn't 
work. The Supreme Court held that subsequent statutory provision 
unconstitutional, just like it did in the Texas case in 1989, the Texas 
law that prohibited desecration of the flag.
  First of all, let me read the constitutional amendment being 
proposed, because there are some who say we are being asked to ban flag 
burning. In fact, this is a restoration of the authority under the 
Constitution to Congress to pass such laws as it deems appropriate, and 
we can talk about what the details of those bills would be later on, 
once the amendment is adopted. But it says, simply:

       Resolved by the Senate and House of Representatives of the 
     United States of America in Congress assembled, 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.

  The article says simply this:

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

  As I said, this constitutional amendment doesn't actually make it a 
criminal act to desecrate the flag; it doesn't say what the penalties 
will be. What this constitutional amendment does is reinstate 
Congress's historical authority to protect the flag against desecration 
and leave for a later date what exactly that statute, that bill, would 
look like.
  The reason I feel so strongly about this provision is because of the 
unique nature of our national symbol. The American flag is a monument, 
a symbol of our freedom, our country, and our way of life. Why in the 
world would we refuse to protect it against desecration?
  As a former President of the United States has noted:

       We identify the flag with almost everything we hold dear on 
     Earth. It represents our peace and security, our civil and 
     political liberty, our freedom of religious worship, our 
     family, our friends, our home. We see it in the great 
     multitude of blessings of rights and privileges that make up 
     our country.

  Another President has said it this way:

       Our flag is a proud flag and it stands for liberty and 
     civilization. Where it has once floated, there must be no 
     return to tyranny.

  We not only pledge allegiance to the flag each day in the Chamber of 
the U.S. Senate; children across America recite those words at the 
beginning of each school day, too. We celebrate Flag Day on June 14 of 
each year. We pin to our lapels flag pins and paste it to the windows 
of our cars and trucks. Following 9/11, you could hardly buy a flag, 
because they were in such demand as a rallying symbol of American 
patriotism and resolve in the wake of that awful attack, as depicted by 
this well-remembered picture of first responders in New York erecting 
the American flag out of the rubble following the deaths of 3,000 
innocent Americans.
  We insist on special rules of etiquette when a flag is handled. When 
I was a Boy Scout growing up, that was one of the things you learned. 
You learned flag etiquette, how to demonstrate respect for this unique 
symbol of our country, including learning how, when the flag is old and 
tattered, that special rules of etiquette dictate its disposal.
  By displaying the flag, we demonstrate our gratitude to the 
generations passed who have fought and died for our country. And we 
remind ourselves of the obligation that we have to preserve our freedom 
for the generations yet to come and to pass along to our children and 
grandchildren the blessings of liberty that we have come to enjoy 
because of the sacrifices of those who have gone before. We drape this 
emblem over the coffins of those who have died in service to our 
country, those who have given the last full measure of devotion to keep 
us and our freedom safe. We proudly fly the flag over our Capitol here 
in Washington, DC, and at State capitols and public buildings all over 
our country.
  Mr. President, recently I read a book about the most famous picture 
in the history of photography. This is a picture we are going to put up 
on this board that all of you will instantly recognize. This is a 
picture of Marines erecting the American flag on Iwo Jima in World War 
II, where thousands upon thousands of Marines gave their lives to take 
this island from the occupiers. The book I read recently is called 
``Flags of Our Fathers,'' written by a man named James Bradley; his 
father was John. John Bradley, the father of the author, stands in the 
middle of the most reproduced figure in the history of photography. 
Only days before this photo was taken, John Bradley, a Navy corpsman, 
had braved enemy mortar and machine gun fire to administer first aid to 
a wounded Marine and then dragged him to safety. For this act of 
heroism John Bradley would receive the Navy Cross, an award second only 
to the Congressional Medal of Honor.
  One of the amazing things about this book, ``Flags of Our Fathers,'' 
about this photograph and about John Bradley's service to his country 
as a Marine Corpsman and the service of others of these Marines who 
erected this flag on Iwo Jima in World War II, is that John Bradley, 
like so many of the Greatest Generation, never spoke of this historic 
moment or really much of his military service to his family or friends.
  This reminds me a lot of my dad, who was a B-17 pilot in World War II 
who, on his 13th mission helping to knock out part of Hitler's war 
machine in Nazi Germany, was shot down and spent 4 months in a German 
prison camp. And like John Bradley, my dad never talked much about his 
military service. But James Bradley, John Bradley's son, discovered 
three boxes of artifacts his father had saved about Iwo Jima after his 
death, which launched him into a quest to find out a little bit more 
about his father's past and the past of the five other flag-raisers 
depicted in this picture.
  This book explores the lives of all of these flag-raisers, showing 
how in times of national crisis ordinary Americans have found within 
themselves an uncommon courage and a capacity to attempt, and achieve, 
the impossible.
  Indeed, that is one of the things that makes the American flag 
unique. What becomes of a country that has no special symbols; that 
somehow, over the passage of time, has deemed itself too sophisticated, 
too intelligent, too cynical to be choked by emotion when our flag is 
raised or when the pledge is spoken or when our National Anthem is 
sung?
  During the Civil War, as James McPherson, a internationally known 
historian of that period has noted:

       The most meaningful symbol of regimental pride were the 
     colors--the regimental and

[[Page 12616]]

     national flags, which bonded the men's loyalties to unit, 
     State, and Nation.

  He records one combatant as saying:

       When the American flag appeared above the battle smoke on 
     the enemy works, it is impossible to describe the feelings 
     one experiences at such a moment. God, country, love, home, 
     pride, conscious strength and power, all crowd your swelling 
     breast. Proud, proud as a man can feel over this victory to 
     our arms. If it were a man's privilege to die when he wished, 
     he would die at that moment.

  These are not my words; these are the words of those who, in the 
service of their country, gained inspiration and purpose from this 
symbol that is a unique symbol, unlike any other we have in this 
country.
  But ultimately, there are those on the floor of the U.S. Senate who 
ask: Well, is this really important enough to amend the United States 
Constitution? To those I would say, the question is not whether the 
Constitution should be amended; it already has been by judicial decree. 
The question then remains, who gets the final word? Five Justices on 
the United States Supreme Court or we, the people?
  Not important? I disagree. This, I believe, is the ultimate test of 
our form of government, based as it is upon consent of the government. 
Our Founding Fathers recognized that our Constitution might need to be 
amended over time and thus article V of the Constitution creates a 
difficult but nevertheless a way forward to amend the Constitution when 
the American people see fit.
  Of course, this process will not stop upon this body's passage of 
this amendment. Assuming we are able to get the two-thirds vote 
requirement in the Senate and in the House, then it will go to the 
States, where three-quarters of the States must ratify the amendment 
for it to become the 28th amendment to the United States Constitution.
  I believe, to quote the Declaration of Independence, that the powers 
of the Federal Government emanate from ``the consent of the governed.'' 
In other words, I believe that we as a nation do not have to accept as 
final the judgment of five Judges who, in 1989, in the Texas v. Johnson 
case, held the Texas flag desecration law unconstitutional.
  The amazing thing about this debate is I do not think there are very 
many people who recognize that before 1989, when the U.S. Supreme Court 
struck down the Texas flag desecration statute, 48 States, including 
the District of Columbia, had laws criminalizing flag desecration--48 
States. But, lo and behold, 200 years after its adoption, five Judges 
decided that the first amendment of the Constitution of the United 
States, which guarantees free speech, renders all of those 48 flag 
desecration statutes unconstitutional as being a limitation on free 
speech. Don't mind the fact that it is really not about speech, it is 
about behavior. It is not about what you say, it is about what you do. 
But the Supreme Court, five members of the Court, didn't seem to have 
too much trouble with that.
  Chief Justice Rehnquist, recently departed, in the dissent to that 
case of Texas v. Johnson in 1989 that struck down all 48 flag 
desecration statutes, wrote:

       The American flag, then, throughout more than 200 years of 
     history, has come to be the visible symbol embodying our 
     Nation. It does not represent the views of any particular 
     political party, and it does not represent any particular 
     political philosophy. The flag is not simply another ``idea'' 
     or ``point of view'' competing for recognition in the 
     marketplace of ideas. Millions and millions of Americans 
     [Chief Justice Rehnquist said] regard it with an almost 
     mystical reverence, regardless of what sort of social, 
     political or philosophical beliefs they may have. I cannot 
     agree that the first amendment invalidates the act of 
     Congress and the laws of 48 of the 50 States which make 
     criminal the public burning of the flag.

  Justice Stevens, not necessarily of the same sort of judicial 
ideology or bent as Chief Justice Rehnquist, also dissented, and he 
said:

       The flag is more than a proud symbol of the courage, the 
     determination, and the gifts of nature that transformed 13 
     fledgling Colonies into a world power. It is a symbol of 
     freedom, of equal opportunity, of religious tolerance, and of 
     good will for the other peoples who share our aspirations. . 
     . . The value of the flag as a symbol cannot be measured.

  Justice Stevens concluded:

       The case has nothing to do with ``disagreeable ideas.'' It 
     involves disagreeable conduct that, in my opinion, diminishes 
     the value of an important national asset . . .

  And that Johnson, the defendant in that case, was punished only for 
the means by which he expressed his opinion, not the opinion itself.
  I mentioned a moment ago that there are those of our colleagues who 
in good faith think that we can fix this problem by simply passing 
another flag desecration statute in the U.S. Congress. I would point 
out to my colleagues that we have already tried to do that right after 
the Texas v. Johnson case. The U.S. Congress overwhelmingly passed a 
statute which was struck down by the same five Justices on the U.S. 
Supreme Court in a case called United States v. Eichman.
  It is clear that no statute can pass constitutional muster as long as 
the Texas v. Johnson decision is on the books. There are some who would 
offer an amendment--maybe during the course of this debate--who in good 
faith think that if they limit the reach of the statute to fighting 
words, in other words some act that would provoke violence in a public 
place, that somehow they have fixed the problem. But we are not just 
talking about provoking people by what is tantamount to fighting words 
by protecting the flag. We are talking about protecting a valuable 
national symbol of all of the things our country has come to mean, both 
to us and to those abroad; and that the good faith of our colleagues 
notwithstanding, no statute that we might pass could possibly fix the 
problem of five Judges assuming after 200 years that flag desecration 
is protected speech, that it violates the first amendment of the 
Constitution.
  We all know as a matter of constitutional law that no statute can fix 
a constitutional violation. So only a constitutional amendment, passed 
by Congress and ratified by three-quarters of the States, could 
possibly fix this problem.
  Those who complain and say this is an imaginary problem, that we do 
not have acts of flag desecration today or why are we talking about 
this in 2006 if the Supreme Court held this flag desecration statute 
unconstitutional in 1989, there is a very simple reason we are still 
talking about it today. It is because we have been working on it under 
the leadership of Senator Orrin Hatch and others for 11 years.
  I think the first constitutional amendment that was introduced was in 
1995, and we have gradually been making progress each year by getting 
more and more support in the Senate. I hope our colleagues today will 
meet the challenge and deliver the 67 votes needed in this Chamber in 
order to move this constitutional amendment along.
  To those who say this is an imaginary problem, I will say simply look 
at the facts. The Citizens Flag Alliance has a Web site in which they 
demonstrate 17 acts of flag desecration in the United States over the 
last 2 years. It may be these are not widely reported in the press. I 
am not sure exactly what the reason is. But there are 17 acts of flag 
desecration just in the last 2 years. This is not a contrived or 
imaginary issue.
  I remember the ranking member of the Judiciary Committee, the Senator 
from Vermont, saying he was vehemently against the constitutional 
amendment because he didn't think we ought to tamper with the 
Constitution--notwithstanding the Founding Fathers provided article V 
to give us a means to amend the Constitution when a sufficient number 
of people in the Congress and across the country see fit. But I think 
he said something like: If anyone had the temerity to desecrate the 
flag in his presence, they wouldn't need a statute criminalizing that 
act. They would have to get past him to get to wherever it was they 
were going, suggesting that perhaps individuals who were sufficiently 
motivated might, through acts of violence, perhaps, dictate justice.
  I do not think that is a sufficient answer. This is a real issue. It 
is not contrived, as demonstrated by the 17 acts of desecration in the 
last 2 years. It is not a problem we can fix by passing a

[[Page 12617]]

statute and patting ourselves on the back and saying: Yes, we fixed 
that problem. This is a problem that calls for a constitutional 
amendment.
  Yes, I know how serious that is. I don't lightly suggest amendments 
to the Constitution. But I sincerely believe in my heart of hearts this 
unique symbol of our country and all of our aspirations and dreams--not 
only for people here but the kinds of aspirations and dreams that are a 
beacon to those who will come here in the future, and the generations 
that come here after--I believe it deserves special protection. Thus, I 
believe we ought to take this opportunity to say yes.
  Congress does have a voice in this. Yes, the American people do have 
a voice in whether the flag is protected. The only way we can do that 
is by passing this resolution by two-thirds of the Senate and moving 
this process along and then leaving it up to the people of America, the 
three-quarters of the States that will have to ratify this before it 
becomes final. Let them have a word.
  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. CORNYN. Mr. President, I ask unanimous consent the order for the 
quorum call be rescinded.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 
ordered.
  Mr. CORNYN. I thank the Chair.

                          ____________________