[Congressional Record (Bound Edition), Volume 152 (2006), Part 9]
[Senate]
[Pages 12622-12655]
[From the U.S. Government Publishing Office, www.gpo.gov]




                 FLAG DESECRATION AMENDMENT--Continued

  Mr. INOUYE. Mr. President, I ask that I be permitted to use 6 minutes 
of my party's time.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. INOUYE. Mr. President, I rise to speak against the proposed 
constitutional amendment.
  Since World War II, I have been involved directly or indirectly in 13 
wars and conflicts: Korea, Vietnam, the Dominican Republic, Desert One, 
Grenada, Lebanon, Panama, the Persian Gulf war, Somalia, Haiti, 
Yugoslavia, Afghanistan, and now Iraq.
  In all these wars and conflicts, there are several things in common. 
First, American lives were lost and many young Americans were wounded 
and will bear scars for the rest of their lives, and we must not 
dishonor their

[[Page 12623]]

memories by abandoning the freedoms for which they sacrificed.
  Second, in every war, great speeches are made and delivered 
energizing our citizens to defend our unique American freedoms 
contained within the Bill of Rights. I can still hear some of those 
stirring words.
  During the Second World War, very close friends of mine were lost. 
Much blood was shed to preserve every American's constitutional 
freedoms.
  To be clear, I have no patience with those who defile our flag. It is 
unpatriotic and deeply offensive to those who serve or who have served 
in uniform. It angers me to see symbols of our country set on fire. 
This objectionable expression is obscene, it is painful, it is 
unpatriotic, but I believe Americans gave their lives in many wars to 
make certain that all Americans have a right to express themselves, 
even those who harbor hateful thoughts.
  Our country is unique because our dissidents have a voice. Protecting 
this freedom of expression, even when it hurts the most, is a true test 
of our dedication to democracy.
  As a commissioned military officer and as a U.S. Senator, I took an 
oath to uphold and defend the Constitution. As a Senator, I have become 
accustomed to being insulted and condemned by people who disagree with 
me. I have been castigated for having cast votes that some call 
unpatriotic or un-American. I believe that my actions were patriotic 
and American, but those who criticize me have a right to disagree and 
express their disagreement.
  It is not always easy to serve the country with a Bill of Rights that 
defends the rights of those who would defile our national symbol. While 
I take offense at disrespect to the flag, I nonetheless believe it is 
my continued duty as a veteran, as an American citizen, and as a United 
States Senator to defend the constitutional right of protesters to use 
the flag in nonviolent speech.
  For over 200 years, our Bill of Rights has endured. It proclaims the 
Government of the United States is limited in its powers, and this 
sacred document continues to instruct and inspire people throughout the 
world. And for the last 200 years, despite repeated efforts to tamper 
with this document, we have always found the strength necessary to live 
within these limits.
  So today we must look inside ourselves once again and find the 
strength to affirm our commitment to the precious liberties enshrined 
in the Bill of Rights.
  The PRESIDING OFFICER. The Senator from Oklahoma.
  Mr. COBURN. Mr. President, I have great respect for the Senator from 
Hawaii, for his service as a veteran, as well as his service in this 
body, but I couldn't disagree more.
  Our Founders used the word ``speech.'' They didn't say ``expression'' 
or ``expressive behavior.'' They used the word ``speech'' very 
critically. It was discussed in the documents: What word will we use in 
the Bill of Rights in this first amendment?
  They chose the word ``speech'' because they meant speech. They didn't 
mean behavior. They meant speech.
  I think it is real important for the American people to understand 
what this debate is all about. It is not about burning the flag. It is 
about restoring the balance of the three branches of Government, and 
that when one of the three becomes imbalanced, that we have the right 
to restore that balance. Our Founders were wise in that regard to give 
us this vehicle of amending the Constitution.
  We can talk about the flag all we want, but the real debate here is, 
when an overwhelming majority of Americans agree with this and all 50 
State legislatures have passed requests that we do this, why we don't 
do this? The only way we have to balance the judiciary with the 
legislative branch is to do it in a manner that represents the will of 
the people as prescribed by our Founders.
  Seven new Republican Senators were elected in 2004, and if there was 
an issue that dominated that debate more than anything, it was, what 
kind of judges are we going to put on the courts? Are we going to 
confirm judges who take what they want, twist the Constitution into 
what they believe, and change the basics of how we operate in this 
country or are we going to put judges on the courts who understand that 
they have a very limited role to interpret the Constitution, interpret 
the treaties, and interpret the statutes of this country?
  The reason we were sent here, the seven of us, the vast majority of 
the impact of that election, was to have an impact on what kinds of 
judges we were going to put on the courts. This is that same debate 
coming from a different angle. Do we want a 5-to-4 decision where five 
Members of the Court determine and twist what the real words of our 
Constitution say--speech, not behavior; it says ``speech,'' not 
behavior, not expressive conduct; it says ``speech''--and do we want to 
allow that to continue to be twisted or do we want to reserve the right 
for Congress to go through the method that our Founders allowed to 
bring about a constitutional amendment that says we have the right to 
control whether somebody can do that.
  To vote against this amendment will limit the ability of this body to 
hold on to its balanced share of one-third of the power of this 
Government. This is about restoring the power of this body and the 
House to, in fact, represent what the people in this country want in an 
overwhelming majority in all 50 States.
  It is not about burning the flag. It is about reestablishing the 
proper role of the balance of the three branches that run this 
country--the executive, the judiciary, and the legislative.
  We are going to miss a great opportunity if we don't do this. It will 
do two things: One, it will reestablish the power, but it will send a 
signal that when judges take an oath, they have to follow the oath and 
the oath is not to determine what they think is best based on what they 
believe. Their oath is to follow the Constitution, not change it but 
follow it; and No. 2, interpret the statutes and interpret the 
treaties.
  We have to reestablish a balance. This resolution is about 
reestablishing that balance and sending the message that we are serious 
that judges take their oath seriously, that they don't get to play 
games with what they would like but they, in fact, have to uphold their 
oath. They also have to follow what the Constitution says, and the 
Constitution says the same thing as their oath. They don't get the 
privilege of deciding what they want. They have the privilege of only 
deciding what the Constitution says, what the statutes say, and what 
the treaties say.
  I remind the Members of this body that our Founders put the word 
``speech'' in the first amendment on purpose. They didn't put the words 
``expressive behavior.'' They used the word ``speech,'' and we ought to 
establish the right of the Congress to establish within itself the 
right to do what the American people want and to follow the 
Constitution. That is what this is about.
  There have been a lot of statements made about what would you do with 
a flag; what about a bathing suit? The way you judge what is a flag is 
what you drape over the coffin of one of our fallen soldiers. That is 
how you judge what it is. That is what it means. You can't define what 
it is other than the value of service and sacrifice that is part of the 
heritage of this country. To say we cannot preserve the value of that 
and bring back our constitutional responsibility to do that--No. 1, 
which does follow the Constitution and, No. 2, is the desired will of 
this country--means that we won't stand up to the obligations of our 
office, and we ought to be very serious about it as we do that.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Kansas.
  Mr. BROWNBACK. Mr. President, I rise today in full support of S.J. 
Res. 12, the flag desecration resolution introduced by Senator Hatch. 
The Senate has given this bill adequate consideration and it is now 
time to pass it and send it to the States for ratification.
  I have heard a lot of critics of the flag amendment incorrectly 
characterize it as stifling free speech. Nothing could be further from 
the truth. First,

[[Page 12624]]

the amendment itself does not prohibit anything. The constitutional 
amendment we are considering today restores to Congress the power to 
protect the flag--a power the Congress freely exercised until 1989, 
when the Supreme Court handed down 5 to 4 decision in Texas v. Johnson. 
This decision struck down a flag protection statute in Texas, and 
effectively invalidated similar statutes in 48 States and the District 
of Columbia, as well as the Federal statute. In 1990, in another 5 to 4 
decision, the Court struck down a revised Federal statute.
  The Court's decision in Texas v. Johnson was notable for a powerful 
dissent authored by Justice Stevens. I would note that Justice Stevens 
provides consistently one of the most liberal votes on the Court. 
Justice Stevens found that neither the States nor Congress had acted 
improperly in passing the statutes in question. He was on the mark in 
his dissent when he said:

       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.

  Justice Stevens is absolutely correct in recognizing that a 
prohibition on certain forms of conduct is a power long held by 
Congress and the States and in no way infringes on the right of any 
individual to express an idea. He went on to say:

       Had he chosen to spray-paint--or perhaps convey with a 
     motion picture projector--his message of dissatisfaction on 
     the facade of the Lincoln Memorial, there would be no 
     question about the power of the Government to prohibit his 
     means of expression. The prohibition would be supported by 
     the legitimate interest in preserving the quality of an 
     important national asset.

  Then-Chief Justice Rehnquist also questioned the communicative value 
in desecrating the flag, saying that such conduct ``is most likely to 
be indulged in not to express any particular idea, but to antagonize 
others.''
  Prior to these rulings, Congress, with the support of a majority of 
the American people, had the power to protect our Nation's symbol. 
Respect for the flag is not something that falls along ideological 
lines or party affiliation; it is shared by Americans from all walks of 
life. In these polarized times, the flag remains a unifying symbol.
  Last month, as chairman of the Judiciary Subcommittee on the 
Constitution, I chaired a markup of this bill. We had an energized 
debate, and passed the amendment with a bipartisan 6-to-3 majority. 
Two-thirds of the membership of my subcommittee not only supported the 
amendment but were, and are, proud cosponsors.
  I would like to thank my good friend and ranking member, Senator Russ 
Feingold for his cooperation in scheduling a markup. He doesn't support 
the amendment, but I know he believes amending the Constitution is a 
very serious matter, and I appreciate his cooperation in having a fair 
and honest debate. I would also like to thank Senator Feinstein. She is 
one of the strongest supporters of this amendment and is also a member 
of the Constitution Subcommittee. I commend her for ignoring powerful 
special interest groups and diligently fighting for what's right.
  We should be very careful in considering amendments to the U.S. 
Constitution. It is not something that should ever be taken lightly, 
but the Court has left us with few options. It is unfortunate that we 
have to consider this amendment, but I do believe that in light of the 
Supreme Court's decisions it is the appropriate action.
  The amendment has broad bipartisan support here in the Senate, and is 
supported by Americans from both ends of the political spectrum. Poll 
after poll indicates that the people of this country want their flag 
protected. I have been contacted by numerous veterans groups from my 
home State of Kansas, as well as across the country voicing strong 
support for this amendment. We ask a lot from our men and women in 
uniform. They sacrifice their safety and risk their lives so that each 
of us can remain free in this great Republic. Their defense of the 
principles and liberties embodied in the red, white, and blue preserve 
the freedoms enumerated in the Constitution.
  Passing this amendment and sending it to the States allows for the 
American people to have their voices heard on this important issue. The 
House passed the flag amendment by a two-thirds majority vote last 
year, and it is now our turn to do the right thing and give the States 
and the people of this great Nation the opportunity to decide whether 
to grant protection to our national symbol. If ratified by three-
fourths of the States, then we can debate an appropriate statute 
concerning treatment of the flag.
  There is a lot of misinformation regarding this amendment that should 
be cleared up. If ratified, the text of the Constitution would not 
prohibit flag burning. The amendment states:

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

  Even if the amendment passes, the Congress may decide not to prohibit 
flag desecration. But we will have corrected a wrong decision by the 
Supreme Court.
  Article V to the Constitution does not give nine unelected Justices 
the right to amend our founding document. This power rests solely in 
the democratic process. Restoring this power to the people and their 
elected representatives in Congress preserves this process. Protecting 
the integrity of our national symbol should not be left to a handful of 
unelected judges. Why would any Member of this body vote to limit our 
power and expand the power of the Court?
  The Founding Fathers wisely devised a process for the people through 
their elected representatives--not the courts--to amend the 
Constitution. It is our duty as elected Members of Congress to exercise 
this constitutionally granted power when necessary and appropriate. 
Justice is not served when we remain silent and allow unaccountable 
judges to exercise this power for us. If, as Members on both sides the 
aisle repeatedly claim, we truly oppose judicial activism, we should 
send this amendment to the States for ratification.
  I am proud to have cosponsored this amendment in every Congress since 
I became a Member, and to have consistently cast my vote in support 
each time the bill has made it to the floor. I urge my colleagues to 
support this bill, so that the American people can choose whether or 
not to bestow protection to their flag. There is no symbol that has the 
power to unify us like the flag, which is why a majority of Americans 
continue to support this amendment. It is time to restore the 
traditional meaning of the first amendment and send the flag 
desecration resolution to the States for ratification. I urge my 
colleagues to vote for this important amendment.
  Mr. President, I thank my colleague from Oklahoma for his great work 
on this amendment. This legislation passed the Constitution 
Subcommittee 6 to 3. It passed the full Judiciary Committee and is now 
ready for this body to vote, and we need to have a positive vote on it.
  I flew in to Washington today. There were cloudy skies, but one could 
still see the monuments when flying in. The beauty of the monuments 
never ceases to strike me. Whether it is the White House, the 
Washington Monument, the Lincoln Memorial, National Cathedral, there 
are just certain landscape features one looks at.
  When you are flying in on the so-called river run that the pilots so 
often do, you get to see these monuments, and it is just so striking.
  I was preparing for this debate and thinking about the Lincoln 
Memorial. What if somebody today, yesterday, or some other time had 
taken spray paint and sprayed on the Lincoln Memorial: ``We want 
freedom'' or ``Death to tyrants'' or ``Down with the flag''? Let's say 
they wrote that in big spray paint on the Lincoln Memorial and defaced 
the memorial and then was caught and was brought to trial and claimed: 
Wait a minute, I have a first amendment right to say what I want to 
say, and I believe it is important that I say it anywhere, and I want 
to say it on the Lincoln Memorial. I want to make my message known, and 
I am going to spray-paint it all over here; this is free speech, and I 
ought to be able to do that and this is the place to do it, and Lincoln 
would approve of that; he believed in free speech, so he wouldn't

[[Page 12625]]

mind that the memorial was sprayed upon, that it was defaced.
  We would all recognize that as being something wrong, violating the 
law, and something there should be a law against.
  We don't have a problem with a person standing on the Lincoln 
Memorial and shouting at the top of his lungs for as long as he wants 
whatever he wants to say--if it is about the war in Iraq, if it is 
about the President, if it is about somebody in the Senate, if it is 
about myself, if it is about the Chair, if it is about anything he 
wants. We don't have any problem with that. But if he defaces the 
memorial, we do.
  It is interesting, that was the dissent Justice Stevens used in the 
Texas v. Johnson case. He made that same point. We have no problem with 
a person speaking on the Lincoln Memorial. We have a problem with him 
defacing the Lincoln Memorial. We have no problem with people speaking 
against the flag. We have a problem with them defacing the flag.
  Justice Stevens in his dissent--which I think was rightly said--said:

       Had he chosen to spray paint or perhaps convey with a 
     motion picture projector his message of dissatisfaction on 
     the facade of the Lincoln Memorial, there would be no 
     question about the power of Government to prohibit this means 
     of expression. The prohibition will be supported by the 
     legitimate interests in preserving the quality of an 
     important national asset.

  That is what we are talking about today: preserving the quality of an 
important national asset that people follow into battle, that we have 
had and honored for years and years, and until recently the court has 
held up as saying: Yes, this is something that should be protected and 
is protected by the laws of the land, and these laws are appropriate 
and are not limitations on free speech.
  I think if you follow this court ruling, where does it end? If you 
say actions are speech, wouldn't you have a legitimate objective in 
defacing the Lincoln Memorial, particularly if it was some form of 
political free speech that you wanted to express and put forward?
  We have held many hearings on this topic. This is not a complicated 
issue. It is about whether we are going to have some authority and 
ability to be able to limit and to be able to honor and to uphold 
something so precious as our American flag. I think we should do that. 
I think because of the people who follow this flag and because we are a 
nation of symbols, and symbols are what unite us, and because of the 
words and thought that are conveyed by this flag, we should be able to 
uphold this mighty national asset. I think it is important that we be 
allowed to do that.
  I have had a chance to speak on this at length in committee. I have 
carried the amendment in our subcommittee. I urge my colleagues to 
support this amendment and let the States vote on it. Let the States 
decide what they would choose to do.
  Mr. THOMAS. Mr. President, I would like to make a few comments on the 
bill before us. I have heard a great deal of discussion and, as always, 
there should be a lot of discussion, different ideas about it, the idea 
of protecting free speech, and none of us disagree with that. I think 
the difference here is the fact that the flag represents our right and 
our freedom for free speech as well as all of our other freedoms. So I 
am proud and honored to be one of the 59 original cosponsors of the 
flag protection amendment.
  Having served in the Marine Corps, I stood before the flag and 
understood that it represented the things that we stand for. It 
represented the freedoms we have. It represented the things that we 
sacrifice for. I believe it should receive special protection because 
that is what it symbolizes to the citizens of the United States.
  I understand there are concerns about limiting free speech. This 
amendment does not limit speech; it simply gives Congress the authority 
to prohibit physical desecration of the flag. To me, that is pretty 
easy to determine. It is something we should protect. It is something 
that we have given a great deal to protect. It is symbolic of the 
things that mean so much to us.
  Since the Supreme Court decision that said desecrating the flag is 
protected speech, there has been an overwhelming amount of public 
support to protect the flag. All 50 States have passed resolutions 
calling for Congress to pass a flag amendment.
  I understand that amending the Constitution should not be taken 
lightly, but burning or defacing or trampling the flag sends the wrong 
message to people who have given so much, including their lives, for 
the defense of this country, so certainly that should not be taken 
lightly.
  Throughout history, in times of war, peace, and uncertainty, our 
Nation always turns to the flag as a sign of resolve, as a sign of 
commitment, as a sign of strength. After the attacks of September 11, 
our Nation unfurled the flag at the Pentagon and raised it from the 
rubble at Ground Zero. It is a symbol of national unity and identity. 
This symbol needs to be held in the highest regard. Generations of 
American soldiers have died under the flag and the ideals it stands 
for. The flag is a strong symbol for those who fought in wartime.
  The American flag is a national asset. Just as it is unlawful to 
desecrate the Washington Monument, the Lincoln Memorial, and the graves 
at Arlington, it should be unlawful to desecrate the flag. Aren't there 
some things like symbols of freedom that should rise above politics? It 
seems to me that they should.
  So I urge my colleagues to support this amendment so we can send it 
to the States for ratification and ultimately let the people of America 
decide.
  Mr. President, I yield the floor.
  The PRESIDING OFFICER. The Senator from Georgia is recognized.
  Mr. ISAKSON. Mr. President, I rise in support of the amendment to 
allow the U.S. Congress to protect the American flag.
  I was elected 2 years ago, in the most recent election. I ran on a 
campaign of three basic promises and commitments to the people of 
Georgia: The first was to support the President and our men and women 
in harm's way in the war on terror. The second was to work diligently 
for strong fiscal accountability on behalf of the Congress. And the 
third was to vote in favor of confirming the judges appointed by the 
President of the United States to the Federal bench. With those 
promises, I made the statement that I really felt as though the 
division of powers of our Constitution was sound, and that it was 
absolutely important for judges to interpret the law, not to make the 
law.
  This amendment has been said by some to be a violation of the first 
amendment. This amendment has nothing to do with speech or expression. 
It has everything to do with protecting our flag and allowing the 
Congress to write those laws that would prohibit physical desecration 
of our flag.
  Unlike some, I do not believe the flag is an inanimate object. I 
believe it is a living symbol for which our men and women in harm's way 
have fought for over two centuries.
  Just a month ago, I went to Normandy. I went to Bellewood. I went to 
the Netherlands and Margraten. I went to Belgium and Carthage in 
Northern Africa. We did seven ceremonies in 6 days at seven American 
cemeteries, cemeteries where tens of thousands of Americans are buried, 
having paid the ultimate sacrifice in World War I and World War II. 
They died to protect the first amendment. But if those in the graves 
could come back and speak, I don't think a one would say they died to 
have the flag they fought for desecrated.
  The courts have also been inconsistent in this case in my judgment 
about the first amendment and expression. The court, in 1989, in Texas 
v. Johnson, and in 1990 in the case of the United States v. Eichman, 
ruled that burning the flag was protected by the first amendment. I 
find it ironic that in 2003, the U.S. Supreme Court ruled in the 
Virginia case, Virginia v. Black, that the burning of a cross in 
someone's front yard was not expression and, therefore, the Virginia 
law banning it was upheld.
  I did a little research on that case which led me to find out that 
the District of Columbia has that law, the

[[Page 12626]]

State of Georgia has that law, and many States in the United States 
have that law, which says the terrible act of desecrating a cross and 
burning it is protected--is fine for the States to do that. In fact, I 
read a little bit about Clarence Thomas's opinion written in that 2003 
case, and I want to share his remarks because it applies directly to my 
point on protecting the flag and not allowing its desecration. Justice 
Thomas said:

       This statute prohibits only conduct, not expression. ust as 
     one cannot burn down someone's house to make a political 
     point and then seek refuge in the First Amendment, those who 
     hate cannot terrorize and intimidate to make their point.

  I don't think it can be said more succinctly or more clearly.
  The amendment that is to be voted on by this Senate, hopefully 
sometime today or tomorrow, is an amendment that does nothing to 
prohibit the speech of anyone but does everything to protect the flag 
from being desecrated. I think those brave men and women who died for 
this country would agree with that, I agree with that, and I think the 
people of Georgia agree with that. I urge my colleagues to vote in 
favor of passage of the amendment.
  Mr. President, I yield the floor, and I suggest the absence of a 
quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. TALENT. 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. TALENT. Mr. President, how much time do we have left?
  The PRESIDING OFFICER. The Senator has 3\1/2\ minutes.
  Mr. TALENT. Mr. President, I rise to speak on the proposition before 
us and on the importance of protecting the American flag. The American 
flag is a unique symbol in the Nation's consciousness. America, unlike 
many countries, actually had a birthday. There was a day when the 
Colonies became States and the States became a nation and they were 
organized explicitly around certain beliefs about human dignity and 
freedom: the belief that people have certain inalienable rights that 
inhere in them as human beings and that because of those rights the 
Government is the servant and not the master of the people. It is also 
a nation that cherishes diversity but balances against that, unity. It 
is no accident that the national motto is ``out of the many, the one.''
  We are not a country with a monarchy. We rebelled against a monarchy. 
We are not a country with an established religion. We rebelled against 
that as well. We are a country with only a few unifying symbols, chief 
among which is the flag. That is why it is so uniquely important to 
America's conception of itself to protect the flag. In protecting the 
flag, we are affirming the basic beliefs of the country.
  I believe that there is in the Constitution a narrow power on the 
part of the States and the Congress to protect the flag from public 
desecration. In passing this amendment, if the Senate chooses to do it, 
we will simply affirm those underlying ideals. We are not saying you 
can't criticize those ideals--you can. You can attack them. You can 
attack the flag if you want. But there ought to be a power to protect 
the flag from public desecration, and I think the amendment comes down 
simply to that proposition:
  How much do you value the flag as a symbol of what this Nation has 
stood for and what the people of this country have sacrificed for and 
in some cases have died for?
  There are arguments that have been raised on the floor against the 
amendment. One of them is that we should not amend the Constitution. 
The Supreme Court has amended the Constitution. Until recently, it was 
the common understanding that this power existed. There were 48 States 
that had laws against the desecration of the flag. The Supreme Court 
said they were unconstitutional. In effect, the Court updated or 
amended the traditional understanding of the Constitution to say that. 
Whatever you think of the Court's power to amend the Constitution or 
update it according to the opinions of the Justices, surely the people 
ought to have the power to amend the Constitution.
  If the Court can do it, the people ought to be able do it.
  That is another basic American ideal--the right of the people to 
govern themselves, to decide for themselves what their own organic law 
says. If the people are to have their will carried out in this respect, 
the only way they have left to do it is by amending the Constitution. 
If you say we should not amend the Constitution under these 
circumstances, you are saying, in effect, that the courts can change 
the Constitution when they think it is important to do it, and the 
people have no response. They cannot pass a statute because the Court 
would say it is unconstitutional, and they cannot pass a constitutional 
amendment because so many in this body say they should never amend 
their own Constitution.
  Another argument against the amendment is that it regulates 
expression. It does not. Burning the flag is an act. It is an act with 
expressive overtones, surely, so we should be careful before doing it, 
but it is an act, and it is fully within the tradition of the first 
amendment to allow the regulation of actions that have speech 
overtones. It was only a few years ago that this body passed 
comprehensive campaign finance reform that most certainly regulated not 
just acts but expressions. According to that legislation, it is 
unlawful for grassroots groups to sponsor political advertisement in 
the last 60 days of an election that mentions the name of a candidate. 
I cannot think of anything more closely related to the core of what the 
first amendment was passed to protect, yet the Court said that was 
constitutional. If it is permissible to regulate speech in that 
context, why is it not permissible to regulate action that has speech 
overtones?
  Mr. President, I ask unanimous consent for another 2 minutes to 
finish my remarks.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. TALENT. Why is it not permissible to regulate something that is 
clearly an act that strikes at the heart of the American consciousness 
and that leaves unregulated a vast area of expression?
  I would daresay, if the average American decided to participate in 
the political process and try to get his or her views out, they might 
very well join a grassroots group and get involved in a campaign. Yet 
it is evidently consistent with the first amendment, according to the 
Court, to regulate that, yet not consistent to prohibit a particular 
action that has one narrow area of expressive overtones.
  We should at least understand what this debate is about. It is about 
how much you value the flag. I do not begrudge anybody their views 
about expression or the Constitution or the role of this body in 
regulating the one or amending the other. But I believe this debate is 
about how great a significance you attach to the flag of the United 
States. I believe it is important. People have fought under it. They 
have died for it. There are literally billions of people around the 
world who see the flag as a symbol for all that is good about their 
hopes for the future.
  I believe it is important that we have this debate. I hope the Senate 
will think clearly and deeply and thoughtfully and not on a partisan or 
political basis and decide it is consistent with America's traditions 
and that it will sustain the balance between diversity and unity for us 
to pass this amendment and protect our flag.
  I yield the floor.
  The PRESIDING OFFICER. The assistant Democratic leader.
  Mr. DURBIN. Mr. President, I have listened to this debate today and 
yesterday. I have heard the heartfelt sentiments of my colleagues on 
both sides of the aisle about this flag. I think everyone following 
this debate has the same strong feelings about this flag and what it 
symbolizes.
  Today, Senator Dan Inouye, my colleague from the State of Hawaii, 
spoke. There probably is no one better qualified to come to the Senate 
floor and speak to this issue. Senator Dan

[[Page 12627]]

Inouye, a veteran of World War II, lost his arm in combat and was 
decorated with the Congressional Medal of Honor for the bravery and 
valor he showed in that conflict. He went on to serve his Nation again 
in the U.S. Congress and came to the floor today to speak from the 
heart about what that flag means to him. One would think that a man 
like Senator Inouye, more than any other who serves in the Senate, 
would understand the importance of that flag to our men and women in 
uniform and to all of us who, from the moment we were old enough, 
learned the Pledge of Allegiance and stood up in front of our 
classrooms and said that flag means something special.
  Today before us is an opportunity to do something for that flag, and 
I believe we should seize that opportunity. But I think what has been 
proposed by the other side, the idea of amending our Constitution, is 
not necessary.
  Stop and reflect for a moment. Since 1791, when James Madison, Thomas 
Jefferson, and the Founding Fathers crafted the words of our Bill of 
Rights, they have stood as a sacred document in this country. They have 
guided us through good times and bad. They have given us our moral 
compass as a nation. They have inspired others to follow that wording 
so carefully crafted in building their own constitutions and their own 
nations. It is, indeed, a sacred document.
  Some have come to the Senate floor in the last several days and 
suggested it is time to change the Bill of Rights. It is time for the 
first time in the history of the United States of America to change the 
words crafted by our Founding Fathers.
  I have said it before and I will repeat it now, when it comes to 
changing this Constitution, I approach that task with great humility. I 
like to think I have some skills, perhaps at writing or speaking, but 
if you are asking me to write words to put in that Constitution, words 
that would change what Madison, Jefferson, and the Founding Fathers 
intended to be our basic rights as Americans, I come to that task with 
great humility.
  But some of my colleagues do not. In fact, over the last 15 years we 
have had 1,000 amendments proposed to the Constitution. There was a 
time in the Senate Judiciary Committee not long ago when the chairman 
scheduled two constitutional amendments to be considered on the same 
day. I took exception to that. I objected to one of them and I argued 
then, and I still believe, that for all that is holy in America, we 
should not amend the Constitution more than once a day.
  Today we are facing the second constitutional amendment this month 
proposed by the Republican side of the aisle. I think it is 
unfortunate. I wish my colleagues approached this with the same sense 
of humility which I think most Americans would if facing this 
challenge. The obvious question is this: If we love this flag, if we 
respect this flag, if it is a symbol for our Nation, how should we show 
that respect? We do it in so many ways, from the Pledge of Allegiance 
to our national anthem, saluting it as it passes in parade or putting 
your hand over your heart. We do it in ways large and small.
  But what about those who desecrate that flag? What about those who 
engage in hateful conduct toward that flag to protest some action by 
the United States or for whatever reason? What should we do with those 
people? According to those supporting a constitutional amendment, we 
should show our hatred for their conduct by amending the Bill of Rights 
for the first time in the history of the United States of America. I 
disagree. I disagree. I believe there is a way to protect that flag 
without defiling our Constitution. There is a way to show our love of 
that symbol of our great Nation, not at the expense of that sacred 
document which has guided us from the beginning. What I am proposing at 
the end of my statement today is an amendment. It is an amendment that 
is being offered on a bipartisan basis. It is an amendment that will 
make it unnecessary to amend the Constitution of the United States. It 
is an amendment which establishes that it will be a crime to desecrate 
that flag. We spell out the circumstances that would make it a crime.
  The Supreme Court has not said that you have to amend the 
Constitution to protect that flag--just the opposite.
  In the United States v. Eichman case in 1990, the Supreme Court 
expressly recognized that while citizens have a free speech right to 
express their political dissent by burning the flag, the Government may 
punish flag-burning under certain circumstances.
  In a unanimous decision in 1992--in R.A.V. v. the City of St. Paul--
the Court explained that although a law prohibiting individuals from 
dishonoring the flag is not content neutral, the Government may punish 
flag-burning in a content neutral manner.
  Stripping away the constitutional language, what the Court has said 
is this Congress has within its power to write a criminal statute that 
would punish someone who desecrates that flag. This amendment that I 
offer will do that expressly. It would prohibit a person from 
destroying a flag with the intent of inciting imminent violence. It 
would prohibit people from threatening someone by burning a flag. It 
would prohibit damaging a flag owned by the United States. And it would 
prohibit damaging a stolen flag on Federal land.
  Each of those elements in this amendment has been carefully thought 
out and tested against constitutional standards that have been handed 
down by the Court.
  You may recall, if you follow the Supreme Court decisions, that not 
long ago there was a historic decision in Virginia v. Black. The year 
was 2003. The Court in that decision held that the Government may 
prohibit people from burning crosses with the intent to intimidate.
  You know what the symbol of burning a cross is. It is a symbol of 
hatred and bigotry and prejudice. It is especially a hateful symbol to 
African Americans who recall our bitter past of slavery, before the 
dawn of the civil rights movement. And the Supreme Court made it clear. 
It said, the Government may prohibit intimidation by the use of burning 
crosses.
  We use the same logic and the same argument of the Court and apply it 
to the flag.
  For those who have come to the floor--and many have--and said how 
much they respect the flag, we offer them a reasonable alternative: an 
alternative that protects the flag without infringing our Bill of 
Rights.
  I think that is the way we should move. We have learned long ago that 
when it comes to amending the Constitution, it shouldn't be the first 
thing we do. It should be the last resort. That sacred document 
deserves to be honored and only changed when absolutely necessary for 
America.
  There is a criminal statute that I am going to propose as an 
alternative way to protect that flag, to show respect for that flag, 
and to still show respect for our Bill of Rights.
  Let me tell you about another issue which we address in this 
amendment. You have read about it. If you read it, as I have recently, 
it makes you sick. What I am referring to is a group nominally calling 
themselves Christians that is now picketing and protesting at the 
funerals of our fallen soldiers. There is a man by the name of Phelps. 
He calls himself a minister. But his gospel seems to begin and end with 
hatred--hatred for gays and lesbians, and obviously hatred and 
insensitivity for the poor families of our fallen veterans.
  About 15 years ago, this man Phelps and his so-called church 
followers started showing up at the funerals of men and women who died 
of HIV/AIDS. They have reportedly picketed over 22,000 funerals and 
other events across America. When their vile acts of incivility stopped 
generating the publicity they sought, Mr. Phelps found a new target.
  I am reluctant to show these photos because I don't want to encourage 
this man. But I have to tell you that it puts in context what we are 
talking about today. Imagine if you had someone who calls themselves 
God-fearing and goes to the funeral of fallen soldiers with signs like 
these, ``Thank God for 9/11'' and ``You are going to hell.''
  Here is another one of those followers holding a sign at a veteran's 
funeral,

[[Page 12628]]

``God hates you.'' Here he is. ``AIDS is God's curse.''
  I received a letter recently from the wife of one of our fallen 
heroes in Iraq. Mr. Phelps and his group showed up at her husband's 
funeral.
  Can you imagine the heartbreak that family must have felt, losing a 
father, a husband, a brother, coming for that sad moment of parting and 
then to have these protesters standing around saying that God hates 
you.
  In the past year, these hate-mongers have protested at more than 100 
military funerals in America. They claim that the deaths of America's 
Armed Forces are God's punishment for America's tolerance for those 
with different sexual orientation. This is such an affront to the 
families, to everyone in uniform, and to our Nation.
  I think there will be a special place in the next life for these 
people, but there is no place for their brand of hatred at veterans' 
funerals in this life.
  Last month, we passed a bill which the President signed into law that 
made it clear that Mr. Phelps and his faithful followers could not 
engage in this sort of demonstration at our 121 national cemeteries.
  The amendment which I will be offering includes a section which not 
only protects our flag by making it a crime to defile or desecrate 
under the circumstances I mentioned, it goes further. It expands the 
bill that we passed earlier. It applies the same standards as would 
apply to national cemeteries to the funerals of all veterans, whether 
they are buried in a national cemetery or in their own church cemetery 
or somewhere else.
  My amendment will prohibit protests at cemeteries, funeral homes, 
houses of worship and other locations where deceased veterans are 
honored and buried.
  We can honor our veterans and protect our loved ones from these 
hateful, barbaric intrusions on the grief of their families. We can do 
this without weakening or assaulting our Constitution. We can do this 
without diminishing the basic freedoms we revere in our Nation--
freedoms that those veterans fought for.
  I ask my colleagues to stop, pause, and think for a moment. If we can 
achieve this, if we can truly protect this flag and if we can protect 
the veterans and their families from these hateful demonstrations 
without amendment to our Constitution, let's do that. Let's join 
together on a bipartisan basis.
  We often disagree in this Chamber. Debates go on and on. Can't we 
come together in agreement on this that we love this flag and can 
protect it without amending our Constitution, that we respect our 
veterans, soldiers and their families, and that now we include this 
provision as well to protect them?
  The amendment I offer is very narrow. It doesn't ban all protest 
activities. It permits protests outside military funerals as long as 
protesters don't engage in loud activities. But it draws strict 
guidelines so that you can't disrupt that funeral home by putting 
demonstrators and pickets within certain distances consistent with our 
constitutional rights.
  I hope that those who will consider this amendment will go back to 
the point I made earlier. We can stand for this flag and we can stand 
for our veterans. But first we must stand for our Constitution. We 
should address this Constitution with humility and with the 
understanding that the words that have inspired our Nation and people 
around the world for more than 200 years are words worth protecting. 
And that before we come to this floor for whatever motive to change 
those words, if we can find an alternative to create Federal crimes for 
the activities that we find so objectionable, so abhorrent, it is a 
much more reasonable path to follow.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Utah.
  Mr. BENNETT. Mr. President, I thank my friend from Illinois for the 
amendment he has offered. It is my understanding that it is the same 
wording of the amendment to the bill which I offered and which is 
pending before the Judiciary Committee, cosponsored with Senator 
Clinton and others but that he has added a section to it which I find 
very worthwhile. I thank him for his thoughtfulness and for the section 
that he has added with respect to funerals and cemeteries, and for his 
diligence in bringing forward that piece of legislation which I had 
offered and which has been bogged down in the Judiciary Committee for 
whatever reason. I am grateful to him for his consideration.
  I ask unanimous consent that I be added as a cosponsor to his 
amendment.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. BENNETT. Mr. President, while I have the floor, I would like to 
make this comment about the debate that is before us.
  I have great personal conflicts on this issue because my senior 
colleague from Utah, Senator Hatch, is the cosponsor and the principal 
sponsor of the constitutional amendment which would empower the 
Congress to have the right to take legislative action to protect the 
flag.
  The PRESIDING OFFICER. Time is currently under the control of the 
minority.
  Mr. KERRY. Mr. President, I ask unanimous consent that whatever time 
he uses be charged to the majority and I reserve our time 
appropriately.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. BENNETT. I thank my friend from Massachusetts. I wasn't aware of 
the time situation.
  I have enormous respect for Senator Hatch--not only for his legal 
ability but perhaps more so for his sincerity and his commitment to 
this cause.
  This is not something he is doing for any cheap political purpose. 
This is not something he is doing to grandstand. This is something that 
he is doing because he sincerely believes it. He is sincerely committed 
to the idea that protecting the flag is an essential thing for us to 
do, not only to honor our veterans but to teach our children the 
importance of the flag in the future.
  I respect that, and I am with him. But I cannot quite bring myself to 
amend the Constitution in the manner that he suggests for those 
purposes. I want to make it very clear that I do not under any 
circumstances denigrate those purposes. I believe that the legislation 
I offered--which, as I indicated, is still before the Judiciary 
Committee--would take care of the challenges of protecting our flag. He 
disagrees. He insists that my legislation would be unconstitutional 
based on past precedent.
  Checking with legal authorities, I am assured that it is 
constitutional. That is not the point. The Senate will work its will 
one way or the other with respect to this.
  I simply want to make it clear that although I have come to the 
conclusion that a constitutional amendment under the present 
circumstances is not necessary, this does not mean that I surrender one 
whit of my respect for and loyalty to my senior colleague. The Senate 
will make its decision. I will be happy with whatever that decision 
might be.
  I once again extend my support and respect for my senior colleague 
even as I announce my intention to vote in a different path.
  The PRESIDING OFFICER. Five minutes remain on the minority side.
  Mr. KERRY. Only 5 minutes of the total?
  The PRESIDING OFFICER. That is correct.
  Mr. KERRY. Is that on the half hour?
  The PRESIDING OFFICER. Yes.
  Mr. KERRY. Mr. President, would it be possible, because we got pushed 
back a little bit, that I could have 10 or 15 minutes on my time and 
then slide it back the other way?
  Mr. President, I ask unanimous consent that I be permitted to proceed 
for 10 minutes.
  The PRESIDING OFFICER. Is there objection? Without objection, it is 
so ordered.
  Mr. KERRY. Mr. President, I thank the Chair and I thank my colleague.
  Mr. President, let me begin by saying that all through the years we 
have been here before. We have had this vote before a number of times. 
And each time, thank God, the Senate in its wisdom has protected the 
Constitution of the United States.

[[Page 12629]]

  I must say that I have concern at a time when real leaders ought to 
be uniting the country around our biggest challenges, in a summer when 
American soldiers are in harm's way in Iraq, Afghanistan, and elsewhere 
in the world, while families at home are struggling with record gas 
prices, with health care costs soaring, jobs being shipped overseas and 
veterans who are defending our country and flag are still going without 
the health care they were promised, it is astonishing that we are here 
having this debate.
  This debate, like wars themselves, can pit father against father, 
family against family, veteran against veteran. It is a complicated 
debate emotionally, and I understand that. I am not doubting at all the 
emotional feeling which is real for every American about our flag. We 
all understand that.
  I remember taking an oath in 1965 with a group of friends of mine who 
decided--all of us--that we ought to serve our country. We went into 
different branches of the service with a common sense of what our 
obligation was. But when I raised my hand, I did not raise my hand to 
defend the flag; I raised my hand and took an oath to defend the 
Constitution and our country.
  A lot of those friends did not come home. They were buried in coffins 
that bore that flag until the moment of their burial, and then that 
flag was given to a family member. That flag was a symbol of their 
sacrifice, a symbol of their gift, a symbol of our country itself and 
all that it stands for, but it was not our country itself. I think each 
of us still feels bound by those oaths.
  I took almost the same oath when I came here to the Senate. The 
obligation is the same: to defend what the Framers of the Constitution 
intended and never to give in to the passions of the moment, to the 
momentary urge to try to respond to something emotional that, no matter 
how much the emotion is genuine, and it is, takes away from the larger 
principle and larger set of values that guide our country.
  I think it would be a grave mistake if we broke those oaths in the 
Senate today. We need to listen to the voices of patriotism which urge 
us to do our real duty. Our former colleague, one of the best and 
bravest men I know, Senator John Glenn, said:

       [T]hose 10 amendments we call the Bill of Rights have never 
     been changed or altered by one iota, not by one word, not a 
     single time in all of American history. There was not a 
     single change during any of our foreign wars, and not during 
     recessions or depressions or panics. Not a single change when 
     we were going through times of great emotion and anger like 
     the Vietnam era, when flag after flag was burned or 
     desecrated. There is only one way to weaken our nation.

  Senator Glenn said:

       The way to weaken our nation would be to erode the freedom 
     that we all share.

  Gary May, who lost both his legs above the knee after a landmine 
explosion in Vietnam--a veteran who was awarded the Bronze Star with 
combat ``V'' and the Purple Heart--spoke for all of us when he said:

       [A]s offensive and painful as flag burning is to me, I 
     still believe that those dissenting voices need to be heard. 
     . . . The freedom of expression, even when it hurts, is the 
     truest test of our dedication to the belief that we have that 
     right.

  This is not a test of who loves the flag; this is a test of who has 
the courage to protect the Constitution.
  Mr. President, as I said, I think every single American feels the 
same emotions when they see the flag. I have seen it in so many 
different kinds of circumstances where I have been moved and touched by 
what it does symbolize to us. But our flag is, in the end, not the Bill 
of Rights. It does not carry in it the freedoms that are expressed in 
the Bill of Rights. It symbolizes those freedoms. The fact is, who we 
are is embodied, above all, in a document that has not been changed 
since the beginning. A desecrated flag is replaceable. Desecrated 
rights are lost forever.
  What makes the United States different, I think in many ways stronger 
than any other nation, is our ability to be able to tolerate opinions 
we do not agree with, to tolerate diversity, to tolerate the aspiration 
for a people to be able to express themselves even when we disagree. 
That is what is different about the United States. Thanks to our 
Constitution, we are the leading proponent on the face of the planet 
for the greatest experiment in freedom set forth in words and in 
practice.
  At the end of our national anthem we sing, with hand over chest, to 
the flag: ``land of the free and home of the brave.'' If this amendment 
passes, make no mistake about it, we will be a little less free and we 
will be a little less brave.
  Ivan Warner, an American soldier who was imprisoned by the North 
Vietnamese from 1967 to 1973, wrote:

       I remember one interrogation where I was shown a photograph 
     of some Americans protesting the war by burning a flag. 
     ``There,'' the officer said. ``People in your country protest 
     against your cause. That proves you are wrong.''

  And this prisoner of war, not knowing if he would ever be returned to 
America or whether he would be tortured for what he said, said:

       ``No. That proves that I am right. In my country we are not 
     afraid of freedom, even if it means that people disagree with 
     us.'' The officer [who was interrogating him] was on his feet 
     in an instant, his face purple with rage. He smashed his fist 
     into the table and screamed at [Ivan] to shut up.

  And Ivan said:

       While he was ranting I was astonished to see pain, 
     compounded by fear, in his eyes. I have never forgotten that 
     look, nor have I forgotten the satisfaction I felt at using 
     his tool, the picture of the burning flag, against him.

  In the words of Ivan Warner:

       We don't need to amend the Constitution in order to punish 
     those who burn our flag. They burn the flag because they hate 
     America and they are afraid of freedom. What better way to 
     hurt them than with the subversive idea of freedom? Spread 
     freedom. . . . Don't be afraid of freedom.

  In the final analysis, there are eight other powerful reasons for why 
we should not do this. They are Iran, Libya, North Korea, China, Cuba, 
Syria, and the Sudan. And of the many nations--there are about 30-plus 
of them--that have laws about not burning the flag--even a few of our 
friends--none of them have a constitution that prohibits it. I do not 
think the United States of America ought to join those countries, 
including Iraq under Saddam Hussein, the South Africa of apartheid, and 
Nazi Germany.
  So I ask my fellow Senators, are we really that frightened of 
somebody's willingness to go out and be stupid? In the United States of 
America, you have a right to be stupid. You have a right to go out and 
do something that every one of us thinks is dishonorable or 
unacceptable. And communities can punish those people in any number of 
ways. I have voted previously for a statute in the U.S. Senate because 
I believe a statute is enforceable and does less violence to the 
Constitution. And there are plenty of ways for prosecutors--on 
disturbance of the peace or destruction of personal property or any 
other numbers of ways--to prosecute people. But, in the end, a 
community of Americans, whose love of flag is so great, is going to 
ostracize anybody who engages in that kind of behavior. Communities 
have the ability to make sure they do not get jobs, to make sure they 
are persona non grata within the community.
  It is unbelievable to me, with only two flags we know of being burned 
in this last year--something like eight or so in the last 365 days in 
America--that this prompts Senators to feel they have to change the 
Constitution for the first time and the first amendment for the first 
time. I think it is wrong. I think our country is bigger than that, and 
I hope our colleagues in this institution will be today.
  Mr. DAYTON. Mr. President, ever since I began my campaign for the 
U.S. Senate over 6 years ago, I have consistently promised to support 
the proposed constitutional amendment to prohibit the desecration of 
the American Flag. Indeed, I am a cosponsor of that constitutional 
amendment, which will soon be voted upon by the Senate.
  I value and respect the first amendment's protection of free speech, 
and I have personally experienced its importance. When I opposed the 
Vietnam War in the 1960s and '70s, the first amendment permitted my 
lawful dissent, although it did not prevent President Richard Nixon's 
Justice Department from tear-gassing our demonstrations or from 
unlawfully spying upon

[[Page 12630]]

me. A generation and another war later, the first amendment again 
protected my right to speak out against President Bush's policies 
without intimidation or incarceration, and, this time, without being 
tear-gassed. I would never infringe upon those precious freedoms of 
expression and dissent.
  The question before us today is not whether we honor the first 
amendment, which we do, but, rather, whether an act as vile as burning 
the American flag should be considered ``free speech'' or is it an act 
of such wanton violence and outrageous disrespect that it should be 
``out of bounds''? I come to the second conclusion.
  Our Nation's Pledge of Allegiance was first published almost 114 
years ago and was established by Congress in 1923. It states, ``I 
pledge allegiance to the flag of the United States of America, and to 
the Republic for which it stands, one nation under God, indivisible, 
with liberty and justice for all.''
  I note, parenthetically, that the U.S. Supreme Court ruled in 1943 
that under the first amendment no one can be compelled to recite the 
Pledge of Allegiance. Nevertheless, it is one of our most revered 
statements of citizenship. It does not pledge allegiance to a 
Democratic or a Republican administration. It does not pledge 
allegiance to any ideology, policy, or platform.
  It pledges allegiance to the flag of the United States of America--
and to the Republic for which it stands, one nation, under God, 
indivisible, with liberty and justice for all. In other words, 
allegiance to something above any one of us. To something that unites 
us as one people indivisible, with liberty and justice for all.
  Those are our Nation's founding principles. They are our eternal 
ideals. We can disagree; we can dissent; we can lawfully protest; we 
can say almost anything we want and do most of what we want, because 
those are our rights. They are precious, inviolable rights.
  But we also have responsibilities. This great country cannot succeed, 
if we concern ourselves with nothing more than our rights as 
individuals. We must equally consider our responsibilities as citizens.
  This Constitutional amendment says that one of those responsibilities 
of citizenship is to not burn or otherwise desecrate our American flag. 
I am astounded that the U.S. Supreme Court could construe that as free 
speech, but it has. This amendment would simply permit Congress to 
declare otherwise and to place that senseless act of desecration 
outside the boundary of freedom of speech, just as the Supreme Court 
recently ruled burning a cross outside that boundary of protected free 
speech.
  I am willing to take this carefully considered action, because of 
what I know the American flag means to millions of American citizens. 
Many of them are relatives or friends of heroic Americans who have 
given their lives to defend our country. In my view, those great 
American heroes have consecrated our flag with their precious blood. 
Honoring our flag honors their extraordinary sacrifices, as it honors 
the principles and ideals for which they died.
  That is why I will vote for this constitutional amendment.
  Mr. OBAMA. Mr. President, I rise today to speak in opposition to the 
proposed constitutional amendment.
  There have been so many moments in our history where the flag was not 
just a piece of cloth. It was a focal point that united this country 
through both our most difficult days and our proudest moments. This is 
the flag that inspired Francis Scott Key in Baltimore Harbor during the 
War of 1812. It is the flag that Illinois soldiers rallied to during 
the Battle of Gettysburg. It is the flag that marines raised over Mount 
Suribachi on Iwo Jima during a battle that claimed 6,800 American 
lives. It is the flag that Neil Armstrong and Buzz Aldrin planted on 
the surface of the moon. It is the flag that was draped over the 
charred Pentagon following the September 11 attack. It is the flag that 
rests atop the caskets of the men and women who give the ultimate 
sacrifice in Iraq and Afghanistan.
  I cannot imagine anything more abhorrent to a veteran than seeing the 
flag they fought for, or watched their good friends die for, being 
burned to make a political point. Although I have not served in the 
military, I too have great pride in our flag, as do the overwhelming 
majority of Americans. I share outrage at the thought of its being 
disrespected. I have never seen anyone burn a flag. And if I did, it 
would take every ounce of restraint I had not to haul off and hit them.
  But we live in a country of laws. Laws that stop people from 
resorting to physical violence to settle disagreements. Laws that 
protect free speech. The primacy of the law is one of the things that 
protects us, one of the things that makes us great.
  When I took this job last year I was asked to swear an oath of 
office. It is a short, simple oath, and everyone in this Chamber has 
repeated it. It begins: ``I do solemnly swear that I will support and 
defend the Constitution of the United States against all enemies, 
foreign and domestic; that I will bear true faith and allegiance to the 
same.'' Our first allegiance here is not to a political party, or to an 
ideology, or to a President, or even popular opinion, it is to the 
Constitution and to the rule of law.
  Senator Byrd often talks about the Constitution as a remarkable 
document that transformed a revolutionary movement to a stable 
government that has lasted more than 200 years and is the envy of the 
world. He is right.
  The Constitution has only been amended 27 times. The amendments 
include guarantees of our most basic freedoms, the freedom of religion, 
the right to a trial by jury, the protection against cruel punishment. 
The amendments also chronicle the great struggles of this country. The 
13th amendment abolished slavery in 1865. The 17th provided for the 
direct election of senators in 1913. The 19th amendment gave women the 
right to vote in 1920. The 24th eliminated the poll tax in 1964.
  The Framers established a high bar for amending the Constitution, and 
for good reason. It is difficult to amend the Constitution because our 
founding document should not be changed just because of political 
concerns or temporary problems. The Constitution should only be amended 
to address our Nation's most pressing problems that can't be solved 
with legislation. But even the supporters of this amendment are hard 
pressed to find more than a few instances of flag burning each year.
  Today, there are hundreds of thousands of U.S. troops risking their 
lives for their country, looking to us to come up with a plan to win 
the peace so they can come home. Across America, there are millions who 
are looking for us to do something about health care, about education, 
about energy. We are only supposed to be in session for about 50 more 
days for the rest of this year. To spend the precious time we have left 
battling an epidemic of flag burning that does not exist is a 
disservice to our country.
  Mr. President, 141 years ago, Congress passed--and the States 
approved--the 13th amendment to end slavery. A century and a half 
later, Americans can look back at that effort and be proud. What will 
Americans 141 years from now think if we pass the 28th amendment to ban 
flag burning? Will they breathe a sigh of relief that we made the world 
safe from flag burners? Or will they see this for what it is: an effort 
to distract, an effort to score political points, an effort to use the 
same flag that should unite us to instead divide us? I believe they 
will laugh and shake their heads.
  During this debate, we have heard much about Colin Powell's 
opposition to this amendment. I am moved by his statement that:

       I would not amend that great shield of democracy to hammer 
     a few miscreants. The flag will still be flying proudly long 
     after they have slunk away.

  His view is shared by the many calls and letters I have received from 
Illinois veterans. All of them full of honest passion, and all of them 
sharing a common love of flag and country. I want to read a bit from a 
few of the letters I received.
  Richard Savage of Bloomington wrote me:

       I am a Vietnam veteran and Republican. . . . Those who 
     would burn the flag destroy

[[Page 12631]]

     the symbol of freedom, but amending the Constitution would 
     destroy part of freedom itself.

  Marci Daniels from Edwardsville wrote:

       I am a veteran and I oppose the flag amendment. I did not 
     put my life on the line for the flag, but for the 
     Constitution and the freedoms it guarantees.

  Terrence Hutton of Winnetka wrote:

       As a Vietnam war veteran, I did not like the steady fare of 
     flag-burnings we seemed to see on TV and in the print media 
     back in those unhappy days, but I accepted them as part of 
     the price we pay as a free society. . . . We have survived 
     this long without a flag-burning provision in the 
     Constitution and can go right on surviving without one.

  These are all proud Americans, veterans. They know that we should not 
play politics with the Constitution. We shouldn't distract voters in an 
election year, when there are so many common challenges we face and so 
little time to face them.
  There is, in fact, another way. There is a way to balance our respect 
for the flag with reverence for the Constitution. Senators Clinton and 
Bennett are proposing an amendment to this proposal that would protect 
the flag without amending the Constitution. Their statutory approach is 
a new one that doesn't fall into the same constitutional traps that 
doomed previous flag protection bills. The Clinton-Bennett amendment is 
narrowly drawn to meet the first amendment tests the Supreme Court has 
laid out in previous court decisions. It makes it illegal to burn a 
flag in a threatening way or to incite violence. I believe this statute 
will pass constitutional muster and be upheld by the Supreme Court.
  I will vote for the Clinton-Bennett amendment in an effort to find a 
way to balance our respect for the flag and our protection of the 
Constitution. I urge my colleagues to do the same.
  Mr. NELSON of Florida. Mr. President, I intend to vote in favor of 
this resolution.
  The flag is a sacred symbol to this country and its citizens. Men and 
women have given their lives to protect the ideals embodied in the 
flag, and it's a unifying representation of America and all that we 
value. I believe it is a symbol worthy of protection.
  This resolution will give Congress the ability to consider 
legislation that will protect the flag and prevent its desecration.
  Mr. CONRAD. Mr. President, today I will support the Durbin amendment 
to pass a statute to protect the flag and address the very real problem 
of protests at military funerals.
  I was recently at a funeral for a North Dakota soldier, and I was 
disgusted--absolutely disgusted--by the behavior of protesters who used 
the funeral to convey their twisted message of hatred for our soldiers 
and their families. The Durbin amendment would restrict these protests 
from the immediate area of the funeral, and it would protect the flag 
without amending the Constitution of the United States for that 
purpose.
  Anybody who advances an amendment to the Constitution has to clear a 
very high threshold. The Constitution of the United States is one of 
the greatest documents in human history. It is not to be amended 
lightly. And it should certainly not be amended when there are other 
ways of addressing a problem.
  In our history, more than 10,000 amendments to the Constitution have 
been proposed. Only 27 have been approved. Since I have been in the 
Senate, more than 850 constitutional amendments have been offered.
  Thank goodness we have not adopted them. Many of them would have made 
that document worse. Many of them would have done things that ought to 
be done by statute.
  The Constitution is a framework. It does not deal with specifics. It 
deals with the larger framework of how this Government should operate. 
Individual laws, individual statutes are meant to deal with the 
specific problems that we encounter as a society within the framework 
provided by the Constitution. Some would have us change that basic 
organic document to deal with this problem. I believe that would be a 
mistake that we would come to regret.
  Flag burning and flag desecration are unacceptable to me and 
unacceptable to a majority of Americans. They are certainly 
unacceptable to the people of the State that I represent. But the first 
answer cannot and should not be to amend the Constitution of the United 
States.
  Of course, it is unacceptable to engage in flag desecration. Of 
course, it is abhorrent to desecrate the flag. We do not need to amend 
the Constitution to address these few instances of deplorable conduct. 
We have an alternative. The alternative is to pass a statute.
  The proponents of the constitutional amendment will say that the 
statutory alternative will be ruled unconstitutional, as has the 
previous attempt to pass a statute.
  But this statute has not been ruled unconstitutional, and a range of 
constitutional experts believe it would pass constitutional muster. 
They are saying to us this statute would be upheld. It is my view that 
we ought to see if they are right before we conclude that the only 
alternative is to amend our Constitution. We ought to give the Supreme 
Court a chance to look at this statute, and see if we can find a way to 
protect the flag by statute before we amend the Constitution.
  I am not alone in taking this position. I have heard from 
distinguished veterans all across my state and all across the country 
who agree that the Constitution does not need to be amended to protect 
the flag.
  For example, Rick Olek, a 22-year member of the American Legion, a 
combat veteran, and a Purple Heart recipient, has written:

       As a combat veteran, I fought for this country and I 
     respect our flag, but I also respect the rights of freedom of 
     speech. The position of Senators Conrad and Dorgan on the 
     flag amendment is consistent with protecting first amendment 
     rights as well as protecting our flag.

  Similarly, Mike Dobmeier, former National Commander of the Disabled 
American Veterans, says:

       I fought--and many of my comrades died--to protect the 
     freedom and ideals the U.S flag embodies. Senator Conrad 
     understands our sacrifice and he is working tirelessly to 
     protect Old Glory. Last year he introduced bipartisan 
     legislation that would criminalize the desecration of our 
     flag, rather than changing the Constitution. Senator Conrad 
     knows that we can protect our flag without infringing on the 
     precious freedom it represents.

  And Brad Maasjo, a retired Air Force Colonel from Fargo, ND, writes:

       There is a poem that says in part that `. . . it is the 
     soldier, who fights for the flag . . . whose coffin is draped 
     by the flag . . . who wins the right to protest the flag. . . 
     .'' Maybe if we take away that right, we also lose sight of 
     what he fought for in the first place.

  These are just a few of the people I have heard from, proud North 
Dakota veterans who support the flag but also revere our Constitution. 
They tell me that they abhor flag desecration, but that the flag is a 
symbol for the liberties and freedoms they fought to protect. They do 
not want to rush to amend the Constitution when there are other options 
available.
  Finally, GEN Colin Powell, Secretary of State Powell, has written the 
Congress to say he does not believe that the appropriate response is to 
amend the Constitution of the United States. GEN Colin Powell, former 
Chairman of the Joint Chiefs of Staff, the man who led us in Desert 
Storm, a man for whom I have profound respect says:

       I understand how strongly so many of my fellow veterans and 
     citizens feel about the flag and I understand the powerful 
     sentiment in state legislatures for such an amendment. I feel 
     the same sense of outrage. But I step back from amending the 
     Constitution to relieve that outrage. . . . I would not amend 
     that great shield of democracy to hammer a few miscreants. 
     The flag will be flying proudly long after they have slunk 
     away.

  I urge my colleagues to step back from the constitutional amendment 
and instead support the Durbin amendment. This is the wiser course. It 
is the right course. It is one that will stand the test of time.
  Mr. AKAKA. Mr. President, I rise today in opposition to S.J. Res. 12, 
the flag desecration constitutional amendment.
  I believe our flag is a living symbol that represents this great 
country and its rich history. As a World War II veteran, I feel a deep 
connection to our

[[Page 12632]]

flag, and it offends me when I see the flag burned or treated poorly. 
Our flag deserves our reverence and respect.
  As a U.S. Senator, I have sworn to protect the Constitution and the 
freedoms for which it stands. I believe it would be wrong to amend the 
Constitution to infringe upon our first amendment freedoms. Although I 
find it personally detestable that someone would desecrate the flag, it 
is my duty to protect the right to free speech and expression. To me, 
this amendment would protect our Nation's preeminent symbol at the cost 
of sacrificing the very freedoms that it is supposed to represent.
  This amendment is all the more troublesome because it is wholly 
unnecessary. Americans are not lacking in patriotism nor is there an 
epidemic of flag burning. To the contrary, in these five years since 
the tragic events of September 11, 2001, Americans have vigorously 
rallied around our flag and the liberties it represents.
  For these reasons, Mr. President, I will be opposing S.J. Res. 12, 
and I urge my colleagues to do the same.
  Mr. LEVIN. Mr. President, the American flag is a cherished symbol of 
our freedom and the democratic values and liberties that we believe in, 
and we should respect the flag as a reminder of the bravery of the men 
and women who have lost their lives fighting under its colors for our 
country. One of the most poignant images to a patriotic American is 
when that flag is draped over the coffin of a fallen soldier.
  I detest flag burning. To deliberately desecrate the flag is an 
insult to anyone who has fought to defend it and to all of us who love 
it. Any person who destroys such an important reminder of sacrifice and 
patriotism deserves the scorn of all decent men and women.
  Although I love the flag, I also love the Constitution and its Bill 
of Rights. For more than 210 years, this timeless document has 
protected our most basic freedoms. The Supreme Court has ruled that a 
physical attack on the flag is a protected form of speech under the 
first amendment.
  In 1984, Gregory Johnson publicly burned an American flag as a means 
of political protest and was convicted of desecrating a flag in 
violation of Texas law. In Texas v. Johnson, the Supreme Court held 
that, although ``the government has a legitimate interest in making 
efforts to `preserv[e] the national flag as an unalloyed symbol of our 
country,''' Johnson's burning of the flag was constitutionally 
protected speech.
  In response to that decision, Congress passed the Flag Protection 
Act, a Federal law to prohibit flag-burning and other forms of 
desecration. I supported that legislation, but the Supreme Court found 
it unconstitutional in United States v. Eichman. The Court found that 
the statute suppressed constitutionally protected expression, and held:

       The Government's interest in protecting the ``physical 
     integrity'' of a privately owned flag rests upon a perceived 
     need to preserve the flag's status as a symbol of our Nation 
     and certain national ideals. But the mere destruction or 
     disfigurement of a particular physical manifestation of the 
     symbol, without more, does not diminish or otherwise affect 
     the symbol itself in any way. . . . While flag desecration--
     like virulent ethnic and religious epithets, vulgar 
     repudiations of the draft, and scurrilous caricatures--is 
     deeply offensive to many, the Government may not prohibit the 
     expression of an idea simply because society finds the idea 
     itself offensive or disagreeable.

  Now that the Court has decided that flag burning as a means of 
expression is constitutionally protected, the question for the Senate 
is whether to amend the Constitution to ban such speech. Our 
Constitution has been amended only 17 times since the adoption of the 
Bill of Rights in 1789. The Bill of Rights has never been amended. I 
believe that to deliberately weaken the first amendment rights of all 
Americans is not the answer to those very few who attack a symbol of 
freedom.
  Senator John Glenn, an American hero who fought for our country 
through two wars and took our flag into space, eloquently expressed 
this view before the Judiciary Committee:

       [I]t would be a hollow victory indeed if we preserved the 
     symbol of our freedoms by chipping away at those fundamental 
     freedoms themselves. Let the flag fully represent all the 
     freedoms spelled out in the Bill of Rights, not a partial, 
     watered-down version that alters its protections.
       The flag is the nation's most powerful and emotional 
     symbol. It is our most sacred symbol. And it is our most 
     revered symbol. But it is a symbol. It symbolizes the 
     freedoms we have in this country, but it is not the freedoms 
     themselves.

  Steve Sanderson, a Michigan Vietnam-era veteran, expressed a similar 
view as quoted in the Detroit Free Press on June 14, 2006. He said:

       Veterans certainly cherish the flag, perhaps more than 
     civilians who have never been to war can realize. But 
     commitment is not confined to that symbol. I am hurt when I 
     see the flag burned, largely because I've also seen the flag 
     draped on coffins of troops. But my patriotism lives in my 
     heart and mind. We set a very dangerous precedent if we argue 
     that certain forms of speech should be restricted because the 
     majority disagrees with the message and how it is expressed.

  Mr. President, I love our flag. I love our Constitution. Flag 
desecration is repugnant, but it would be a mistake to let a flag 
burner cause us to weaken our first amendment guarantees. If we take 
this fateful step of singling out one symbol to exempt from the first 
amendment, will we next authorize Congress to make it a crime to rip up 
a copy of the Constitution or a copy of its Bill of Rights?
  The American flag symbolizes our freedom, and that includes freedom 
from an overreaching government that decides which symbols are worthy 
of protection. We are honoring our flag and the republic for which it 
stands by refusing to amend the Bill of Rights in response to a few 
misguided people.
  I do support the statute that will be offered as a substitute for the 
constitutional amendment, which provides that: ``Any person who shall 
intentionally threaten or intimidate any person or group of persons by 
burning, or causing to be burned, a flag of the United States shall be 
fined not more than $100,000, imprisoned for not more than 1 year or 
both.'' The Supreme Court has held that the first amendment does not 
provide full protection for what are called ``fighting words.'' or 
those words which, by their very utterance, inflict injury or tend to 
incite an immediate breach of the peace.
  Also, in Virginia v. Black, a case that involved the burning of a 
cross, the Supreme Court held that the government can prohibit people 
from burning crosses with the intent to intimidate. In that case, 
Virginia law prohibited cross burning through a statute that made it 
unlawful for any person to burn a cross with the intent of intimidating 
any person or group of persons. A majority of the Court held that it 
believed the substantive prohibition on cross-burning with an intent to 
intimate was constitutionally permissible. Writing for the majority, 
Justice O'Connor said:

       The protections afforded by the First Amendment, however, 
     are not absolute, and we have long recognized that the 
     government may regulate certain categories of expression 
     consistent with the Constitution . . . Thus, for example, a 
     State may punish those words ``which by their very utterance 
     inflict injury or tend to incite an immediate breach of the 
     peace. . . . We have consequently held that fighting words 
     ``those personally abusive epithets which, when addressed to 
     the ordinary citizen, are, as a matter of common knowledge, 
     inherently likely to provide violent reaction'' are generally 
     proscribable under the First Amendment.''

  The substitute also contains an important provision to support our 
military families in their time of grief. During the past year, a 
fringe religious group has held protests at more than 100 military 
funerals across the Nation, claiming that the deaths of U.S. soldiers 
is God's punishment of America. In May, Congress passed and the 
President signed into law the Respect for America's Fallen Heroes Act, 
which prohibits demonstrations at and around national cemeteries. This 
amendment would expand that Act to include military funerals at private 
cemeteries, funeral homes, and houses of worship. The families of the 
fallen have a right to be free to bury their loved ones and our heroes 
in peace.
  I support this narrowly drawn substitute because it both protects the 
flag, consistent with the Bill of Rights,

[[Page 12633]]

as well as honors those who have made the ultimate sacrifice while 
fighting under its colors.
  Ms. MIKULSKI. Mr. President, I rise to support the substitute offered 
by Senator Durbin to ban the desecration of our flag. The Durbin 
alternative stands for the same things I do. It protects the principles 
embodied in our Constitution--as well as our U.S. flag. It does not 
amend the Constitution, but it will get the job done by punishing those 
people who help wage war against the symbol of this country and 
everything it stands for.
  I know that we have gone down this road before, by passing statutory 
language to ban flag-burning only to have the Supreme Court overturn 
it. But this language has been specifically crafted so that it will 
pass constitutional challenge.
  It says you cannot get away with abusing the flag of the United 
States or using it to incite violence. This is an exception the Supreme 
Court has allowed. The Durbin substitute says you can't use this 
Nation's symbol of freedom and turn it into a symbol of disrespect.
  If there is a way to deal with and punish those who desecrate our 
U.S. flag without amending the Constitution, I am all for it. That is 
why I support the Durbin Substitute.
  I feel very strongly about this issue. I have voted for legislation 
to prohibit flag burning, and I have voted against amending the U.S. 
Constitution. Today, I will do so again.
  I take amending the U.S. Constitution very seriously. In the entire 
history of the United States we have only amended the Constitution 17 
times after the Bill of Rights. Seventeen times in over 200 years--
that's it.
  We have amended the Constitution to extend rights. We have amended 
the Constitution to end slavery, give women the right to vote, and 
guarantee equal protection of the laws to all citizens. The 
Constitution protects our liberty and it is the symbol of the strength 
of our Nation. I believe that it is my obligation as a Member of this 
body to protect its integrity and strength.
  So many of our veterans have fought to protect our flag and what it 
stands for in battle. They have defended our flag and the nation 
against foreign enemies. These men and women fought valiantly to 
protect America and this issue is very important to veterans, who fall 
on both sides of the debate.
  Many want an amendment to protect this important symbol of our 
Nation. Others know that the flag is a symbol of our freedom but our 
freedom endures beyond the cloth of the flag.
  I respect how strongly they feel about our flag and all that it 
stands for. I share their concerns and have seriously considered 
supporting a constitutional amendment.
  But, I have weighed the concern about protecting this national symbol 
with the need to defend our Constitution and the rights of free speech. 
I believe that the substitute offered by Senator Durbin strikes the 
right balance. My colleague from Illinois has offered an alternative to 
amending the Constitution that would protect the flag and protect the 
Constitution. I will support that alternative approach today.
  Yet, I can't help but be concerned about why we are raising this 
issue now. There has not been a sudden surge in flag burning. In fact, 
to the contrary, I see more Americans waving their flags proudly as 
they support our troops overseas. It disappoints me that we raise this 
issue now, instead of focusing on priorities that really matter to 
veterans.
  Instead of focusing on amending the Constitution, we should be 
standing up for our veterans where it really counts. Support for our 
military in the field must be matched by support for our veterans at 
home. This means deeds, not just words.
  There are 25 million veterans in the United States. These veterans 
served with honor, bravery and sacrifice. The way to thank them is with 
a commitment to veteran's healthcare, veteran's programs and veteran's 
services.
  Whether at Iwo Jima, Pork Chop Hill, the Mekong Delta, Falluja or the 
mountains of Afghanistan, our veterans shouldn't have to fight for the 
services they need and deserve at home. Instead of debating this 
amendment, the Senate should take up and pass Senator Akaka's Keeping 
Our Promise to America's Veterans Act.
  I am proud to cosponsor this bill, which does five things to provide 
real support to our veterans with deeds, not just with words. First, it 
makes sure veterans get full funding for veterans medical care by 
accounting for growing vets population and rising health care costs. 
Second, it provides mental health care to vets from Afghanistan and 
Iraq. Third, it allows VA hospitals to fill prescriptions written by 
private doctors. Fourth, the bill guarantees concurrent receipt of 
military retired pay and VA disability benefits. Finally, this bill 
makes it easier to take advantage of the G.I. bill by excluding G.I. 
benefits from financial aid eligibility computations.
  I am disappointed that the Senate has chosen to spend time on this 
debate, instead of taking up this important bill and keeping our 
promise to America's veterans. We are giving our veterans rhetoric 
instead of results, and I am deeply disappointed for Maryland's 500,000 
veterans, and veterans all across the Nation.
  Mr. HARKIN. Mr. President, I have come to the floor today to speak in 
opposition to the flag desecration amendment to the Constitution.
  If I were strictly following my emotions, I would no doubt favor this 
amendment. After all, I can imagine few acts more despicable, 
offensive, and cowardly than to deliberately desecrate the flag of the 
United States of America. But in considering this constitutional 
amendment, which for the first time would amend the Bill of Rights, we 
have a solemn responsibility to separate reason from passion. We have a 
responsibility to preserve and protect the Stars and Stripes of the 
United States of America. But even more importantly, we have a 
responsibility to preserve and protect the principles and rights for 
which it stands.
  Fortunately, instances of flag desecration in the United States are 
extremely rare. Nonetheless, there is no denying the emotions and anger 
that are incited even by the thought of someone desecrating the 
American flag. I myself feel those emotions and that anger. I believe 
that we all do. We all have memories that cut deep to the heart, and 
when we see the flag on fire it feels like something burning inside of 
us.
  I remember what the flag meant to my mother, an immigrant from what 
is now Slovenia, who came to America speaking just a few words in 
English. When I was growing up, the American flag was always proudly 
displayed in our home because, to my mother, that flag meant the 
freedom of her new country.
  I have not forgotten my mother's pride, and even now the American 
flag, standing proudly by my desk, is the first thing I see when I go 
to work in the morning and the last thing I see when I leave to go home 
at night.
  I remember, too, the friends I lost in Vietnam. I remember escorting 
the body of a fellow pilot to his home and presenting the American flag 
to his widow. The flag is our country's ultimate tribute to a fallen 
soldier.
  So it is with strong feelings--right here in my stomach and right 
here in my heart--of rage and disgust that I view those who would 
desecrate my flag, defile my memories, and dishonor my heritage.
  I think back to my days flying jets in the Navy.
  I think of the friends I had, and the friends I continue to have as a 
proud member of American Legion Post 562 in my hometown of Cumming, IA.
  Over the years, I have turned to my fellow veterans to see how they 
would vote on such an amendment. Some were for, some against. But I 
have been most impressed by the arguments of those who oppose a flag 
desecration amendment.
  Frankly, I expected my neighbor, who earned five Purple Hearts in 
combat, to be gung-ho for a constitutional amendment. But he told me he 
was absolutely opposed to an amendment. He said, ``I fought for 
freedom. I didn't fight for doing away with freedom.''

[[Page 12634]]

  An Iowa veteran I met at a coffee shop had this common-sense 
perspective. Speaking of the flag-burner in the case of Texas v. 
Johnson, he said: ``Look, this flag burner, this Greg Johnson, he's 
just one of a handful of kooks. Should we change the Bill of Rights, 
which has never been changed, for a handful of kooks?''
  Most moving to me was the article I read years ago in the Cedar 
Rapids Gazette by a former prisoner of war, James Warner.
  Let me read to you part of his article:

       It hurts me to see other Americans willfully desecrate the 
     flag. But I have been in a communist prison where I looked 
     into the pit of hell. I cannot compromise on freedom. It 
     hurts to see the flag burned, but I part company with those 
     who want to punish the flag burners.

  Mr. Warner went on to recount how, in a North Vietnamese prison camp, 
he was given a choice: He could renounce his country and leave, or stay 
and be tortured. James Warner chose to stay. The North Vietnamese tried 
to break his spirit but they couldn't. During one interrogation, his 
captor showed him a photograph of some Americans protesting the war by 
burning a flag.
  ``There,'' the North Vietnamese officer told him, ``People in your 
country protest against your cause. That proves you are wrong.''
  ``No,'' Warner said, ``That proves I am right. In my country we are 
not afraid of freedom, even if it means that people disagree with us.''
  In that moment, the interrogator was on his feet--his face purple 
with rage, according to Warner's account. There was also pain in the 
interrogator's eyes, compounded by fear. The Communist feared freedom; 
only freedom could be used to defeat him.
  Likewise, in 1989, the Chinese Communists feared the students in 
Tianamen Square who burned the Chinese flag. The students' protests 
were silenced with tanks and guns. As communism crumbled across Eastern 
Europe in the late 1980s, expressions of freedom took many forms: 
protests, speeches, underground newspapers, strikes--and yes, even flag 
desecrations. And when we saw those torn and burned flags, symbols of 
Communist domination, did we denounce these protestors for defiling 
their own State symbols? Of course not. We praised them for their acts 
of political defiance. Burning and tearing their flags represented a 
powerful act of political speech, a denunciation of the communist 
regimes that had oppressed those countries for decades.
  And once the Communist regimes began to fall, what came next? Calls 
for Western-style guarantees of rights to freedom of the press, freedom 
of association, and freedom of speech. Many called for a constitution. 
They knew what some of us seem to forget: That the only way those 
freedoms can be protected is with an inviolable Bill of Rights such as 
our own. A Bill of Rights that has stood unchanged for more than two 
centuries--despite Civil War, Depression, two world wars, and powerful 
internal movements of dissent. Even at those times of profound turmoil, 
we resisted any temptation to amend the Bill of Rights.
  As a veteran, I will never, ever do anything to show disrespect for 
the flag. At the same time, I will never, ever do anything that would 
diminish the freedom our flag represents.
  In our churches, synagogues, and mosques, we are taught not to 
worship the idols of our faith, but rather the ideals of our faith. 
Likewise, patriotism is not measured, first and foremost, by our love 
for the flag as a physical object, but by our love for the rights and 
ideas the flag stands for.
  I do not want to see the flag become another Golden Calf--an object 
to be worshipped for the sake of worshipping. The flag is only as 
powerful as the republic--and the rights and ideals--for which it 
stands.
  Back in 1990, when the Senate first debated--and rejected--a flag 
desecration amendment, I remember reading a letter to the editor of the 
Burlington, IA, Hawkeye, written by a World War II veteran who had 
volunteered for duty. He wrote:

       I served my country under the flag. I pledged allegiance to 
     the American flag, and to the Republic for which it stands. 
     `Stands' is the key. The flag stands for the government. The 
     government guarantees us free speech. My allegiance is to the 
     flag however it is displayed, cloth, paper, paint, or the one 
     that waves continuously in my mind. That one, in order to 
     burn, they would need to burn me. I like the Bill of Rights 
     just as it is. Exactly what the flag stands for.

  So wrote the veteran from Mount Pleasant, IA. And he concluded with 
these words: ``Isn't it better to put up with a few disgusting 
frustrating acts of free speech than to open a Pandora's box?''
  I have to agree with his characterization of this amendment as a 
``Pandora's box'' which, once opened, could lead to other proposals to 
punch holes in the Bill of Rights.
  Mr. President, I hope that the Senate will reject this amendment, 
once again. But I believe this debate can have a positive legacy--not 
by diminishing our rights as citizens, but by increasing public 
displays of the flag, increasing people's knowledge and understanding 
of the flag's history, and increasing good citizenship and public 
service.
  We are proud of the flag. Let us fly the flag.
  We are proud of the flag. Let us tell our children and grandchildren 
about what that flag represents, what it means and why so many died for 
it.
  That flag in my mother's house was not used as a tablecloth, it was 
not used as a scarf, it was not used as a piece of clothing. I grew up 
believing there was a proper way to hold the flag, a right way to 
display it. We need to take it a step further and educate people, young 
and old, as to the meaning behind the symbols--behind the flag and our 
Bill of Rights.
  Mr. President, next week we celebrate 230 years since our Declaration 
of Independence. Fireworks will recall the `rocket's red glare' and the 
`bombs bursting' overhead when those who were first to wear the uniform 
of the United States Armed Forces put their lives on the line.
  And in all of our 50 States, the American flag will be hailed, waving 
in the breeze over courthouses and city halls, public buildings and 
private homes. Pride will be felt and respect shown, not because it is 
mandated by law, but because it is embedded in our hearts.
  I can think of no more patriotic way to celebrate the Fourth of July, 
no better way to show respect for the American flag and for the 
principles for which it stands, than by voting against this proposed 
amendment to the Bill of Rights.
  Ms. SNOWE. Mr. President, I rise today to support in the strongest 
terms the proposed constitutional amendment to grant the States and 
Congress the power to prohibit the physical desecration of the flag of 
the United States.
  Our flag occupies a truly unique place in the hearts of millions of 
citizens as a solemn and sacred banner of freedom. As a national emblem 
of the world's greatest democracy, the American flag should be treated 
with unyielding respect and scrupulous care.
  At this time when Americans are fighting and, tragically, perishing 
under the flag of the United States, it is long overdue that we pass a 
constitutional amendment to protect that very symbol of American ideals 
from acts of desecration. We lost the effort by just 4 votes 6 years 
ago in the Senate. Meanwhile, the other body has done its duty and 
passed a bill twice. We in this chamber must finally do the right thing 
and protect our flag once and for all and for all time
  With the introduction of this resolution, we resume our effort to 
protect the greatest symbol of the American story and American 
experience. There is no more powerful example of freedom, democracy, 
and our steadfast commitment to those principles than the American flag 
, and it is altogether fitting and just that we try to ensure that it 
is publicly displayed with pride, dignity, and honor.
  I cannot underscore the point enough that the flag is not merely a 
visual icon to us, nor should it be. The American flag is not just 
another piece of cloth. It is not just another banner or logo or 
emblem. It is our revered testament to all that we have defended and

[[Page 12635]]

protected. Too many Americans have contributed too much and sacrificed 
too much . . . their labor, their passion, and in many cases their 
lives for the flag to be simply and frivolously regarded. The flag 
permeates our national history and relays the story of America in its 
most direct, and most eloquent terms. Indeed, knowing how the flag has 
changed--and in what ways it has remained constant--is to know the 
profound history and limitless hopes of this country.
  More than 220 years ago, a year after the colonies had made their 
historic decision to declare independence from Britain, the Second 
Continental Congress decided that the American flag would consist of 13 
red and white alternating stripes and 13 white stars in a field of 
blue. These stars and blue field were to represent a new constellation 
in which freedom and government of the people, by the people and for 
the people would rule. The colors of the flag are representative, as 
well. Red was to represent hardiness and valor, white was to represent 
purity and innocence and blue was to represent vigilance, perseverance 
and justice. And as we all know, the constellation has grown to include 
50 stars, but the number of stripes has remained constant. In this way, 
the flag tells all who view it that no matter how large America may 
become, she is forever rooted in the bedrock principles of freedom and 
self-government that led those first 13 colonies to forge a new nation.
  Even more significant is the fact that the flag also represents our 
enduring pledge to uphold these ideals. This dedication has exacted a 
high human toll, for which many of America's best and brightest have 
given their last full measure of devotion. It is in their memories and 
for their ultimate sacrifice to America's ideals that I am proud to 
support this amendment.
  Make no mistake, this amendment is necessary because the Supreme 
Court, in its 1990 U.S. verses Eichman ruling, held that burning the 
flag in political protest was constitutionally protected free speech. 
No one holds our right to free speech more dearly than I do. But I have 
long held that our free speech rights do not entitle us to consider the 
flag as merely personal property, to be treated any way we see fit, 
including its desecration for the purpose of political protest. The 
fact is the Eichman decision unnecessarily rejects the deeply held 
reverence millions of Americans have for our flag. With all the forums 
for public opinion available to Americans every day, from television 
and radio, to newspapers and Internet chat rooms, Americans are 
afforded ample opportunity to freely and fully exercise their first 
amendment rights, even if what they have to say is overwhelmingly 
unpopular with a majority of American citizens. At the heart of the 
issue is respect. I applaud the right to protest and to assemble in 
order to express opinion, dissent, or a point of view. Write letters to 
the editor. Start a website. Create a blog. Organize. Leaflet. March. 
Chant. Speak out. Petition. Do any and all of these things but do not 
burn our flag.
  As we consider this amendment, we must also remember that it is 
carefully drafted to simply allow the Congress and individual State 
legislatures to enact laws prohibiting the physical desecration of the 
flag, if they so choose. It certainly does not stipulate or require 
that such laws be enacted, although many States and the Federal 
Government have already demonstrated widespread support for doing so. 
In fact, 48 States, including my own State of Maine, along with the 
Federal Government, have had antiflag burning laws on their books for 
years and that was prior to the Supreme Court's rulings on this issue. 
So, in effect, what this resolution does is simply give the American 
flag the protection that almost all the States, the Federal Government, 
and a large majority of the American people have already endorsed.
  Whether our flag is flying over the U.S. Capitol, a State house, a 
military base, a school, Fenway Park, or on a flag pole on Main Street, 
the stars and stripes represent the ideals and values that are the 
foundation of this great Nation. Our flag has come to not only 
represent the pride we have for our Nation's past glories, but also to 
stand for the hope we all harbor for our Nation's future.
  Perhaps it was The Reverend Henry Ward Beecher who captured best the 
essence of the flag's meaning and symbolism more than a century ago 
when he wrote that ``a thoughtful mind, when it sees a nation's flag, 
sees not the flag only, but the nation itself and whatever may be its 
symbols, its insignia, he reads chiefly in the flag the government, the 
principles, the truths, the history which belongs to the nation that 
sets it forth.''
  Mr. President, our flag represents not just the new constellation of 
freedom envisioned by our forebears, but the distillation of that 
freedom, too everything that was behind the forming of our nation and 
everything that informs our nation and who we are to this day. So, it 
is with undaunted pride and unwavering hope that I urge my colleagues 
to support this amendment.
  Mr. DOMENICI. Mr. President, I rise today in support of the flag 
protection amendment, S.J. Res. 12.
  This amendment was precipitated by the Supreme Court's ruling in 
Texas v. Johnson, which overturned a law which prohibited flag burning. 
The ruling made the burning of the American flag a legitimate exercise 
of free speech.
  I believe freedom of speech, guaranteed in the first amendment, is 
one of the fundamental freedoms the Founding Fathers sought to protect 
since it is the basis for every other freedom we enjoy. However, in the 
past the Supreme Court has ruled that freedom of speech is not an 
absolute freedom. For example, it is unlawful to yell ``fire'' in a 
crowded auditorium, and it is also illegal to threaten to harm the 
President of the United States.
  I disagree with the Supreme Court's analysis of flag burning. The 
Supreme Court erred in equating free speech with the desecration of the 
American flag. The act of desecrating the American flag goes beyond 
merely expressing a point of view--it is a violent act against the 
symbol of our Nation. It is not an act of free speech. Every American 
is free to denounce our Nation and ideals for which the flag stands. 
Frankly, I think it would be terribly misguided, but if that is what 
they want to say, they have the right to say it. There is a vast 
difference, however, between speaking one's mind and desecrating the 
symbol of our Nation.
  The American flag is a unifying symbol of our Nation and is 
considered by many to be the physical embodiment of the founding 
principles of this country. The predominance our flag holds in the 
national psyche was reconfirmed after the September 11 attacks, when 
the vision of the red, white and blue galvanized our Nation.
  The American flag is not just a piece of cloth. It is a symbol of 
freedom and of the sacrifice it takes to gain that freedom. The red 
stripes are there to remind us of the blood that was and continues to 
be shed in defense of this Nation.
  I have the deepest reverence for the U.S. Constitution, and I do not 
believe it should be amended casually. However, in this case, I believe 
the American flag and all it represents deserves the protection of our 
laws. Therefore, I have decided to support a constitutional amendment 
that would require due respect for this great symbol of freedom.
  Mr. FEINGOLD. Mr. President, I understand the desire of my colleagues 
to defend the flag, and I share their outrage at the despicable conduct 
that some families of fallen servicemembers have had to endure as they 
bid farewell to their loved ones. But I cannot support the substitute 
amendment offered by the senior Senator from Illinois. The Supreme 
Court has twice held that criminalizing flag desecration violates the 
first amendment. Flag burning is unacceptable, but outlawing certain 
forms of flag destruction based on the message that the misguided 
person is trying to convey raises obvious first amendment problems.
  The vast majority of flag desecration incidents can be prosecuted 
under criminal trespass, destruction of private property, and other 
State and local criminal statutes. We do not need a Federal statute to 
handle the handful

[[Page 12636]]

of other incidents that occur each year, and we certainly should not 
amend the Constitution to make such a statute possible.
  Mr. INHOFE. Mr. President, today this Chamber considers whether to 
send a constitutional amendment to the States and people of the United 
States, a United States that is represented by that glorious flag that 
stands to your right, Mr. President.
  This is not the first time the people's elected representatives have 
acted to protect the flag, but as a result of a willful judicial 
resolve, we are forced to take this decisive action as the people's 
duly elected policymakers.
  I find it highly doubtful that the Framers intended the first 
amendment to cover flag desecration as protected speech. I find it even 
more unlikely that they intended the courts to be able to tell Congress 
that it cannot protect our flag. Quoting Alexander Hamilton, in The 
Federalist No. 78, it is Congress who ``prescribes the rules by which 
the duties and rights of every citizen are to be regulated,'' not the 
courts. This is a principle I have consistently stood for and will 
stand for again when I vote in favor of S.J. Res. 12. When I see images 
on the news of different groups around the world burning American 
flags, it sickens my stomach. That is not speech: that is chaos. That 
is the mob mentality that is rebelliousness. That is conduct that 
appeals to the deepest and darkest parts of human nature. That is not 
the kind of riotous conduct that should be protected in this Nation; 
this amendment will allow us to make that clear once and for all.
  I have heard some say--Justice Brennan in Eichmann--that allowing 
protesters to burn the flag is the greatest tribute to that flag, that 
what the flag stands for allows those who hate it to abuse it. Though I 
understand the merits of this argument, I disagree that it gives any 
kind of real reason to allow this behavior. This pseudo reverent 
justification could also defend spitting on our soldiers returning from 
duty or the hateful, vile-spewing protesters who want to defile the 
funerals of our Nation's heroes. After all, it is our soldiers who give 
these protesters a free country in which to protest.
  Opponents say that one has a right to burn the flag. I say that we 
have a right not to have our flag burned. Countless soldiers and 
citizens have given their lives defending what this flag stands for. It 
is time that we, as the Congress of the United States, stand up and 
defend our flag, that we recognize that our national symbol that 
represents our system of laws is worthy of the protection of our laws.
  Mr. SESSIONS. Mr. President, the amendment we are debating is short 
and to the point. It contains only 17 words:

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

  We are discussing this today because in 1989, in Texas v. Johnson, 
five members of the Supreme Court held that flag desecration--
specifically burning the American flag--was a form of first amendment-
protected speech and Texas's law banning desecration of the flag was 
unconstitutional. Adding insult to injury, when Congress passed the 
Flag Protection Act of 1989, codified as title 18, section 700 of the 
United States Code, five members of the Supreme Court struck down that 
law as unconstitutional, too, in United States v. Eichman, 1990.
  I believe the amendment we are considering today is entirely 
appropriate, and I am proud to cosponsor it. I wish to respond briefly 
to some of the criticism I have heard. Some would say: Well, you want 
to limit free speech when you want to stop burning the flag.
  Now, it is true that the Supreme Court, by a 5-to-4 majority, held 
that the act of burning a flag is free speech. Well, I don't agree. The 
Supreme Court for a long time has allowed reasonable ``time, place, and 
manner'' restrictions on speech.
  Moreover, the Supreme Court has long recognized that:

       [t]here are certain well-defined and narrowly limited 
     classes of speech, the prevention and punishment of which 
     have never been thought to raise any Constitutional problem. 
     These include the lewd and obscene, the profane, the 
     libelous, and the insulting or `fighting' words--those which 
     by their very utterance inflict injury or tend to incite an 
     immediate breach of the peace.

  The late Chief Justice Rehnquist wrote in his dissent in Texas v. 
Johnson: ``Far from being a case of `one picture being worth a thousand 
words,' flag burning is the equivalent of an inarticulate grunt or roar 
that, it seems fair to say, is most likely to be indulged in not to 
express any particular idea, but to antagonize others.'' It is not 
really ``speech'' at all, but if you consider it some sort of 
expression, it is certainly inarticulate. It is not of great value 
compared to the unifying symbol of the flag.
  The first amendment is about intelligent debate, argument, concern 
over policy issues--not whether you get to ``grunt'' or ``roar'' by 
burning a flag. I don't believe flag-burning was ever intended to be 
covered by the Constitution. So I believe the Supreme Court got it 
wrong in Texas v. Johnson and United States v. Eichman.
  More importantly, the American people agree that the Supreme Court 
got it wrong. All 50 States have asked Congress to propose an amendment 
prohibiting flag desecration. In our democracy, the people have the 
last say on the Constitution. If the people think the Supreme Court is 
wrong, they have every right to amend the Constitution and tell it so.
  In my view, the flag of the United States is a unique object, and 
prohibiting its desecration will not in any fundamental way alter the 
free expression of ideas in this country.
  It seems to me if burning the flag is speech and if the Court is 
correct in saying it is speech and the people of the United States care 
deeply about protecting the flag, then they should adopt a restricted, 
narrow constitutional amendment that would allow Congress to stop flag 
desecration.
  Indeed, it would be healthy for this country to adopt a 
constitutional amendment that would allow the protection of the flag. 
More Medals of Honor have been awarded for preserving and fighting to 
preserve the flag than any other. We know the stories of battle when 
time after time the soldier carrying the flag is the target of the 
enemy. When he fell, another one would pick it up. When he fell, 
another one would pick it up. When he fell, another one would pick it 
up. That is the history.
  We pledge allegiance to the flag, not the Constitution, not the 
Declaration of Independence. We pledge allegiance to the flag because 
it is a unifying symbol for America, and having a special protection 
for it is quite logical to me.
  I do not believe we should never amend the Constitution. I do not 
think we amend the Constitution enough. But we want to have good 
amendments that are necessary, that are important, that enrich us, and 
that make us a stronger nation. In 1816, Thomas Jefferson wrote: ``Some 
men look at constitutions with sanctimonious reverence, and deem them 
like the ark of the covenant, too sacred to be touched.'' Jefferson 
disagreed and proposed amending a constitution every 20 years or so so 
that it could ``be handed on, with periodical repairs, from generation 
to generation, to the end of time, if anything human can last so 
long.''
  I don't know whether we need to amend the Constitution every 20 
years, as Thomas Jefferson proposed, but I do think a constitutional 
amendment is a healthy way for us to remind ourselves that this Nation 
is a democratic republic. We are not a nation under the rule of the 
Supreme Court. The Constitution belongs to ``We the People of the 
United States,'' as its preamble states--not the judiciary of the 
United States. The Constitution was democratically adopted. It was 
meant to be democratically amended. It must remain democratically 
accountable--or lose its legitimacy as the foundation for a democratic 
republic.
  Let me finally address one more concern about the language of this 
amendment. It is short. It is concise. And it leaves it to Congress to 
address the details on what specific forms of conduct to prohibit. I 
trust Congress to do that.

[[Page 12637]]

Congress did it in 1989 with the Flag Protection Act codified at title 
18, section 700 of the United States Code.
  Concern has been expressed that the term ``desecration'' is too 
broad, too vague. I don't think so. I think it will clearly grant 
Congress the power it needs without any restriction on our great 
freedoms, particularly real speech.
  Mr. President, the flag of the United States is a unique, unifying 
symbol of our country and all it embodies. Brave men and women have 
fought and died for that flag and what it represents. Let us today act 
to protect the flag and adopt S.J. Res. 12.
  Mr. ENZI. Mr. President, I rise in strong support of S.J. Res. 12 
which proposes an amendment to our Constitution allowing Congress to 
prohibit the physical desecration of the flag of the United States. I 
am proud to be an original cosponsor of the resolution introduced by my 
colleague from Utah.
  Throughout the years of our Nation's existence, many brave men and 
women have fought and died to defend the freedom that our flag 
symbolizes. We must honor their memory by protecting our flag and 
preserving this symbol of our Nation and the unity of the 50 States. I 
have heard from veterans across my home State of Wyoming about their 
service and the importance of the flag in both their military and 
civilian lives. Our flag is a constant reminder of all those who have 
sacrificed so much so that we might be free.
  We are now engaged in a new and different kind of war. We have taken 
up arms to end the threat of terror. We have been joined by many 
different nations in that effort, but we are, once again, relying on 
our own Armed Forces, the greatest fighting force in the world. With 
the talents and abilities of our service members and our support and 
prayers, I have no doubt they will get the job done.
  When our deployed troops return home, they will deserve our support 
and encouragement as they return to their everyday lives. I believe 
they will also expect us to take action to ensure the symbol of our 
Nation that they carried with them into battle is afforded the 
protection it deserves. We must ensure our flag is respected and 
protected as a symbol of our freedoms and the sacrifices that were 
made.
  Over the last couple of days, some Members of this body have made 
some misleading statements about what this resolution does. Let's be 
clear--this piece of legislation does not ban anything. It does begin 
the process of restoring the authority of Congress to pass a flag 
desecration statute. A constitutional amendment will only become law if 
it is approved by three-quarters of the States.
  I have also heard some of my colleagues claim that the language we 
are debating is too vague. Again, this is simply the first step in a 
process. The details will be debated once Congress regains its 
authority to make laws related to the desecration of the flag. It is 
then the job of those in Congress to talk about and debate the 
definition of desecration and what that word will mean in our laws.
  Again, I believe our flag should be protected as a symbol of this 
Nation and our history. It represents us in military actions, in 
athletic competitions, diplomacy, and any activity we engage in around 
the world. The flag helped rally the Nation after the attacks of 
September 11, 2001. It calls to mind those who serve on our police, 
fire, and emergency response teams, risking their lives every day to 
ensure we are safe and protected from harm.
  Diana and I have a friend from Finland who taught in the United 
States for a year. She had a flag of Finland that she traveled with 
while we were debating a flag burning amendment. She couldn't believe 
that anyone would dishonor their country's flag by burning it. As a 
symbol of the country, she couldn't believe that anyone would desecrate 
it in any way. She couldn't imagine that burning or desecrating the 
flag of a person's own country could have any positive effect. She 
believed that what people were doing to the symbol of our Nation would 
have a very detrimental effect overseas.
  Changing the law may not change people, but the discussion alone that 
we are having should point out what is right and wrong and how other 
countries view the disrespect we demonstrate for our country. People 
are missing the issue of the protests. They are only seeing the 
disrespect for the country. We can do better. We must do better. This 
amendment will help us do better on focusing on problems instead of 
drama that takes away from ways we can make our lives and our country 
better.
  Our flag symbolizes our hope for the future and our willingness to 
work together to make this world a better place for us all to live. 
That hope for tomorrow unites us, guides us, and helps to make us truly 
one Nation under God, with liberty and justice for all.
  I encourage all Senators to support S.J. Res. 12.
  Mr. VITTER. Mr. President, the America flag is such an important 
symbol to our country that from the time we are children, we salute the 
flag with a hand over our hearts and pledge our allegiance to the flag 
of the United States of America. For the past two centuries, in battles 
all around the globe, the American flag has served as an inspiration 
and rallying point for our Armed Forces fighting for the ideals it 
embodies. We hold the flag with such reverence that it covers the 
coffin of America's military heroes who have dedicated their lives to 
the service of our Nation. Old Glory should be revered and protected 
because it represents American History, American sacrifice, and hope 
for our Nation's future.
  On the Fourth of July, especially, we are reminded of the sacrifices 
of our forefathers in founding this great Nation, and the American flag 
symbolizes that sacrifice. The act of burning or destroying the flag 
shows a tremendous disrespect for our forefathers and the countless men 
and women who have given their lives to make the United States what it 
is today. That's why I am an original cosponsor of the flag protection 
amendment, and I rise to speak in support of it today.
  By supporting this amendment, I believe that I am supporting the will 
of the people of Louisiana and the American people. I have received so 
many phone calls, letters, and e-mails from people in my home State of 
Louisiana in support of a constitutional amendment to prevent the 
desecration of our American flag. Polls show an overwhelming majority 
of Americans believe that burning the U.S. flag should be a crime. 
According to Fox News poll when asked, ``Do you think burning the 
American flag should be legal or illegal?'', 73 percent respondents 
said they thought it should be illegal.
  Before the Supreme Court issued its decision in Texas v. Johnson, 
declaring that flag burning is politically expressive conduct protected 
by the first amendment, 48 States, including Louisiana, and the 
District of Columbia, had enacted statutes prohibiting the physical 
desecration of the American flag. In my opinion, the Johnson decision 
is just one more example of unelected activist judges ignoring the will 
of the American people. In response to the Court's decision in Johnson, 
Congress enacted the Flag Protection Act. However, in U.S. v. Eichman 
the Court struck down the Flag Protection Act, holding that 
Government's interest in protecting this symbol did not outweigh the 
individual's right to politically expressive conduct.
  Since the Supreme Court issued these 2 decisions, all 50 States have 
passed resolutions asking Congress to pass a constitutional amendment 
that would provide some protection to the American flag. This is 
overwhelming evidence that the American people disagree with these 
activist decision and believe that the flag--the symbol of Our nation--
should be protected. I believe that we as Senators owe it to our 
constituents--as their elected representatives--to support this 
amendment and give Congress the power to enact a law banning the 
physical desecration of the U.S. Flag.
  The Flag Protection Amendment gives Congress the power to enact laws 
prohibiting the ``physical desecration'' of the flag. This amendment 
does not ban flag burning--it doesn't ban anything. It merely gives 
Congress the

[[Page 12638]]

power to enact legislation if and only if three-fourth of the States 
ratify the amendment within 7 years. Therefore, this amendment would 
place the power back into the hands of the American people, which, in 
my mind, is much better than leaving it in the hands of activist 
judges.
  Opponents of this amendment state that any laws prohibiting physical 
desecration of the flag, no matter how narrowly tailored, violate an 
individual's first Amendment right to free speech. However, while the 
first amendment grants Americans the precious right to free speech, 
that right is not without limitations. For example, the Supreme Court 
has held that certain types of hate speech and obscenity are not 
covered under the first amendment. Additionally, public school teachers 
may not espouse their personal religious views in the classroom, and 
attorneys and doctors cannot breach the confidence of their clients.
  The first amendment protects a number of avenues for individuals to 
voice their dissent, but it should not protect the physical desecration 
of the symbol that embodies the spirit of our Nation.
  It is time for the Senate to pass the flag protection amendment--an 
amendment that has overwhelming bipartisan support and 59 cosponsors. 
The House passed this amendment last year by two-third majority. Now it 
is time for the Senate to pass this amendment so that we can send it to 
States and give the American people a chance to vote on this very 
important legislation. Mr. President, I believe that protecting the 
symbol of our Nation is one of our duties as elected representatives of 
the American people, and it is too important to leave in the hands of 
activist judges.
  Mr. JOHNSON. Mr. President, today I share with my colleagues my 
thoughts on S.J. Res. 12 to amend the Constitution of the United States 
to prohibit the physical desecration of the flag of the United States. 
There are good, thoughtful, and patriotic Americans on both sides of 
this contentious issue. I have great respect for the views of many that 
amendment would constitute an unnecessary and harmful interference with 
the first amendment guarantees of free speech. Nonetheless, I am a 
supporter of S.J Res. 12. For most of America's history, flag 
desecration has been illegal under State law and local ordinances. This 
constitutional amendment allows the return of the law to its former 
state, and I support this amendment to ensure those protections.
  Mr. McCONNELL. Mr. President, whether flying on an aircraft carrier, 
hanging in one of our Embassies, or worn as a patch on a soldier's 
uniform, the American flag stands for freedom.
  The vast majority of Americans honor the flag, and rightly so. Some 
would go so far as to amend the Constitution to protect the flag 
against those who would burn it. While I share and admire their 
patriotism, weakening the first amendment, even for the noble purpose 
of protecting the flag, is not a position I can support.
  Make no mistake I treasure the Stars and Stripes as much as any 
American. One of my most prized possessions is the flag which honored 
my father's military service in World War II. It was draped upon his 
coffin after his death from cancer in 1990. He fought in the European 
theater to protect the freedoms that flag represents, and it now rests 
proudly on the mantle in my Senate office.
  I do not have any sympathy for any who would dare desecrate the flag. 
They demean the service of millions of Americans, including my father 
and the brave men and women currently fighting the war on terror. They 
deserve rebuke and condemnation.
  There may be no greater symbol of freedom than the flag. Its powerful 
symbolism is precisely why miscreants choose to desecrate it to make 
their point. They intend to convey a powerful message, and they have 
succeeded, because we find their message so disgusting that proponents 
of S.J. Res. 12 seek to ban their message. But freedom of speech means 
nothing unless people are allowed to express views that are offensive 
and repugnant to others.
  Over 60 years ago, Justice Jackson noted how much the flag means to 
all Americans, and at the same time argued that the principles of 
liberty require us to allow others to view the flag differently than we 
see it ourselves. He wrote that:

       The case is made difficult not because the principles of 
     its decision are obscure but because the flag involved is our 
     own. . . . But freedom to differ is not limited to things 
     that do not matter much. That would be a mere shadow of 
     freedom.

  Since our founding, we have watched other nations silence dissent, 
while America welcomed it--and America has prevailed. In fact, the 
Senate has seen free and open debate this week about the flag 
resolution. Those who support the resolution have made their best 
arguments to try to convince those who disagree. Regardless of the 
outcome of the vote on this measure, this week's debate is good for 
democracy and good for America.
  Free and open debate is also the correct approach to use in dealing 
with those who desecrate the flag. The Supreme Court has recognized 
that ``[t]he way to preserve the flag's special role is not to punish 
those who feel differently about these matters. It is to persuade them 
that they are wrong.''
  Flag burning is an abominable act. We are lucky to live in a country 
where the overwhelming majority of people not only reject it, but honor 
the American flag and the freedoms it stands for. These freedoms are 
America's source of strength, whether embodied in the first amendment's 
protection of speech, or the second amendment's protection of the right 
to bear arms, or the fifth amendment's protection of private property, 
or in any other provision of our enduring Constitution.
  Ultimately, people who use the flag to convey a message of protest 
pose little harm to our country. But weakening our first amendment 
freedoms might.
  Our Founding Fathers wrote the first amendment because they believed 
that, even with all the excesses and offenses that freedom of speech 
would undoubtedly allow, truth and reason would triumph in the end. And 
they believed the answer to offensive speech was not to regulate it, 
but to counter it with more speech, and in so doing, let the truth 
prevail in the marketplace of ideas.
  The PRESIDING OFFICER (Mr. Martinez). The Senator's time has expired.
  The majority leader is recognized.
  Mr. FRIST. Mr. President, I ask unanimous consent that the committee 
amendment be agreed to and that the following amendment be the only 
amendment in order to the pending joint resolution, S.J. Res. 12: 
Durbin first-degree amendment relating to statutory language. I further 
ask consent that all debate be equally divided between the two leaders 
or their designees until 5:30; and further, at that time the Senate 
proceed to a vote in relation to the Durbin amendment; further that the 
resolution then be read a third time and the Senate proceed to a vote 
on passage of S.J. Res. 12, as amended, with no further intervening 
action or debate; provided further that if all 100 Senators fail to 
vote on final passage, then the vote be reconsidered and the Senate 
vote again on final passage on Thursday, June 29, at a time determined 
by the two leaders.
  The PRESIDING OFFICER. Is there objection?
  Mr. REID. Mr. President, reserving the right to object, I would 
further ask that the consent agreement contain the understanding that 
the Durbin first-degree amendment relating to statutory language be the 
only amendment that would be in order.
  Mr. FRIST. Without objection.
  The PRESIDING OFFICER. That is part of the agreement.
  Mr. DURBIN. Mr. President, reserving the right to object.
  The PRESIDING OFFICER. The Senator from Illinois.
  Mr. DURBIN. So it is clear, I will have an up-or-down vote on my 
amendment.
  Mr. REID. At 5:30.
  Mr. DURBIN. But it will be an up-or-down vote directly on the 
amendment; is that understood?
  The PRESIDING OFFICER. The Senator from Kentucky.
  Mr. BUNNING. Mr. President, I would like to just clarify the 
unanimous consent request so that Members

[[Page 12639]]

who are on the floor are not excluded from the debate that is going on.
  Mr. REID. Senator Frist and I will allocate the time that is left.
  Mr. BUNNING. But there is time allocated presently.
  Mr. FRIST. That is correct, Mr. President. Through the Chair, time 
has been allocated. The remainder of the time will be allocated between 
the two of us, and there is nothing in the unanimous consent request 
that will interfere with that.
  Mr. BUNNING. Thank you.
  The PRESIDING OFFICER. Is there objection?
  The Senator from Colorado.
  Mr. ALLARD. Mr. President, I think Senator Kerry had asked for some 
additional time, and it is cutting our time on this side. I want to 
make sure we restore that time we would have lost.
  Mr. REID. Mr. President, I think that is very appropriate. I believe 
the extra time Senator Kerry took from the Republicans should be 
restored. It would be about 5 minutes, I think.
  The PRESIDING OFFICER. Is there objection?
  Without objection, it is so ordered.
  The committee amendment was agreed to.
  Mr. FRIST. Mr. President, just briefly, on our side, because I can 
tell there is some confusion as to the order, I have Senator Bunning 
for 10 minutes, Senator Allard for 7 minutes, Senator Warner for 7 
minutes, and Senator Thune for 5 minutes.
  The PRESIDING OFFICER. The Senator from Kentucky is recognized.
  Mr. BUNNING. Mr. President, I rise in support of S.J. Res. 12, the 
flag protection constitutional amendment. It is fitting for the Senate 
to address this issue on the eve of the Nation's most celebrated 
national holiday, the Fourth of July.
  For over 200 years, from the time of the Revolutionary War to this 
very moment, the American flag has served as the most unifying and 
visible sign of our great Nation. It is a symbol that knows no 
particular political affiliation or ideology. It is a symbol that has 
many different meanings for many different people. And, most 
importantly, it is a symbol of our Nation's greatest freedom that so 
many men and women in our Armed Forces have and continue to sacrifice 
to protect.
  I believe it is an insult to those sacrifices to stand idly by while 
the flag is desecrated. It is time to show the same honor to our flag 
that we do to those who have sacrificed to protect it. I believe we owe 
it to our Old Glory, and that is why I am here today to speak in 
support of the constitutional amendment to protect our flag.
  This amendment is necessary to restore protections for the flag that 
the Supreme Court wiped away in 1989, ruling in Texas v. Johnson. In 
that 5-to-4 ruling, the Court set aside longstanding national and State 
laws that protected our flag and recognized and honored its place in 
American society.
  Congress quickly acted in response to that ruling through the passage 
of the Flag Protection Act of 1989. The Supreme Court, however, was 
also quick to act. In another 5-to-4 decision, in 1990, the Court again 
found that flag protections were inconsistent with their view of the 
rights protected by the first amendment.
  But the Court is once again out of touch with America. Its view that 
flag burning should be protected is not shared by many Americans. In 
fact, the vast majority of Americans think just the opposite. 
Nationwide, over 70 percent of Americans think it is important for us 
to pass a law to protect the flag. And in my State, that number is even 
higher--87 percent think that it is important that we act now to 
protect the flag.
  It is time that we turn this issue back to the people. The 
Constitution provides an amending process for a reason. The bar to 
enact a constitutional amendment is high, requiring a two-thirds vote 
of both the House of Representatives and the Senate. Likewise, the 
amendment must be ratified by three-fourths of the States. But in the 
rare instance when those super-majorities can be assembled, the Framers 
gave us away to change the Constitution and for the people's voice to 
be heard. That is just what we should and must do.
  Since the Supreme Court's rulings, the House of Representatives 
passed a flag protection amendment five times--most recently last year. 
The Senate has also taken up the issue, but unfortunately failed to get 
the necessary 67 votes. By all accounts, this time the Senate is within 
one vote of adopting the amendment and sending it to the States for 
ratification.
  I have no doubt that should the Senate pass this resolution it would 
be ratified by the States. While this issue is currently being debated 
at the national level, States have been quick to show their 
overwhelming support for such a resolution. Since 1989, all 50 States 
have enacted resolutions asking Congress to pass a flag protection 
amendment.
  Mr. President, we owe it to Old Glory to protect each and everyone of 
it stars and stripes.
  Two weeks ago, I had the honor of introducing a man who fought to 
rescue Old Glory from would-be flag-burners. Rick Monday, a former 
center fielder for the Chicago Cubs and a Marine Corps Reservist, 
rescued the American flag from being burnt by two protestors during a 
1976 baseball game between the Cubs and the Dodgers.
  Monday was playing center field for the Cubs that day, when suddenly 
in the 4th inning two protesters ran onto the outfield grass carrying 
the American flag. These two individuals then proceeded to spread the 
flag on the ground, dousing it with lighter fluid and pulling out 
matches to light it on fire. But before they could act, Monday dashed 
from his position swiping the flag right out from under their noses to 
the sound of thunderous cheers from the crowd.
  Following Monday's patriotic actions those in attendance that day 
burst into a chorus of God Bless America. Whether you are a player or a 
fan, we all have our favorite memories from America's past time, but 
few of those moments compare to Monday's act of patriotism. It is 
arguably one of the greatest moments the game has ever seen. In fact, 
the Baseball Hall of Fame recognized it as one of the 100 Classic 
Moments in the history of baseball. Monday, a true American Patriot, 
fought to stop what he knew was wrong in 1976 and is still wrong today.
  Some may argue that burning the flag is a form of speech. I do not 
agree with those people. In the 1989 flag burning case Texas v. 
Johnson, late Chief Justice William Rehnquist said it well in his 
dissent when he said that flag burning is more like a grunt or roar 
designed to antagonize others than it is a form of speech.
  Well, Mr. President, it is time that this body acted to protect Old 
Glory from those who wish to indulge in its desecration. We owe it to 
our past, present and future generations. And ultimately, we owe it to 
the brave men and women who sacrifice so much to protect us at home and 
abroad.
  Each and everyone of us should recognize what a privilege it is to 
live under the Stars and Stripes. And like Monday, we should do 
everything we can to protect and honor our flag. After all, what it 
represents is the very reason our troops are putting their lives on the 
line right now in the war on terror. When you disrespect the flag you 
are disrespecting our men and women in uniform.
  Mr. President, on the eve our Nation's most important national 
holiday, the Fourth of July, I urge my colleagues to protect our 
Nation's great flag.
  I believe it is our duty as public servants to protect one of our 
Nation's greatest symbols of freedom--Old Glory.
  Mr. President, I yield the floor.
  The PRESIDING OFFICER. The Senator from Colorado is recognized.
  Mr. ALLARD. Mr. President, I rise today, June 27, 2006, between Flag 
Day and Independence Day, to speak on behalf of the American flag.
  The American flag is a symbol, a physical embodiment of the freedom 
and liberty that we as Americans are blessed to claim. More than a mere 
banner of red, white, and blue, our flag characterizes the fundamental 
essence

[[Page 12640]]

 of what it means to be an American: liberty, justice and equality.
  Whether flown at a high school football game, in an Olympic arena, or 
over this very building that we stand in today, the American flag is an 
image that commands worldwide respect, while at the time symbolizing 
the triumph of representative Government over the inequities of 
tyrannical rule.
  To allow for the physical desecration of such a symbol of opportunity 
and liberty is not quite tantamount to condoning an assault on the very 
foundation of our individual freedoms, but so close as to have damaging 
effects. Strength in symbolism can oftentimes rely upon the extent to 
which an image is protected by the society it represents, which is why 
this is not an issue pertaining to freedom of expression, but rather an 
issue of patriotic reverence and national identity.
  The American flag has done more than wave as a symbol of freedom; it 
has served as an inspiration, a guiding light to our men and women in 
uniform throughout our Nation's history.
  On New Year's Eve, 1776, just 7 months before the signing of our 
Declaration of Independence, George Washington and the Continental Army 
were laying siege to the British-occupied Boston. In the midst of 
battle, Washington recognized the need to present a unifying symbol to 
his own troops, as well as the need to commemorate the birth of our 
truly unique sense of American pride. Inspired with the fortitude of 
his continental troops, Washington ordered the hoisting of the Grand 
Union flag. This was one of the first instances where our flag became 
more than a symbol of independence, but the physical representation of 
an ideal stemming from the innate human desire for freedom.
  On June 14, 1777, almost a year-and-a-half after George Washington 
raised the Grand Union flag over Prospect Hill, the Continental 
Congress passed an act that officially gave America a flag. Though the 
intricacies of the design have changed several times in our nation's 
history, the principles that it represents have never faded.
  Patrick Henry aptly summed up this uniquely American commitment to 
personal liberty by stating, ``I know not what course others may take 
but as for me; give me liberty or give me death.'' President Calvin 
Coolidge once commented, ``We do honor to the stars and stripes as the 
emblem of our country and the symbol of all that our patriotism 
means.'' Henry and Coolidge spoke of a liberty that was fought for, and 
won by the sacrifice of thousands of our American sons and daughters. 
As it stands today, the American flag is a monument to their heroic 
effort, and a testament to the price those serving our country are 
willing to pay for our freedom.
  With the 230th birthday of our Nation fast approaching, we will 
undoubtedly see even more American flags on display in front yards, on 
top of skyscrapers, and in the hands of people celebrating the birth of 
our Nation. While many of these patriotic displays will coincide with 
the festivities of this national holiday weekend, the unifying message 
behind every one of these flags is that we as Americans understand the 
power behind our national symbol.
  It is time that we, as the Nation's legislature, restored the ability 
of the America people to protect the flag as the symbol of our country. 
This ability has been eroded over the years by judicial decisions that 
have stripped away the people's right to protect the American flag and 
all that it stands to represent.
  This sentiment has garnered wide support across the Nation, as is 
evidenced by all 50 states passing resolutions calling upon Congress to 
enact some constitutional protections for the flag. In each of the past 
five Congresses, the House has passed a constitutional amendment 
designed to protect the flag from all forms of desecration, with the 
latest measure passing almost a year ago by a vote of 286 to 130. Here 
in the Senate, we came up only 4 votes short of the required two-thirds 
majority in 2000.
  Today, we stand closer than ever to passing this vital constitutional 
provision. Some of my colleagues have expressed concerns regarding the 
potential first amendment ramifications of passing this initiative. 
First of all, this amendment does not ban anything. It simply restores 
the authority of Congress, the representatives of the American people, 
to pass a flag desecration statute if it chooses.
  Second, even if such a statute were subsequently passed, it would not 
place a restriction on the content of the speech, only on the means by 
which the speaker wishes to communicate. Someone seeking to burn the 
flag would still retain their right to express any political viewpoint 
they wish to advance. They would, however, not have the ability to 
desecrate the flag as a substitute for other forms of expressive 
conduct.
  This is why the resolution was reported out of the Judiciary 
Committee with broad support originating from both sides of the aisle. 
This bipartisan support is evidence that this issue transcends all 
political ideology; and to me, this unity could not have come at a more 
critical moment in history.
  Internationally, our enemies have consistently used the desecration 
and burning of our flag to symbolize plight of international democracy 
at the hands of Islamist tyranny. Domestically, Americans are daily 
assaulted with media images of home-grown extremists groups burning the 
American flag in an attempt to speak out against the actions of their 
Government. The irony, however, is not lost on the American people when 
they see these political ideologues desecrate the very symbol that 
gives them the right to speak in the first place.
  This tendency to overshadow our flag's positive symbolism with 
negative contextual imagery is the reason why the majority of Americans 
support this amendment. We understand the power of this national 
symbol, believe in the principles that our flag represents, and we know 
that past generations have fought and died to ensure that those 
principles resonate well into the future.
  I ask the Senate to stand in unity with the American people and the 
50 states and ask them to not let this opportunity pass us by without 
acting to protect this still vibrant national symbol.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Virginia.
  Mr. WARNER. Mr. President, I believe at this time I am scheduled. 
Does the Senator from Pennsylvania have control of the time?
  Mr. SPECTER. Yes.
  Mr. WARNER. I will take a few minutes.
  Mr. President, I was completing my luncheon and walking through the 
hallway back to my office when a reporter in a very respectful way 
spoke with me and asked how I intended to vote on this amendment.
  I said I intended to vote as I have done three previous times; 
basically to support it, the other options.
  He said: What is the driving force? Is it your highest priority? And 
he asked a series of questions in a very polite way which really said: 
Stop and think what it is I am about to do and why I am about to do it.
  I gave him a reply which follows along these lines: I listened to the 
distinguished Senator from Pennsylvania yesterday referring with a deep 
sense of emotional pride about how his family had proudly worn the 
uniform of our country, and most particularly his father who was in the 
great Army that went over in 1917-1918 to save Europe, in World War I, 
and how he was severely wounded in the Battle of the Argonne.
  I checked my own father's record. I, of course, have it proudly on 
the wall in my Senate office. He served in World War I. He was engaged 
in several major battles. He was a doctor in the trenches and cared for 
the wounded. He was in the Battle of the Argonne. How do we know 
perhaps my father rendered medical assistance to Senator Specter's 
father. But those things are instilled in sons and daughters by their 
parents.
  When it came time for me to proudly raise my right arm and volunteer 
in World War II, I did so because of my father and how proud he was, as 
was my mother, who, incidentally, was with

[[Page 12641]]

the American Red Cross in World War I tending to the wounded in the 
hospitals in the United States.
  In my father's library in which I grew up as a small boy, there were 
remnants and artifacts that he brought back from France from the 1917-
1918 experiences. I remember a small American flag, his helmet, his old 
belt, and several other artifacts, and how he and my brother and I 
treasured them as young persons.
  My military service is of no great consequence. I did have the 
opportunity for a short period in the final year of the war to go 
through the training command, but I remember very well I was then just 
in the training part of it--I think, out of boot camp or perhaps in 
boot camp--seeing that flag raised on Iwo Jima. We didn't know at that 
time in February-March of 1945 how long that war was going to last. We 
had no idea. We just experienced the Battle of the Bulge in which the 
final thrust of the German forces trapped so many of our soldiers with 
unexpected casualties in the 40,000s in that battle and now Iwo Jima, 
some 17,000 I think killed, wounded, and missing in that battle for 
about 5 weeks.
  I remember the picture of that flag going up. Now we see it on the 
monuments out here which the Marines revere so deeply.
  That was one of the reasons I later joined the Marine Corps and 
served for another period on active duty, this time in Korea as a young 
officer with the Marines. There was no particular valorous service, 
just like many others. You raised your arm and did what you were told 
to do and thanked God you got home in one piece. That is what we were 
all glad to do.
  So I am very humble about what little active service I had. But I 
have had the privilege of being associated with the men and women of 
the Armed Forces for over a half century, now in this Chamber serving 
with others, again, 28 years on the Senate Armed Services Committee 
doing everything we can for the men and women of the Armed Forces.
  So I told this reporter that I felt I had a duty to those who had 
worn the uniform of our country so proudly in these many years that I 
was privileged to be associated and learn from them and profit from 
them and my experience in the military.
  It has been a great, wonderful opportunity for me to have this 
service in the Senate and have as a part of it the responsibilities. So 
I thought I would recount some statistics.
  In World War I, the conflict in which our fathers served, I say to 
Senator Specter, 116,000 killed, 204,000 wounded; World War II, 405,000 
killed, 671,000 wounded; Korea, 54,000 killed, 103,000 wounded; 
Vietnam, 58,000 killed, 153,000 wounded; Desert Storm, that is the 
first engagement with Saddam Hussein's forces, 382 killed, 467 wounded; 
Afghanistan, 291 killed, 750 wounded; the second battle with Saddam 
Hussein, Iraqi Freedom, 2,521 killed, over 18,000 wounded.
  Most, if not all, of those brave men, and I expect some women--I 
fully anticipate women were included--came back to their beloved 
country from those foreign lands and at some point before they were 
finally put into Mother Earth an American flag was put on that casket. 
There is not a one of us in this Chamber who has not had the privilege 
to go to those services. There is not a one of us whose throat hasn't 
swelled or whose eyes haven't welled up when that takes place.
  So, Mr. President, that flag symbolizes the everlasting--I repeat 
everlasting--gratitude of the citizens of this great Nation for that 
giving of a life in the cause of freedom. I could do no less than 
proudly stand here and vote ``aye'' for this amendment, as I shall do.
  Mr. President, I yield the floor.
  The PRESIDING OFFICER. The Senator from South Dakota.
  Mr. THUNE. Mr. President, I rise today as well to voice my strong 
support for a constitutional amendment that would allow Congress to 
prohibit the desecration of the American flag.
  Some of the opponents have spoken today about how important it is 
that we not use this opportunity to amend the Constitution. The Senator 
from Illinois referred to the constitutional language, the 
constitutional sacred language, and question how we could alter what 
Thomas Jefferson and our Founding Fathers wrote.
  I simply point out that in the last 20 years, our colleagues on the 
other side have on over 100 occasions introduced constitutional 
amendments. In fact, there was one by the Senator from Illinois a few 
years back that would abolish the electoral college.
  So the question isn't whether we amend the Constitution for this 
purpose. It seems to me at least the question that has been raised 
about the Constitution comes down to one's preference for which 
amendments are in order and which are not.
  I have to say that I think an amendment to protect the American flag 
is in order, not just because it shares a majority and a strong 
bipartisan support in the Senate but because many of the people who 
were just alluded to by the Senator from Virginia who have fought and 
died on behalf of that flag want to see this flag honored.
  Look at the veterans organizations in this country--the American 
Legion, the Veterans of Foreign Wars. Veterans organizations are very 
much in favor of this amendment. In fact, it has been one of their top 
priorities. The American Legion for some time now has been trying to 
get an amendment to the Constitution that would allow Congress to enact 
laws that would protect the American flag.
  As a member of the Veterans Affairs Committee, I heard from many 
veterans on this issue who understandably feel strongly about this flag 
and rightly view desecration of the flag as an afront.
  Many of our veterans have stood in harm's way around the world to 
protect everything our flag represents. That is why it is a unifying 
symbol that deserves to be protected from desecration.
  The proposed amendment is simple. It says:

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

  It does not amend the first amendment. It simply authorizes Congress 
to pass a law to protect the flag from desecration.
  This amendment, as I said earlier, has overwhelming bipartisan 
support. Members on both sides of the aisle feel strongly that this 
flag should be protected.
  Our flag is intertwined with some of the most memorable scene's from 
our Nation's history. It was raised at Mt. Suribachi during the battle 
for Iwo Jima, and draped over the side of the stricken Pentagon on 
September 11. It is what Olympic gold medalists are honored with. It 
brings comfort to the wife of a fallen soldier. Young schoolchildren 
pledge their allegiance to our flag. Above all, it symbolizes the 
freedoms we hold dear, and I believe it should be protected from 
falling victim when those freedoms are exploited.
  Since the birth of our Nation, American soldiers have fought for the 
ideals our flag represents and look to it for direction and promise on 
bloody battlefields. The effort we are making here is not something of 
small consequence. It is an opportunity to debate an issue of critical 
importance to the American people and to allow the voice of the people 
to be heard on this critical issue.
  I am not a lawyer and most Americans are not lawyers, yet the vast 
majority of Americans know instinctively that the American flag is 
something that needs to be protected from desecration. However, right 
now five unelected lawyers on the Court have decided that desecration 
of the flag deserves the protection of the first amendment. Five 
unelected Justices on the Supreme Court decided that Federal and State 
laws prohibiting flag desecration were unconstitutional. Many of these 
statutes had stood for generations before these Justices determined 
that these statutes were unconstitutional.
  In fact, four Justices on the Supreme Court completely disagreed with 
the majority opinion in the flag-burning cases. In fact, Justice 
Stevens, perhaps

[[Page 12642]]

one of the most liberal Justices on the Court, wrote a dissenting 
opinion saying that desecrating the flag is offensive conduct, not 
speech that deserves protection.
  Our Constitution does not belong to the courts. It belongs to the 
people. And when the courts get it wrong, it is appropriate the people 
have an opportunity to correct it. In this case, I believe the opinion 
of the four Justices ought to be the majority opinion, as do the vast 
majority of the American people. If two-thirds of the Senate, two-
thirds of the House of Representatives, and three-fourths of the State 
legislatures also believe it should be the majority opinion, then that 
is a constitutional basis for making it a majority opinion.
  The notion that flag desecration is a nonexistent problem is also not 
factual. As Senator Hatch has noted earlier, there have been several 
incidents of flag desecration just in the last year, and these are the 
occasions that were published in the media. They are the ones that we 
know about.
  The House of Representatives has passed this amendment with the 
required two-thirds majority in each of the past five Congresses, but 
it has always been bottled up here in the Senate. The Senate last voted 
on this amendment in the year 2000 when it drew 63 votes. That is a lot 
of votes, but it is still 4 votes short of the 67 that are needed to 
pass. This time around, it appears that we are very close to passing 
this amendment.
  Mr. President, I hope my colleagues who are listening to this debate 
will ultimately come down in favor of supporting what is a very simple, 
straightforward approach which simply says that Congress shall have the 
power to prohibit the physical desecration of the flag of the United 
States. It puts the power in the hands of the Congress--the elected 
representatives of the people of this country--and the people who 
ultimately will have the opportunity in the 38 States if this thing is 
approved here today, with the 67 votes that are necessary to vote on 
its passage.
  So I stand proudly today in support of those veteran organizations 
who have spoken loudly on this issue--those who have sacrificed and who 
believe that the American flag is not just ink and cloth, but is a 
symbol of our freedom, a symbol of our democracy, and it is something 
that the majority of Americans and those who have served this country 
and fought to protect it deserve to have protected.
  Mr. President, I yield the remainder of my time.
  Mr. DURBIN. Mr. President, how much time is remaining?
  The PRESIDING OFFICER. The Democrats have 35 minutes remaining.
  Mr. DURBIN. And the other side?
  The PRESIDING OFFICER. The other side has 9 minutes.
  Mr. DURBIN. I yield 15 minutes to the Senator from West Virginia.
  Mr. BYRD. Mr. President, I thank my distinguished friend from 
Illinois.
  We are here today, once again, to debate the wisdom of amending the 
United States Constitution, to outlaw the desecration of the American 
flag. As I have stated repeatedly and sincerely over the years, there 
are few acts more deeply offensive to any of us than the willful 
destruction of that American flag which stands there beside the 
President's desk.
  The flag is a symbol of our Republic. It is a unique symbol of 
national unity and a powerful source of America's pride. I love the 
flag. We all love the flag and all that it represents. We revere the 
flag because it is a symbol of the liberties that we enjoy as American 
citizens. These are liberties that are protected by the Constitution of 
the United States and the Bill of Rights. The Constitution is the 
instrument that provides for what that flag represents.
  Now, let me say that again. This Constitution that I hold in my hand 
is the instrument--there it is--that provides for what that flag 
represents. It is the Constitution that has been and continues to be 
the source--the source--of our freedom. We celebrate our freedom every 
time we pledge allegiance to the flag, every day that this Chamber 
comes to order and conducts a session. So we pledge allegiance to that 
flag and to the Republic--not to the democracy but to the Republic--for 
which it stands; one Nation, one Nation under God--yes, under God--
indivisible, with liberty and justice for all. Think of that. Listen to 
that. One Nation under God, indivisible, with liberty and justice for 
all.
  Seven years ago, in contemplation of a similar moment when the Senate 
was confronted with a constitutional amendment banning flag 
desecration, I spent long hours contemplating both the legal bases and 
the need for such an amendment. I said at that time, and I say again 
today, that I know of few subjects that have come before the Senate 
which have caused me greater anguish and consternation. I knew 7 years 
ago, and I know today, that many West Virginians, many of my 
colleagues, many of the people I represent support this amendment. But 
based on my continued examination of the matter, I believe that I must 
remain--and I shall remain--opposed to that amendment.
  I oppose it not because I do not love the flag because I do love the 
flag. I oppose it not because I fail to respect the sacrifices made by 
our veterans, our law enforcement officials, and our first responders 
who, for the benefit of all Americans, have given their lives and who 
have offered their lives in defense of our country and our flag because 
I do. Instead, I oppose it because while I agree that desecration of 
the flag is abhorrent, repugnant, I believe that amending the 
Constitution to prohibit flag desecration flies in the face--the very 
face--of first amendment rights like freedom of speech. Men and women 
have died to protect that freedom of speech, that freedom to express 
ourselves.
  Flag desecration remains a rare and isolated event in this large 
country of ours. The vast majority, the overwhelming majority of 
Americans respect the flag and they fly it with pride. They do not 
abuse it.
  The Senate Judiciary Committee has not held one hearing on this 
proposal. Let me say that again. The Senate Judiciary Committee has not 
held one hearing on this proposal. It is especially troubling to me 
that the Senate would seek to amend the Constitution--yes, this 
Constitution that I hold in my hand--and the first amendment--without 
holding even a single hearing on the need for this amendment.
  Now, I know that some who favor this amendment believe that the 
burning of the flag is sufficient to justify the adoption of this 
extraordinary--I say extraordinary--legislative remedy. And I, too, 
cringe, I shrink from, and I condemn any desecration of the flag. But I 
do not agree that it is necessary to amend the basic document, the 
basic organic document, the Constitution, to prohibit it.
  Furthermore, this constitutional amendment provides no actual 
punishment of those who desecrate the flag. Plus, if protection of the 
flag is a pressing concern--and I acknowledge that to many people it 
is--why do the backers of the constitutional amendment not support 
pending legislation, of which I am a cosponsor, which could be enacted 
to prohibit desecration of the flag more quickly? As we all know, a 
constitutional amendment requires ratification by three-fourths--three-
fourths--of all 50 States, which could take up to 7 years, and it is 
likely that additional legislation to enforce the enactment would have 
to be enacted after that.
  I also would not support this constitutional amendment because it 
continues to be my heartfelt belief--and I wish I were mistaken--that 
the primary effect of the amendment will be to create more, rather than 
fewer, incidents of flag desecration, flag destruction. Zealous 
defenders of the first amendment who are offended, rightly or wrongly, 
by the passage of this amendment will surely cast themselves in a new 
role; namely, as provocateurs who, newly inspired, will deliberately 
seek to test the boundaries established by this proposed amendment if 
it is adopted.
  This is more than a matter of symbolism; this is a question of 
respect, respect for the founding document of the Republic--oh, how 
precious it is, this

[[Page 12643]]

founding document, the Constitution of the United States, the supreme 
law--the supreme law of the land. Any disrespect for the Constitution 
is a repudiation of the basic principles and laws of our country. I do 
not relish giving a tiny minority of troublemakers the ammunition to 
denigrate--yes, denigrate not only the flag but also the Constitution 
of the United States.
  As I have stated repeatedly, this does not mean that I believe 
destruction of the flag is trivial or that encouraging reverence for 
the flag is not an important goal of our government. I simply do not 
believe that sporadic instances of flag burning should result in our 
advocating the course of amending the Constitution, amending the basic 
organic document on which this Republic was built and on which it 
stands, as a remedy. As I have recounted in prior speeches on this 
subject, the Constitutional Convention in 1787 debated in much depth 
whether there should be any--whether there should be any--provision for 
amending the Constitution. Recognizing, however, that occasional 
revisions might be necessary--and thank God they recognized that 
occasional revisions might be necessary--the Convention finally agreed 
upon a compromise that deliberately made it difficult to amend the 
Constitution by requiring successive supermajorities. To that end, 
article V of the Constitution sets up a cumbersome troublesome, two-
step process to amend the Constitution.
  The first step is approval either by two-thirds of Congress, or--and 
this has never been done--by a convention called for by two-thirds of 
the States. The second step is ratification by three-fourths of the 
States.
  So given the hurdles that were deliberately and knowingly and 
intentionally established by article V, it is no surprise that so few 
amendments to the Constitution have been approved. There are 27 
amendments in all that have been approved, and the first 10 of the 27 
were ratified en bloc in 1791. Those 10 constitute our Bill of Rights.
  Think of it: In the 216 years that have subsequently ensued, there 
have been just 17 additional amendments. If we disregard the 18th and 
the 21st amendments, marking the beginning and end of Prohibition, then 
we are left with only 15 amendments in 216 years. Get that. Only 15 
amendments in 216 years. As I have advised my colleagues before, and as 
they well know, these 15 amendments can generally be divided into two 
roughly equal categories. One category consists of those amendments 
that deal with the structure--the structure and the organization of the 
three branches of Government--the legislative, the executive, and the 
judiciary.
  These include the 11th amendment, preventing the Federal courts from 
hearing suits against States by citizens of other States; the 12th 
amendment, regarding the election of the President and Vice President; 
the 17th amendment, establishing the direct election of Senators; the 
20th amendment, regulating Presidential terms and related matters; the 
22nd amendment, limiting the President to two terms; the 25th 
amendment, regarding Presidential succession; and the 27th amendment, 
deferring congressional pay raises until after an intervening election.
  There is little need to justify the inclusion of these provisions in 
the Constitution; however we may feel about them personally, their 
subject matter--namely the structure of the Federal Government--fits 
perfec1y within that of Articles I through IV.
  The second category of constitutional amendments consists of those 
that narrow the powers of government and expand or protect fundamental 
personal rights. These include the 13th amendment, banning slavery; the 
14th amendment, which extended citizenship to all persons ``born or 
naturalized in the United States, and subject to the jurisdiction 
thereof'' and guaranteed all citizens certain basic protections; and 
the 15th, 19th, 23rd, 24th and 26th amendments, each of which extended 
the vote to new groups of citizens.
  Clearly, the flag desecration amendment goes in a new direction. For 
constitutional purposes, as I have said before in these debates, it is 
neither fish nor fowl. It does not address a structural concern; it 
does not deal with Federal relations between the national and State 
governments; it extends, rather than narrows, the powers of government 
and it is antithetical to the whole thrust of the Constitution; and it 
does not protect a basic civil right. Indeed, many opponents of the 
amendment argue that it restricts personal liberty, namely the right of 
freedom of expression.
  The l3th amendment forbidding slavery may be viewed as the only other 
amendment regulating the conduct of individuals. The 13th amendment was 
the product of a bitter, fiercely contested civil war, and it was 
necessary to end one of the most loathsome and shameful institutions in 
our Nation's history. This was an exceptional amendment necessitated by 
exceptional circumstances.
  I have introduced a resolution in support of a constitutional 
amendment protecting voluntary prayer in school. This is also an 
exceptional amendment required by exceptional circumstances. Although 
the Supreme Court has never expressly prohibited children from 
voluntarily praying in school, children are discouraged from praying in 
school. School administrators are loathe to address the issue for fear 
they will be assailed, wrongly, for having broken the law. Confusion 
regarding the legal posture of voluntary prayer in school has created 
an impermissible, exceptional circumstance which, I believe, must be 
addressed in a way that permits school children to pray voluntarily as 
they deem appropriate. Consequently, I have proposed this year, as I 
have numerous times over the past 40 years, a constitutional amendment 
that simply clarifies that the first amendment neither requires nor 
prohibits voluntary prayer in school. This amendment would address the 
exceptional circumstances that afflict thousands of school children, 
nationwide, who mistakenly believe that prayer should not be a part of 
their daily lives at school.
  In the final analysis, it is the Constitution that is the foundation 
and guarantor of the people's liberties, protecting their rights to 
freedom of speech and to worship as they please. The flag represents 
all of the cherished liberties which we as Americans enjoy--liberties 
explicitly protected by the text of the U.S. Constitution and the Bill 
of Rights. The flag is a symbol of all that we hold near and dear, and 
of our Nation's history. It is also a symbol of our Constitutional 
values. The flag lives only because the Constitution lives. Yet, as I 
have said in past debates on this issue, the Constitution, unlike the 
flag, is not a symbol; it is the thing itself. I think it might be well 
if, in addition to focusing on efforts to protect the flag against 
injury, injury which, though reprehensible, does not damage 
Constitutional principles, we make a greater commitment to learning the 
historical context of our flag as well as the actual text and meaning 
of the United States Constitution.
  I do not believe that Americans can participate meaningfully in their 
government if they do not know the legal foundation and principles upon 
which it is based. I believe that greater familiarity with the 
provisions of the Constitution would give all Americans not only an 
enhanced appreciation of the flag as being a symbol of the liberties 
that are enshrined in the Constitution and the Bill of Rights, but also 
a literal understanding of our Government's checks and balances, their 
purposes, and of the duties of each of our three branches of Government 
to protect our personal freedoms.
  Finally, Old Glory lives because the Constitution lives, without 
which there would be no American Republic, there would be no American 
liberty, and there would be no American flag. We love that flag. But we 
must love the guarantees of the Constitution more. For the Constitution 
is not just a symbol; it is, as I say, the thing itself.
  The PRESIDING OFFICER (Mr. Alexander). The Senator from Illinois.
  Mr. DURBIN. How much time is remaining on this side?
  The PRESIDING OFFICER. The majority has 9 minutes; there remains 
15\1/2\ minutes on the Democratic side.

[[Page 12644]]


  Mr. DURBIN. I yield 5 minutes, at this time, to the Senator from 
Massachusetts.
  The PRESIDING OFFICER. The Senator from Massachusetts is recognized.
  Mr. KENNEDY. Will the Chair let me know when there is 30 seconds 
left, please?
  The PRESIDING OFFICER. I will do that.
  Mr. DURBIN. If the Senator will withhold for a moment?
  Mr. KENNEDY. Yes.


                           Amendment No. 4543

  Mr. DURBIN. I have an amendment at the desk. I call up amendment 
4543.
  The PRESIDING OFFICER. The clerk will report.
  The assistant legislative clerk read as follows:

       The Senator from Illinois [Mr. Durbin], for himself, Mrs. 
     Clinton, Mr. Bennett, and Mr. Bingaman, proposes an amendment 
     numbered 4543.

  Mr. DURBIN. I ask unanimous consent that the reading of the amendment 
be dispensed with.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The amendment is as follows:

              (Purpose: To provide a complete substitute)

       On page 2, line 2, strike ``(two'' and all that follows and 
     insert the following:

     SECTION 1. FLAG PROTECTION.

       (a) Short Title.--This section may be cited as the ``Flag 
     Protection Act of 2006''.
       (b) Findings and Purpose.--
       (1) Findings.--Congress finds that--
       (A) the flag of the United States is a unique symbol of 
     national unity and represents the values of liberty, justice, 
     and equality that make this Nation an example of freedom 
     unmatched throughout the world;
       (B) the Bill of Rights is a guarantee of those freedoms and 
     should not be amended in a manner that could be interpreted 
     to restrict freedom, a course that is regularly resorted to 
     by authoritarian governments which fear freedom and not by 
     free and democratic nations;
       (C) abuse of the flag of the United States causes more than 
     pain and distress to the overwhelming majority of the 
     American people and may amount to fighting words or a direct 
     threat to the physical and emotional well-being of 
     individuals at whom the threat is targeted; and
       (D) destruction of the flag of the United States can be 
     intended to incite a violent response rather than make a 
     political statement and such conduct is outside the 
     protections afforded by the first amendment to the 
     Constitution.
       (2) Purpose.--The purpose of this section is to provide the 
     maximum protection against the use of the flag of the United 
     States to promote violence while respecting the liberties 
     that it symbolizes.
       (c) Protection of the Flag of the United States Against Use 
     for Promoting Violence.--
       (1) In general.--Section 700 of title 18, United States 
     Code, is amended to read as follows:

     ``Sec. 700. Incitement; damage or destruction of property 
       involving the flag of the United States

       ``(a) Definition of Flag of the United States.--In this 
     section, the term `flag of the United States' means any flag 
     of the United States, or any part thereof, made of any 
     substance, in any size, in a form that is commonly displayed 
     as a flag and that would be taken to be a flag by the 
     reasonable observer.
       ``(b) Actions Promoting Violence.--Any person who destroys 
     or damages a flag of the United States with the primary 
     purpose and intent to incite or produce imminent violence or 
     a breach of the peace, and under circumstances in which the 
     person knows that it is reasonably likely to produce imminent 
     violence or a breach of the peace, shall be fined not more 
     than $100,000, imprisoned not more than 1 year, or both.
       ``(c) Flag Burning.--Any person who shall intentionally 
     threaten or intimidate any person or group of persons by 
     burning, or causing to be burned, a flag of the United States 
     shall be fined not more than $100,000, imprisoned for not 
     more than 1 year, or both.
       ``(d) Damaging a Flag Belonging to the United States.--Any 
     person who steals or knowingly converts to his or her use, or 
     to the use of another, a flag of the United States belonging 
     to the United States, and who intentionally destroys or 
     damages that flag, shall be fined not more than $250,000, 
     imprisoned not more than 2 years, or both.
       ``(e) Damaging a Flag of Another on Federal Land.--Any 
     person who, within any lands reserved for the use of the 
     United States, or under the exclusive or concurrent 
     jurisdiction of the United States, steals or knowingly 
     converts to his or her use, or to the use of another, a flag 
     of the United States belonging to another person, and who 
     intentionally destroys or damages that flag, shall be fined 
     not more than $250,000, imprisoned not more than 2 years, or 
     both.
       ``(f) Construction.--Nothing in this section shall be 
     construed to indicate an intent on the part of Congress to 
     deprive any State, territory, or possession of the United 
     States, or the Commonwealth of Puerto Rico of jurisdiction 
     over any offense over which it would have jurisdiction in the 
     absence of this section.''.
       (2) Technical and conforming amendment.--The chapter 
     analysis for chapter 33 of title 18, United States Code, is 
     amended by striking the item relating to section 700 and 
     inserting the following:

``700. Incitement; damage or destruction of property involving the flag 
              of the United States.''.
       (d) Severability.--If any provision of this section, or the 
     application of such a provision to any person or 
     circumstance, is held to be unconstitutional, the remainder 
     of the section, and the application of this section to any 
     other person or circumstance, shall not be affected by such 
     holding.

     SEC. 2. RESPECT FOR THE FUNERALS OF FALLEN HEROES.

       (a) Short Title.--This section may be cited as the 
     ``Respect for the Funerals of Fallen Heroes Act of 2006''.
       (b) In General.--Section 1387 of title 18, United States 
     Code, is amended to read as follows:

     ``Sec. 1387. Prohibition on demonstrations at funerals of 
       members or former members of the Armed Forces

       ``(a) In General.--It shall be unlawful for any person to 
     engage in a demonstration during the period beginning 60 
     minutes before and ending 60 minutes after the funeral of a 
     member or former member of the Armed Forces, any part of 
     which demonstration--
       ``(1)(A) takes place within the boundaries of the location 
     of such funeral and such location is not a cemetery under the 
     control of the National Cemetery Administration or part of 
     Arlington National Cemetery; or
       ``(B) takes place on the property of a cemetery under the 
     control of the National Cemetery Administration or on the 
     property of Arlington National Cemetery and the demonstration 
     has not been approved by the cemetery superintendent or the 
     director of the property on which the cemetery is located;
       ``(2)(A) takes place within 150 feet of the point of the 
     intersection between--
       ``(i) the boundary of the location of such funeral; and
       ``(ii) a road, pathway, or other route of ingress to or 
     egress from the location of such funeral; and
       ``(B) includes, as part of such demonstration, any 
     individual willfully making or assisting in the making of any 
     noise or diversion that disturbs or tends to disturb the 
     peace or good order of the funeral of a member or former 
     member of the Armed Forces; or
       ``(3) is within 300 feet of the boundary of the location of 
     such funeral and impedes the access to or egress from such 
     location.
       ``(b) Penalty.--Any person who violates subsection (a) 
     shall be fined under this title, imprisoned for not more than 
     1 year, or both.
       ``(c) Definitions.--In this section:
       ``(1) The term `Armed Forces' has the meaning given the 
     term in section 101 of title 10.
       ``(2) The term `funeral of a member or former member of the 
     Armed Forces' means any ceremony, procession, or memorial 
     service held in connection with the burial or cremation of a 
     member or former member of the Armed Forces.
       ``(3) The term `demonstration' includes--
       ``(A) any picketing or similar conduct;
       ``(B) any oration, speech, use of sound amplification 
     equipment or device, or similar conduct that is not part of a 
     funeral, memorial service, or ceremony;
       ``(C) the display of any placard, banner, flag, or similar 
     device, unless such a display is part of a funeral, memorial 
     service, or ceremony; and
       ``(D) the distribution of any handbill, pamphlet, leaflet, 
     or other written or printed matter other than a program 
     distributed as part of a funeral, memorial service, or 
     ceremony.
       ``(4) The term `boundary of the location', with respect to 
     a funeral of a member or former member of the Armed Forces, 
     means--
       ``(A) in the case of a funeral of a member or former member 
     of the Armed Forces that is held at a cemetery, the property 
     line of the cemetery;
       ``(B) in the case of a funeral of a member or former member 
     of the Armed Forces that is held at a mortuary, the property 
     line of the mortuary;
       ``(C) in the case of a funeral of a member or former member 
     of the Armed Forces that is held at a house of worship, the 
     property line of the house of worship; and
       ``(D) in the case of a funeral of a member or former member 
     of the Armed Forces that is held at any other kind of 
     location, the reasonable property line of that location.''.
       (c) Clerical Amendment.--The table of sections at the 
     beginning of chapter 67 of such title is amended by striking 
     the item relating to section 1387 and inserting the following 
     new item:

``1387. Prohibition on demonstrations at funerals of members or former 
              members of the Armed Forces.''.


[[Page 12645]]


  The PRESIDING OFFICER. The Senator from Massachusetts.
  Mr. KENNEDY. Mr. President, the Bill of Rights is our Nation's 
greatest accomplishment. It has been our great fortress against the 
passions and politics of every era. It has been our great beacon to the 
rest of the world, demonstrating that we value our liberty more deeply 
than power or riches. And it is fitting that such a document, which 
describes the rights inherent to a free people, has not been amended--
not once--in its entire 217 years.
  The Founders knew that the first amendment of the Bill of Rights 
would allow all manner of speech, including some speech that was 
contemptible. They were no strangers to fiery rhetoric. Most of them 
began their public lives not only by making speeches but by engaging in 
other expressive conduct, such as hanging King George's tax collectors 
in effigy and dumping tea into Boston Harbor. The breadth of the first 
amendment is not an accident; it is an essential part of the Founders' 
design.
  For the 217 years that followed the adoption of the Bill of Rights, 
we have managed to preserve every word. Every generation of leaders--
until today--considered the Bill of Rights to be sacred and recognized 
that they could not claim to be protecting our freedoms by curtailing 
them. And the past 217 years have proved that we can survive civil wars 
and world wars, fascism, communism, economic collapse and all manner of 
civil strife--all without diluting the Bill of Rights.
  So why are we addressing flag burning? I completely agree that flag 
burning is a contemptible and malicious act, calculated to outrage 
rather than persuade. But flag burning occurs infrequently and can 
usually be punished under existing laws. We are being asked to 
undermine the foundation of our democracy in order to squash a gnat.
  We might be forgiven for focusing on this small problem if we were 
not inundated with great ones.
  If the Senate wants to improve our Nation, why don't we turn today to 
legislation that would reduce the vast numbers of children who go to 
bed hungry each night?
  If the Senate wants to prevent despicable behavior, why don't we hold 
comprehensive hearings on the billions of tax dollars that have been 
stolen and squandered by companies hired to rebuild Iraq?
  If the Senate wants to keep faith with our veterans, why don't we 
leave the Constitution alone and work to improve our VA hospitals?
  The inescapable answer is that our Republican leaders' priorities are 
being driven by election year politics. But this is even more than a 
case of misplaced priorities. It is playing politics with our most 
fundamental freedom. Doing so opens up a Pandora's box, and if our 
cherished Bill of Rights is further diluted by future generations, that 
loss of liberty will trace its heritage to this Senate.
  Let me end with the words of our national anthem, the ``Star Spangled 
Banner''. As every schoolchild knows, the first stanza ends with these 
words:

     O say does that star spangled banner yet wave
     O'er the land of the free and the home of the brave?

  This amendment may protect our star spangled banner, but that flag 
will wave over a land that is a little less free and a little less 
brave. I urge this Senate to find the courage to leave the Bill of 
Rights intact.
  I yield the remainder of my time.
  Mr. DURBIN. How much time do we have?
  The PRESIDING OFFICER. The Senator has 11 minutes.
  Mr. DURBIN. I ask unanimous consent that we extend the time for 
debate 5 minutes on each side.
  The PRESIDING OFFICER. Is there objection? Without objection, it is 
so ordered.
  Mr. DURBIN. Mr. President, I would like to recognize the Senator from 
New York for 5 minutes.
  The PRESIDING OFFICER. The Senator from New York is recognized.
  Mrs. CLINTON. Mr. President, I am proud to stand here today and speak 
out for protecting the American flag and the Constitution, of which our 
flag is a revered and honored symbol. Whenever I see the flag of our 
country, I am reminded of how fortunate I am to have been born an 
American, born into a country that, at her best, nurtures our strengths 
and gives each of us the freedom to express our ideas, display our 
talents, and become the best we can be, to live up to our God-given 
potential.
  That is what the flag means to me. It represents the best of us--our 
ideals, our sense of duty and sacrifice: the American spirit. Those 
values transcend party, ethnicity, age, race, gender. Indeed, those 
values transcend even nationality. Around the world, our flag is a 
symbol of hope and freedom.
  I understand the outrage that is expressed today by my colleagues, 
and I agree wholeheartedly that maliciously burning or destroying an 
American flag is a deeply offensive and despicable act. It disrespects 
our Nation. It belittles the sacrifices of our brave veterans. It even 
sends a message to the soldiers who fight today protecting our freedom 
that their service is in some way to be disrespected and discounted.
  I have met with many veterans over the last many years, and I have 
heard the sense of betrayal that comes from those who risked their 
lives under that flag to protect our freedoms. That is why I support 
Federal legislation like the Durbin-Bennett amendment. When we think of 
all the flag symbolizes, I urge that we consider the very freedom and 
liberty the flag embodies. It is, in effect, a visual symbol of our 
Constitution and particularly our Bill of Rights. Our Founding Fathers 
were keenly aware that if the Constitution was to remain the 
cornerstone of our Government and laws, then changing it should be 
difficult. That is the system they set up.
  The infrequency of amendments in our long history is telling. 
Constitutional amendments have historically met two sets of objectives. 
The first deals with the structure of our Government and the 
relationship between the executive, legislative, and judiciary 
branches--our system of checks and balances. The second protects 
fundamental rights, including the 13th amendment that bans slavery and 
the 15th, 19th, 23rd, 24th, and 26th amendments, all of which expanded 
the right to vote.
  The amendment we debate today meets neither of these compelling 
objectives. The Constitution to which we all have sworn an oath is 
about protecting our rights. I believe we do that by honoring the 
Constitution, which has never been amended to deny or limit the Bill of 
Rights. I don't think we should start doing that today.
  Fortunately, we have an opportunity to protect our flag in a 
bipartisan and constitutional way. Senator Durbin's amendment, the Flag 
Protection Act of 2006, which I am cosponsoring, would among other 
things prohibit people from destroying a flag with the intent of 
inciting imminent violence, threatening someone by burning a flag, 
damaging a flag owned by the United States and damaging a flag that 
belongs to another while on Federal land.
  I believe, as do many legal scholars, this legislation will stand up 
to constitutional scrutiny. It is different from previous bills that 
have been voted on in this Chamber before.
  It adds a new provision that follows Supreme Court precedent, from 
the case Virginia v. Black decided in 2003. In that case, the Supreme 
Court held that the Government may prohibit people from burning crosses 
with the intent to intimidate. That should be a pretty straightforward 
proposition, but it was called into question. So the case made its way 
to the Supreme Court. The Court concluded that laws may, in fact, ban 
cross burnings meant to intimidate ``because burning a cross is a 
particularly virulent form of intimidation.''
  Burning a flag, to me, is also despicable, and I believe that there 
is no denying that when we talk about our flag, Americans' emotions run 
deep. We know when we look at a flag that is deliberately, maliciously 
destroyed, that is an intimidating experience in many instances.

[[Page 12646]]

  I agree that this burning, this desecration that can happen to our 
flag, is something that people have a right to ask this body to try to 
prohibit and prevent.
  I hope we can pass a law that criminalizes flag burning and 
desecration that is constitutional and can survive Supreme Court 
scrutiny.
  I appreciate all the New Yorkers, especially the veterans whom I 
represent, many of whom have come to see me here and in my State. They 
expressed feelings both pro and con. I assure them that I will join 
with my colleagues to stand up for their needs and to stand up for the 
needs of those young men and women wearing the uniform today.
  For those reasons, I am a proud cosponsor of Senator Durbin's 
amendment, and I hope that we can come together and pass a 
constitutional law that protects our flag and reaffirms our commitment 
to our Nation's Constitution.
  I yield the floor.
  The PRESIDING OFFICER. Who yields time?
  Mr. HATCH. Mr. President, I yield 2 minutes to the distinguished 
Senator from Idaho.
  The PRESIDING OFFICER. The Senator from Idaho is recognized.
  Mr. CRAIG. Mr. President, it is an honor and a privilege to stand 
with my fellow cosponsors in support of S.J. Res. 12, an amendment 
designed not merely to protect the physical integrity of the American 
flag but the very heart of our democratic republic. From 1776 to today, 
from the Marines who fought their way to plant the flag at the top of 
Iwo Jima to the firefighters who lifted the flag above the ruins of the 
World Trade Center, it is clear that ``Old Glory'' represents so much 
more than a nation. In truth, the American flag represents thousands of 
years of struggle in human history to achieve political liberty, 
religious autonomy, and freedom from want. More important, our flag 
represents the inspiration of the life of our Nation and what humanity 
has the potential to accomplish.
  Throughout our Nation's history, the American flag has enjoyed the 
protection not only of its people but its laws. Unfortunately, this 
safeguard was eroded in 1989 by the Supreme Court decision in Texas vs. 
Johnson. This decision, which many of my colleagues and I agree was 
misguided, found within the Constitution a right that had never before 
existed: the right to physically assault the flag under the First 
Amendment. Since then, Members of Congress have been faced with 
reconciling the tension between ``free speech'' and the symbolic 
importance of the American flag. Many have argued that this tension 
exists between matters of fact and matters of the heart. But in my 
view, protecting our flag is a matter of both.
  Whether we choose to acknowledge them or not, acts of violence or 
desecration towards our flag have become a grave reality in our 
country. Since the Texas decision in 1989, there have been more than 
120 reported cases of flag degradation across the United States, and 
this number reflects only those events that were publicized by the 
media. Even with that reality in mind, we must remember that the point 
is not how often the flag has been burned, defaced, trampled, or torn 
or even those responsible for such heinous acts. Rather, the point has 
to do with our response--especially our official response--to those 
events. As citizens, we can no longer allow flag burning to be 
considered a ``norm'' in our society. Although we can do nothing when 
terrorists or those with anti-American sentiments defile our flag 
abroad, we owe it to our brave service men and women, to ourselves, and 
to our children to do something when it happens on our own soil.
  Prior to the Texas decision, 48 out of our 50 States had statutes 
prohibiting flag desecration on the books. And since 1989, support for 
protecting our flag has only increased. Today, as the distinguished 
Majority Leader, Senator Frist, has said, an overwhelming 80 percent of 
the American public and all 50 State legislatures agree that the 
Constitution should allow States and the Federal Government to protect 
the flag. This is exactly what this resolution was designed to do. The 
amendment does not prohibit flag desecration itself, but will give 
Congress and democratically elected State legislatures the opportunity 
to deliberate and ultimately decide how they will guard the United 
States flag.
  It is important to note that the amendment process is not something 
that we as citizens or Congressmen should take lightly. However, when 
we look back in history, it is clear that constitutional amendments 
have only taken effect when both citizens and legislators have joined 
together to demand change, after prolonged periods of social unrest. As 
we look forward to our Nation's birthday next week, it is clear that 
now is the time to put an end to this political dissension and embrace 
the freedom and the responsibility we inherited from our forefathers. 
The amendment process is a fundamental provision of the Constitution, 
and by making use of it, we not only reaffirm its foundation, but we 
reveal the virtue embedded in democracy.
  Ultimately, we must remember that democracy, from 2500 years ago when 
originally articulated by philosophers like Aristotle, to more modern 
discussions about democratic nation-building in the Middle East, has 
always encompassed much more than a structural or institutional 
framework for government. Although elements such as free elections, 
dispersed power, basic human freedoms, equality, and an involved 
citizenry are important in thinking about democratic governments, the 
idea itself revolves around a vision. That vision acknowledges human 
beings are capable of securing their liberty but also establishing a 
free, prosperous, and ultimately, unified society. It is a vision that 
has inspired people everywhere, but especially Americans, with hope, 
optimism, and an unwavering sense of loyalty. Such a vision is best 
expressed in the waving stars and stripes of Old Glory.
  We often warn our children ``If you can't stand for something, you'll 
fall for anything.'' Today, it is my hope that we will come together 
and agree that there is nothing we would rather stand up for than the 
American flag.
  Let me speak specifically to a provision--the Durbin amendment--that 
should be troubling to all of us.
  Just this past month, this body voted unanimously to support, and the 
President has just signed, an act called the Respect for America's 
Fallen Heroes Act.
  The legislation that was authorized and moved out of the Veterans' 
Affairs Committee speaks to those who choose to demonstrate during 
periods in the ceremony at a cemetery in the burial of one of our 
fallen heroes.
  This body rightfully protected those families and those mourners in 
certain demonstrations at the VA's 223 national cemeteries and at 
Arlington National Cemetery. We differed a little with the House, and 
the reason we differed with the House is quite clear. There were two 
constitutional reasons for differing with the House.
  The first amendment right to assemble peacefully was one of those, 
and the second one was a federalism principle that I think the Senator 
from Illinois walks all over--that recognizes we only have the right to 
shape those activities on Federal property.
  The Durbin amendment fails miserably to adhere to the federalism 
principles--the very principle that drove my amendment to the House-
passed version of the Fallen Heroes Act. Therefore, I am here today to 
urge my colleagues to oppose the Durbin amendment on two grounds.
  First of all, the courts have said we can't legislate as it relates 
to flag burning; secondly, we ought not be telling States what to do as 
it relates to private cemeteries or State cemeteries. I think that is 
very clear.
  I said at the time we voted on the Fallen Heroes Act that I would ask 
that federalism be protected.
  I must say in conclusion that there is no commerce nexus in what the 
Senator from Illinois is attempting to do. This clearly is a federalism 
argument. It is a State and local responsibility to protect that which 
the Senator from Illinois is asking us to protect.

[[Page 12647]]

  We have already acted in defense of our fallen heroes on Federal 
property, as we should rightfully have done.
  Mr. HATCH. Mr. President, I yield 2 minutes to the Senator from 
Georgia.
  The PRESIDING OFFICER. The Senator from Georgia is recognized for 2 
minutes.
  Mr. CHAMBLISS. Mr. President, we are in the midst of a debate that, 
frankly, I think we ought to have, and I am proud to be a cosponsor of 
this resolution. I share the view of the majority of Georgians that the 
American flag symbolizes the strong values that our country stands 
for--freedom, liberty and representative democracy. And most 
importantly, our American flag represents the generations of men and 
women who have fought and died defending those values. I have the 
privilege of representing a proud military state, and nothing makes me 
more proud when traveling around Georgia than to stand with the folks I 
represent, face our flag--place my hand over my heart--and recite the 
Pledge of Allegiance.
  The flag represents our way of life. It hangs in our classrooms, over 
our police stations, fire stations, and courthouses. It flies above 
this historic Capitol. It was borne by troops in battle to protect our 
liberties and has covered the caskets of fallen soldiers, airmen, and 
marines who made the ultimate sacrifice for us. It is an emotional 
symbol to so many of us.
  I have had the opportunity to travel around the world to represent my 
state and my country--and the one symbol that everybody in and 
particularly outside of America looks to when they think about America 
is that great flag that we have lived under for all these many years. 
And for anybody to think that they ought to be able to stomp on that 
flag, or trample that flag or burn that flag or destroy that flag in 
any way other than a professional way is simply wrong.
  There are those who say we ought not ``change'' the Constitution. 
Yet, for 200 years the legislative branch of our governmental had the 
power under our Constitution to prohibit the desecration of the flag. 
Only in 1989 and 1990 did a divided Supreme Court, for the first time 
in our history, ``change'' the Constitution to say that Congress no 
longer had that power. I believe the amendment process, provided for by 
the Constitution itself, is the lawful means by which the American 
people may restore common sense when the Supreme Court abandons it.
  Let me take a moment to say that I understand that a substitute has 
been filed and that the substitute has in it language to prohibit 
protests at military funerals. The language is basically the same 
language as the bill that Senator Bayh and I introduced months ago.
  I hope we can work together to get this bill passed as a stand-alone 
bill. We need to ensure that families can bury their servicemembers in 
the peace and dignity and respect they have earned.
  I ask that a vote be made against the substitute and for the 
underlying resolution.
  The PRESIDING OFFICER. Who yields time?
  Mr. HATCH. Mr. President, I reserve the remainder of my time.
  Mr. DURBIN. Mr. President, I yield 3 minutes to the Senator from New 
Jersey.
  The PRESIDING OFFICER. The Senator from New Jersey is recognized.
  Mr. LAUTENBERG. Mr. President, I stand here proud of my country, 
proud of our liberties, proud of our flag. I went to Europe as a young 
man during World War II--the first time I was out of the country--and 
put on a uniform to defend the honor and freedoms that this country 
represents.
  Now we talk about flag desecration by the actions of a few who dare 
burn our flag. It is a repulsive, ugly act. We never want to see it. 
But do we take away their right to dissent and do we say America is a 
country that can't stand dissent? No. One's patriotism may be another 
person's desecration.
  Here's a picture--I show this poster not at all to denigrate the 
President of the United States, but that is the hand of the President 
of the United States using a magic marker to write on this flag. He 
never intended to be disrespectful; he loves this country. I differ 
with him on policy, but is that desecration, I ask you?
  I think this second poster is another example that represents 
desecration. Here he is, Kid Rock, with his head through the flag. Is 
that a desecration? It was such a desecration that he was invited to 
perform in a concert at the Republican Convention, and they partied 
with him. They loved him.
  What constitutes desecration? A lapel pin? We worry about what we do 
for our soldiers and say that we love the flag so much, but we won't 
allow news photos of flag-draped coffins coming into Dover? Pictures of 
those flags are banned?
  What is going on here? This is politicking at its worst. We should 
not violate the freedoms guaranteed by our Constitution and the Bill of 
Rights. It is raw politics. It doesn't demonstrate patriotism. I invite 
everybody to have the courage to vote against this amendment and show 
their courage and not to be intimidated by wondering what this one will 
think or wondering what that one will think.
  We are invited here to think about the freedoms that our country 
offers and our responsibility, and it is not only protecting the flag, 
it is protecting our liberties. It is making sure that we protect our 
veterans, that we give them the right kind of equipment, and that we 
give them the resources they need. That, to me, is the kind of 
patriotism that ought to be rewarded--not to say if you write in ink or 
you tear the flag that we are going to amend the Constitution to get at 
you. A half dozen or a dozen people have done that to offend everybody. 
That should not let us be stampeded into amending our Constitution.
  The PRESIDING OFFICER. Who yields time?
  Mr. HATCH. Mr. President, I yield 2 minutes to the distinguished 
Senator from South Carolina.
  Mr. GRAHAM. Mr. President, whether it would ever be a crime to write 
on the flag or wear it at a concert, who knows? This whole debate is 
about restoring the power of elected officials to be able to manage 
such events. The Supreme Court, in a 5-to-4 decision, took the power 
away from everyone who is elected to have any say about the flag. This 
happened in 1989.
  We have lived here free, open, safe, and secure of being able to 
regulate conduct toward disrespecting the flag for most of our life. 
Only since 1989 and a 5-to-4 decision have we had this problem.
  I stand here wanting every elected official to have the 
constitutional power that we previously possessed before the 5-to-4 
decision. And we will decide among ourselves what a good statute might 
be or may not be. Everybody can go through that process and be 
answerable to the people.
  I do not believe it is a burden to place on our citizens at large not 
to disrespect the flag. It is a burden we can bear as a people. If you 
do not like me, there are a million ways you can show your displeasure 
with my time in the Senate. But the fact is, I am an elected 
representative. All I am asking citizens as a whole is that we have one 
thing in common--that we are able to talk with each other and debate 
issues without destroying the flag.
  To me, that is a burden that we can bear. Freedom without 
responsibility is chaos. So it doesn't bother me one bit to turn to my 
worst enemy and say: This one thing is out of bounds. Have your say, 
have your fun, do what you are going to do, speak as loudly as you want 
to speak, but this is one thing I ask of you: please don't destroy the 
flag.
  To the few citizens who feel a need to do that, it doesn't bother me 
one bit for them to be told no. That is what is wrong with our country 
today. Nobody is afraid to tell anybody else no. I am not afraid at 
all; to the few who want to destroy the flag, I am gladly willing to 
tell you no. That doesn't make me any less free or you any less free.
  Mr. DURBIN. Mr. President, I yield 3 minutes to the ranking member, 
the distinguished Senator from Vermont.
  The PRESIDING OFFICER. The Senator from Vermont is recognized.
  Mr. LEAHY. Mr. President, I thank the distinguished Senator.

[[Page 12648]]

  As we close this debate and move on to a vote on this proposal, I 
commend to all Senators the words of the senior Senator from Hawaii, a 
war hero and veteran, a patriot, an American of the first order. He was 
long denied the Congressional Medal of Honor that he earned long ago 
and paid for dearly. He knows why he fought and sacrificed. No one on 
this floor has fought harder for this country, for its flag, for our 
freedoms or for our veterans and their families. He has shown 
characteristic leadership and courage in his statement today against 
doing damage to our Constitution through this proposed amendment. I am 
honored to stand with him in this fight to preserve our Bill of Rights. 
I commend the other veterans, as well, Senators Lautenberg and Kerry. I 
thank the Senators from West Virginia and Massachusetts for their 
statements and the Senator from New York.
  The action by the Republican leadership on this amendment reminds me 
of the action they forced in connection with the Terri Schiavo case. 
Then the President hurried back from a vacation with great fanfare to 
sign a bill rushed through the Republican-led Congress to intrude into 
a family and personal tragedy. The politicians overreached and the 
American people saw through it. Here, too, this election-year exercise 
will be seen for what it is.
  This is the second constitutional amendment that the Senate has 
considered this month in the Republican runup to the November election. 
Of course, among the amendments the Republican majority has chosen not 
to consider is the one promised by the 2000 Republican Party Platform, 
to require a balanced budget. Even Republican partisans must be 
embarrassed at the deficits that the Bush-Cheney administration and the 
Republican Congress have generated as they turned an historic budget 
surplus into an historic deficit.
  This proposed amendment regarding flag desecration is another in a 
series of amendments Republicans have pressed that would result in 
restricting the rights of the American people. It is one of more than 
65 constitutional amendments introduced so far in this Congress alone, 
and more than 11,000 since the First Congress convened in 1789. Can you 
imagine what the Constitution would look like if even a small fraction 
of these amendments had been adopted? The Constitution that we now 
revere as fundamental law, that provides us with unity and stability in 
times of trouble, would be like the old French Constitution--filed 
under ``p'' for ``periodicals.'' We honor our Senate oath when we 
``support and defend'' the Constitution. That is what I will be doing 
by voting today to uphold the Constitution and by voting against 
amending it.
  I am encouraged by the Senate's bipartisan rejection of action on 
S.J. Res. 1, the proposal to federalize marriage by way of a 
constitutional amendment. Forty-eight Senators voted against cloture, 
and I believe that others who voted in favor of more debate were 
nonetheless troubled by the proposal. The failure of the Republican 
leadership to obtain even a simple majority of Senators to support 
their efforts, on a procedural vote, should indicate to them how unwise 
it is to abuse the Constitution in a partisan election-year tactic.
  Like the marriage amendment, the flag amendment would artificially 
create division among the American people. The timing of this 
consideration, 4 months before the mid-term election, raises concerns, 
again, that the Constitution is being misused for partisan purposes. 
That is wrong.
  We act here in the Senate as stewards of the Constitution, guardians 
and trustees of a precious legacy. The truly precious part of that 
legacy does not lie in outward things--in monuments or statues or 
flags. All that these tangible things can do is remind us of what is 
truly precious: our liberty.
  This proposed amendment would be the first amendment to the 
Constitution that would narrow the precious freedoms enjoyed by 
Americans under the Bill of Rights. The infringement would fall on the 
first amendment, the cornerstone and foundation of all of our rights, 
of which we must be especially protective. The first amendment has 
stood up in times of war, during times of bitter protest. It has been 
one of the rocks on which our national unity and our national stability 
are built.
  The proposed amendment is a wrong-headed response to a crisis that 
does not exist. It would be an unprecedented limitation on the freedom 
Americans enjoy under the Bill of Rights and would do nothing to 
bolster respect for the flag. Respect for the flag flows from the 
freedoms we enjoy and from the sacrifices of those who have protected 
that freedom. Our cherished flag is the symbol of our Nation and of the 
Constitution that is the foundational keystone of our Republic, and of 
our freedom. This is about defending the Constitution, my friends, for 
which our flag stands. Each generation of Americans owes the next 
generations the effort and the dedication it takes to pass along the 
torch of freedom, undiminished. We owe it to them, and to those who 
have sacrificed so much for us, to cherish and to protect freedom, and 
the Constitution which is the written promise of that freedom.
  Rather than face the solemn responsibility of justifying an amendment 
to the Constitution, proponents of S.J. Res 12 have urged that we just 
pass it on to the States and let them decide. They said that Senators 
should abdicate their responsibility to exercise their best judgment 
and simply pass the buck. I could hardly believe my ears.
  Have we utterly forgotten the words of James Madison and the 
conservative conception of amendment the Founders built into our 
Constitution? The Constitution intentionally makes it difficult to pass 
amendments to our fundamental law. No amendment can pass unless every 
level of government, from the House to the Senate to the States, 
overwhelmingly supports it. Our system is undermined if each 
institution of government does not exercise independent judgment, if we 
do not fulfill our constitutional responsibility.
  This is the fifth time that this body has considered a constitutional 
amendment to punish flag burners. Some of us have voted on the proposal 
before; others have not. But either way, we are undertaking the gravest 
of responsibilities. We are taking in our hands the inalienable rights 
of Americans, today and the generations that follow long after we have 
gone. We are handling the most precious heirloom that we have, the 
finest thing that we can hope to pass on to our children and 
grandchildren. I would hope that at this of all times we would give the 
Constitution the respect that it deserves and support and defend it.
  This week we returned to use what little time left to the Senate this 
year to revisit a debate on that has wisely been rejected in this 
chamber four times in the last 17 years: a proposed amendment that 
would roll back our first amendment freedoms for the first time in our 
Nation's history. While we devote precious floor time to debate this 
matter, the Nation is gripped by the ongoing war in Iraq, the 
continuing threat of terrorism, soaring energy and health care prices, 
rising inflation, and a burgeoning deficit.
  Indeed, this debate is another illustration of the Republican 
leadership's disregard for the needs of the American people and the 
institutional responsibilities of this body. They continue to mistreat 
our Constitution as if it were a bulletin board on which to hang 
political posters or bumper stickers. The Constitution is too important 
to be used for partisan political purposes, and so is the American 
flag.
  The timing of this debate raises the question of why the Republican 
leadership has made this issue its top priority in the face of an 
unfinished agenda of legislative matters that do concern Americans day 
in and day out. The Senate has hardly made progress on a legislative 
agenda. We have yet to consider any of the 13 appropriations bills for 
the year. We have yet to enact a budget resolution, which was required 
by law to be in place on April 15. We have yet to enact a lobbying 
reform bill, a comprehensive immigration bill, or pension protection 
legislation. We have yet to consider or pass asbestos litigation reform 
legislation, patent reform legislation or the reauthorization

[[Page 12649]]

of the Voting Rights Act. We have yet to pass a long overdue raise in 
minimum wage, to take action to lower gas prices, health care costs or 
health insurance costs. Instead, with less than 10 weeks left in this 
session of Congress, the Republican leadership will work on none of 
those important matters.
  The amendment we consider today would artificially create division 
among the American people, and the timing of this debate--squarely in 
the middle of an election year--demonstrates, again, that the 
Constitution is being misused for partisan purposes. The Constitution 
deserves our respect, vigilant protection and in the words of our 
Senate oath our ``support''. We have a duty to defend it. The 
Constitution is not a blog for venting political opinions, curry 
favoring with voters or trying to bump up sagging poll numbers.
  The flag is an important symbol of all that makes America great. But 
the cynical use of symbolic politics in an election year will not 
address the very real needs of veterans and other Americans that are 
being left unmet by this administration and the Republican Congress.
  I know that many veterans support the flag desecration amendment and 
I respect their views. We must not forget though that there also are 
many veterans who oppose it. I appeared with a number of distinguished 
veterans on Flag Day who spoke about their dedication to the principles 
that make this country great and for which they fought and sacrificed. 
Those principles include our precious freedoms under the first 
amendment. These veterans of World War II, Korea, Vietnam, the First 
Gulf War and Iraq made clear that they fought for what the flag stands 
for, not just the symbol itself.
  Former Senator John Glenn, a combat veteran, wrote: ``The flag is the 
Nation's most powerful and emotional symbol. It is our most sacred 
symbol. And it is our most revered symbol. But it is a symbol. It 
symbolizes the freedoms that we have in this country, but it is not the 
freedoms themselves.''
  The late John Chafee, a distinguished member of this body and a 
highly decorated veteran of World War II and Korea, opposed this 
amendment because, he said: ``We cannot mandate respect and pride in 
the flag. In fact taking steps to require citizens to respect the flag, 
sullies its symbolism and significance.''
  Flag desecration is a despicable and reprehensible act. We agree with 
that--all of us agree that it is contemptible. That is not the issue, 
instead, the issue before us is whether we should amend the 
Constitution of the United States with all the risks that that entails 
and whether, for the first time in our history, we should narrow the 
precious freedoms ensured by the first amendment. Should we amend the 
first amendment so that the government can prosecute the handful of 
individuals who show contempt for the flag, those General Powell called 
miscreants? Such a monumental step is unwarranted and unwise.
  We are being tested. This generation of Americans is being tested by 
the threat of international terrorism. America wins when it meets that 
challenge without allowing those who threaten us to compromise us. We 
suffer losses not only when we suffer attacks as we did toward the end 
of President Bush's first year in office, but also when we give up 
those freedoms that define us as Americans. For the Congress to 
surrender our fundamental rights as Americans as proposed in the 
constitutional amendment is wrong.
  Following the very real attacks on 
9/11, Americans embraced the flag like never before, proudly displaying 
flags and flag symbols as a sign of unity and strength in the wake of 
those horrible acts against our nation. People around the world grieved 
for us, cared for us, and joined with us to fight terrorism. Over time, 
missteps and arrogance by the Bush-Cheney administration have alienated 
much of the world. Still, Americans of all political persuasions have 
not needed a law to tell them how precious our freedoms are or how to 
honor the Stars and Stripes.
  Supporters of this constitutional amendment seem to believe that 
Americans need rules about respecting the flag punishable by law. I 
strongly disagree and the American people have already proven them 
wrong. The American people do not need a lesson in cherishing and 
honoring our flag and the Republic for which it stands. That may be 
necessary in Saddam Hussein's Iraq or in Stalin's Soviet Union or in 
Castro's Cuba, but not in America.
  In fact, respect cannot be coerced or compelled. It can only be given 
voluntarily. We respect and love our country, but not because we are 
told to. Americans do not love our country because we would be punished 
if we did not. Some may find it more comfortable to silence dissenting 
voices, but coerced silence creates resentment, disrespect, and 
disunity. I proudly fly the flag at my farm in Vermont because, as an 
American, it is what I choose to do.
  In every hamlet and city and on every rural route in America, you can 
see our flag being flown with pride. Americans in overwhelming numbers 
are honoring our flag, not defacing it.
  Of course, there are times when individuals deface the flag or 
violate the rules for its care. For example, President Bush was 
captured on film signing a hand-held flag at a campaign rally in the 
summer of 2004. Appropriate or not, these acts are protected by our 
Constitution. They do not need to be punished by Congress after we pass 
a constitutional amendment restricting the first amendment rights of 
all Americans.
  In all of the hearings, all of the debate that we have devoted to 
this topic over the past 17 years, not one single person has testified 
that he respects the flag less because a protestor burned it, wrote on 
it, sewed it in the seat of his pants, or otherwise misused it. Not 
one.
  Not one single person has testified that they love our country less 
because Americans are free to express themselves in this way. Not one. 
There is not a single indication that any act of flag burning has 
lessened the respect that any American has for the flag or for our 
country. It would be pathetic if our love of country or respect for its 
fundamental principles was so weak that it could be diminished by such 
an act. We know that it is not.
  The truth is just the opposite. Occasional insults to the flag do 
nothing to diminish our respect for it. Rather, they remind us of our 
love for the flag, for our country, and for our freedom to speak, think 
and worship as we please.
  Our flag is a cherished symbol. As are the freedoms for which it 
stands, including the freedom to express unpopular speech or ideas--
even extremely unpopular ideas.
  As I have said many times throughout this debate, I wish the Senate 
would, instead, use its time to discuss and solve the real problems 
that real Americans are facing right now, instead of trying to stir 
public passions for political ends.
  I respectfully suggest that in the less than 10 weeks left to us in 
session this year, the Senate's resources would be better spent working 
to improve veterans' health care services, survivors' benefits and 
protecting veterans' and Americans' privacy. There are so many issues 
that we could turn to that would help improve the lives of our veterans 
and their families. Why not focus on them?
  Just today on the front page of the newspaper, we learned that this 
Government's bureaucratic bungling has resulted in widows of those who 
have served this Nation and sacrificed for all of us are being denied 
the survivors' benefits to which they should be entitled. This news 
follows closely public reports that post-traumatic stress disorders 
among our veterans are on the rise.
  Instead of seeking to turn the flag into a partisan political weapon 
and the Constitution into a billboard for political slogans, for 
partisan gain, we could be spending time debating these real issues or 
much-needed funding for services to our veterans. This President's 
budget requests have consistently fallen short of the levels needed to 
provide necessary services and care. President Bush's budgets force our 
veterans to subsidize their government

[[Page 12650]]

health care and simply does not account for the increase in demand for 
VA services due to the Iraq war.
  We could also be taking real action to prevent the kind of data 
losses that just affected millions of our veterans. We just witnessed 
the largest theft of private information from the Government ever, the 
loss of information on more than 26.5 million American veterans, 
including more than 2 million who are in active service, nearly 80 
percent of our active-duty force and a large percentage of our National 
Guard and the Reserve.
  Last year, Senator Specter and I introduced the Personal Data Privacy 
and Security Act, which requires Federal agencies and private data 
brokers to give prompt notice when sensitive personal information has 
been breached or stolen. The Judiciary Committee overwhelmingly 
approved this bill last fall, but almost a year later, the Senate has 
still not acted on this legislation. Had this bill been enacted, it 
would have required the VA to promptly notify the millions of veterans 
now at risk of identity theft about the theft of their personal data. 
Our bill also addresses the Government's use of personal data by 
putting privacy and security front and center in evaluating whether 
data brokers can be trusted with Government contracts that involve 
sensitive information about the American people.
  The Nation's veterans--who have been willing to make the ultimate 
sacrifice for their country--deserve to have the best tools available 
to protect themselves and their families from identity theft. The 
Senate should be acting to consider and pass comprehensive data privacy 
and security legislation.
  Sadly, the list of what we are not accomplishing goes on and on. The 
way things are going, under Republican leadership, this session will 
make the ``do nothing'' Congress against which President Harry Truman 
ran seem like a legislative juggernaut.
  The days we have spent on this amendment could be spent more 
productively on any of the matters I have mentioned. There are less 
than 10 weeks remaining in the Senate's scheduled work year. It seems 
that even with all that remains undone, at this point in this election 
year, floor time is available only for matters that advance the 
Republicans narrow political agenda.
  Republicans have the Senate majority; they control the schedule, they 
set the priorities. In my view, it reflects a strange set of priorities 
to think our national interest is best served at this time by debating 
a constitutional amendment to roll back the Bill of Rights for the 
first time in our history.
  I treat proposals to amend the Constitution with utmost seriousness, 
for it is a serious responsibility. I began this debate by noting my 
home State of Vermont's tradition of independence and commitment to the 
Bill of Rights. Vermont did not and would not become a State until 
1791, the year the Bill of Rights was ratified. At one time, we 
declared ourselves an independent republic.
  I plan to proudly uphold that tradition today by voting against this 
amendment, and I hope, although likely in vain, that the Senate will 
move on to more pressing matters that directly affect the lives and 
livelihoods of the American people.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

       June 8, 2006.--Now that the Republican leaders in the 
     Senate have finished wasting the nation's time over a 
     constitutional ban on gay marriage, we're bracing for Act Two 
     of the culture-war circus that the White House is staging to 
     get out the right-wing vote this fall.
       Senator Bill Frist, the majority leader, plans to continue 
     to set aside work on pressing issues facing the country to 
     vote on yet another unworthy constitutional amendment--a 
     prohibition on burning the American flag.
       If the gay marriage amendment was a pathetic attempt to 
     change the subject in an election year, the flag-burning 
     proposal is simply ridiculous. At least there actually is a 
     national debate about marriage, and many thousands of gay 
     couples want to wed. Flag burning is an issue that exists 
     only for the purpose of pandering to a tiny slice of voters. 
     Supporters of the amendment cannot point to a single instance 
     of anti-American flag burning in the last 30 years. The video 
     images that the American Legion finds so offensive to 
     veterans and other Americans are either of Vietnam-era 
     vintage or from other countries.
       Nevertheless, flag burning remains one of those ``wedge 
     issues'' that Republicans use to denigrate the patriotism of 
     Democratic candidates or to get the party's base out to vote.
       The other big difference between the two amendments is that 
     the ban on gay marriage was never going to get the two-thirds 
     vote in Congress required to send it to the states for 
     ratification. Yesterday, the Senate rejected it by 49 to 48, 
     with the help of seven Republicans.
       The flag-burning amendment, on the other hand, actually 
     could pass. A realistic nose count based on members' public 
     statements and how they voted when the measure last came up, 
     in 2000, suggests the Senate may be just a single vote short 
     of punching a hole in free speech.
       Senator Harry Reid, the minority leader, should be rallying 
     Democrats to join the small handful of principled Republicans 
     so far willing to oppose the amendment. But as things stand, 
     he is among the Democrats who plan to vote for this 
     constitutional vandalism. Opponents of the amendment, like 
     Senator Patrick Leahy, Democrat of Vermont, are standing on 
     firm ground in trying to protect the Bill of Rights from an 
     election-year stunt.
       It is the patriotic thing to do.
                                  ____


         Congress Nears Choice: Protect Freedom or Stoke Anger?

       In early June an allegedly drunken man in West Haven, 
     Conn., yelled racial epithets and tore up an American flag 
     while arguing with police and passersby. Earlier in the 
     spring, instances of vandalism involving flags were reported 
     in New Hampshire and New York.
       Those three episodes of 2006--as compiled by the Citizens 
     Flag Alliance, a group pushing for a constitutional amendment 
     to protect the flag--constitute the raging menace of flag 
     desecration.
       In fact, they show what a non-issue flag desecration is. 
     Instances are rare and easily addressed by local laws. They 
     hardly require the extraordinary act of amending the 
     Constitution.
       But in a Congress unwilling to address important matters--
     its own ruinous spending and flagrant corruption to name just 
     two--symbolism is the politically convenient substitute for 
     substance. The Senate will soon take up an amendment to stop 
     flag burning, and the vote is expected to be razor close. The 
     House of Representatives has passed it, meaning that it could 
     soon be sent to state legislatures, where it would be 
     ratified if three-quarters approve.
       While it's tempting to dismiss this as trivial election-
     year posturing, the precedent is troubling. It would for the 
     first time alter the cornerstone of American freedom, the 
     Constitution's First Amendment.
       That is not a small matter. The First Amendment is the 
     reason Americans are free to say what they think. It is also 
     the reason people here can worship as they wish, associate 
     with whomever they please, and get news and information from 
     a free and independent press. It gives citizens a right to 
     have grievances redressed. To limit those rights--especially 
     for so trivial a reason--is to say they are no longer 
     sacrosanct.
       They should be. They are what makes America unique.
       If Congress banned something as pathetic as flag 
     desecration to score political points, surely it would 
     consider limiting other unpopular speech.
       The amendment's wording virtually guarantees that outcome. 
     Would it, for instance, cover depictions of flags as well as 
     actual cloth banners? Would sitting on a flag patch sewn onto 
     the back of a pair of jeans count?
       And what about the issue of flying a flag upside down? This 
     has already become the preferred form of protest for people 
     pushing for everything from an immediate withdrawal from Iraq 
     to better psychiatric care for veterans. These protesters 
     often say that they respect the values the flag represents, 
     but that they believe those values are being subverted by 
     people in power. Does this country really want to criminalize 
     such a nuanced form of political dissent?
       These issues would be left to legislation drafted by future 
     Congresses and interpreted by courts. All of that, in turn, 
     would weaken individual rights that are at the Constitution's 
     heart.
       And for what gain? Proponents of an amendment say the flag 
     is such an important symbol of American democracy that it 
     deserves a special status. But the Connecticut flag burner 
     was charged with seven offenses ranging from public 
     consumption of alcohol to criminal mischief. Surely, that is 
     sufficient.
       In fact, what makes the flag so special is this: It stands 
     for a nation that deems individual liberties so important, it 
     tolerates unpopular minority opinion.
       The main threat to the flag comes not from the occasional 
     burning of Old Glory. It comes from those who would sacrifice 
     the principles the flag represents.

[[Page 12651]]

     
                                  ____
               [From the Washington Post, June 21, 2006]

                           Flag Burning Redux

       With Congressional elections coming, the Republican 
     leadership has found a pivotal issue. Terrorism? Hardly. 
     Entitlement reform? Don't be silly. We're talking about the 
     grave threat to America known as flag burning. Yes, that 
     election-year favorite is back: the proposed amendment to the 
     Constitution of the United States allowing Congress to 
     criminally punish the ``physical desecration'' of the 
     American national banner. If you haven't noticed a rash of 
     flag-burning incidents sweeping the nation that's because, 
     well, there isn't one. But that doesn't stop Republicans from 
     trotting it out as a more-patriotic-than-thou card.
       They are, as always, close to having the votes to send it 
     to the states for ratification. The House of Representatives 
     has passed the measure and the vote will be tight in the 
     Senate, where the Judiciary Committee approved the amendment 
     11 to 7. We hope the amendment will fall short of the needed 
     two-thirds majority on the Senate floor; it's depressing 
     enough that a majority of senators will support it.
       The amendment would soil the First Amendment's command that 
     Congress shall ``make no law . . . abridging the freedom of 
     speech.'' Flag burning is an odious form of expression. But 
     there are lots of odious forms of expression the First 
     Amendment protects: Holocaust denial and swastikas, racist 
     rants and giant Confederate flags, hammers and sickles. The 
     amendment's power is in its self-confident sweep: Speech, 
     including expressive acts, will not be censored. Government 
     cannot punish ideas. Members of Congress who would protect 
     the flag thus do it far greater damage than a few miscreants 
     with matches.

  The PRESIDING OFFICER. The assistant Democratic leader is recognized.
  Mr. DURBIN. Mr. President, I have spoken to the Senator from Utah, 
and I would like to ask how much time I have remaining.
  The PRESIDING OFFICER. Four minutes.
  Mr. DURBIN. I understand the Senator from Utah will then close.
  The PRESIDING OFFICER. He has 6 minutes.
  Mr. DURBIN. Thank you, Mr. President.
  Mr. President, first, I ask unanimous consent that Senators Carper 
and Boxer be added as cosponsors to my pending amendment, and I ask 
unanimous consent that three commentaries in opposition to the flag 
amendment be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

              [From the Chicago Sun Times, June 21, 2006]

           Ill-Starred Flag Amendment Would Do Nation No Good

       Nearly 30 years after Cubs outfielder Rick Monday snatched 
     an American flag from two idiots at Dodger Stadium who had 
     doused it in lighter fluid and were trying to light it with a 
     match, we still applaud him for his exemplary act of 
     patriotism--for acting on our behalf. As devoted as we are to 
     free speech, we would have been hard-pressed to bottle our 
     anger over the desecration of the Stars and Stripes before 
     tens of thousands of spectators.
       Our appreciation of Monday was not diminished by his 
     appearance last week at a rally for a proposed flag 
     desecration amendment--an event at which he exhibited the 
     rescued flag, which was presented to him by the Dodgers. But 
     however heartfelt this gesture was, it was wrongheaded in 
     lending support to a manufactured cause with no real value 
     except a political one, the equivalent of throwing red meat 
     on the table.
       You would think, from the emotional momentum this issue has 
     gained in recent times, there is a pressing need for an anti-
     flag-burning amendment. Most Americans are in favor of it. 
     The House has backed the amendment, and the Senate may well 
     follow suit next week, when it is scheduled to decide on the 
     constitutional ban. Reportedly, it is within a vote or two of 
     the two-thirds majority it needs. In 2000, it fell four votes 
     short.
       But, in fact, this is a classic example of a solution in 
     search of a problem. Flag burnings, which most of us 
     associate with Vietnam-era protests, have all but disappeared 
     from the American landscape. No protests of the war in Iraq 
     (which have been relatively few) have featured flag 
     desecrations. The closest anyone has come to publicly 
     mistreating the flag, arguably, was a case of two athletes 
     wrapping themselves in it at the Olympics.
       You might also think this is an issue in need of legal 
     clarification. But, no, the Supreme Court ruled in 1989 that 
     as distasteful or offensive as this kind of protest is, it is 
     protected by the First Amendment. A year later, the high 
     court overturned the federal Flag Protection Act. The fact 
     that yet another effort is being mounted tells you not that 
     the principles have changed, but the political climate has. 
     Sorry, but that's not a good enough reason to alter the 
     Constitution.
       This represents the consensus of the Sun-Times News Group 
     of 100 newspapers in the metro Chicago area.
                                  ____


           Emergency Committee to Defend the First Amendment

       The following statement was released today by Professors 
     Norman Dorsen and Charles Fried, Co-chairs of the Emergency 
     Committee to Defend the First Amendment. The Committee is 
     composed of prominent Americans--conservative, moderate and 
     liberal--including former officials of the Reagan 
     Administration, former Republican members of Congress, senior 
     professors of constitutional law, several former presidents 
     of the American Bar Association, and leaders of other 
     national organizations.
       The First Amendment to the United States Constitution has 
     served us since 1791 through wars, including a Civil War, and 
     crises of every sort without the need for amendment. It is an 
     icon of our freedom. To amend it now comes close to 
     vandalism.
       The proposed constitutional amendment limits how people may 
     protest and sets a precedent for banning other forms of 
     dissent. If the flag, why not the Great Seal of the United 
     States or the Constitution? Why not the Bible or (to be 
     ecumenical) religious icons of all faiths? The founders of 
     this country would have been shocked at the notion that the 
     government could restrict ways by which the people can 
     protest conditions in the country or the government's own 
     policies.
       As the Boston Tea Party illustrates, the founders were 
     familiar with symbolic protest. Moreover, the American 
     revolutionaries were also not exactly kind to their country's 
     flag, the Union Jack. George Washington ordered thirteen red 
     and white stripes sewn onto it and called it the ``Thirteen 
     Rebellious Stripes.'' Pennsylvania's first flag after 
     declaring independence was a British flag with a coiled 
     serpent ready to strike at the English ensign. These protests 
     ``desecrated'' the country's then-existing flag.
       Totalitarian countries fear dissenters sufficiently to 
     suppress their protests. A free nation relies on having the 
     better argument. It is possible to burn a particular flag, 
     but no one can destroy the symbol and meaning of the flag. No 
     matter how many flags are burned, the American flag will 
     still exist, untarnished and waving bravely in the breeze.
       The Emergency Committee urges the Senate to demonstrate the 
     sort of statesmanship of which it is capable by rejecting the 
     proposed constitutional amendment.


           Emergency Committee to Defend the First Amendment:

       Terry Anderson; Writer, former Journalist; Former Lebanese 
     Hostage.
       Derek Bok; President, Harvard University (1971-1991); Dean, 
     Harvard Law School (1968-1971).
       Clint Bolick; Litigation Director, Institute for Justice.
       Benjamin Civiletti; Partner, Venable, Baetjer & Howard; 
     U.S. Attorney General (1979-1981).
       John J. Curtin, Jr.; Partner, Bingham Dana & Gould; 
     President, American Bar Association (1990-1991).
       Norman Dorsen; Stokes Professor of Law, New York University 
     Law School; Counselor to the President of New York 
     University; President, American Civil Liberties Union (1976-
     1991).
       Bruce Fein; Lawyer and Journalist; Former Department of 
     Justice Attorney.
       Charles Fried; The Beneficial Professor of Law, Harvard Law 
     School; Solicitor-General of the United States (1985-1989).
       Shirley M. Hufstedler; Of Counsel, Morrison and Forster; 
     Circuit Judge, U.S. Court of Appeals, 9th Circuit (1968-
     1979).
       Martin Lipton, Partner, Wachtell, Lipton, Rosen & Katz.
       Robert MacCrate; Partner, Sullivan & Cromwell; President, 
     American Bar Association (1987-1988).
       Charles McC. Mathias, Jr.; Partner, Jones, Day, Reavis & 
     Pogue; U.S. Senator (R-MD, 1969-1987).
       J. Michael McWilliams; Partner, Tydings & Rosenberg; 
     President, American Bar Association (1992-1993).
       Robert M. O'Neil; Director of the Thomas Jefferson Center; 
     President, University of Virginia (1985-1990).
       Roswell B. Perkins; Partner, Debevoise & Plimpton; Former 
     President, American Law Institute.
       Roger Pilon; Director, Center for Constitutional Studies, 
     The Cato Institute.
       E. Barrett Prettyman, Jr.; Partner, Hogan & Hartson; 
     Trustee, National Council on Crime and Delinquency.
       Roberta Cooper Ramo; Partner, Modrall, Sperling, Roehl, 
     Harris & Sisk; President, American Bar Association (1995-
     1996).
       James H. Warner; Lawyer; White House Domestic Policy Staff 
     (1985-1989); Former Vietnam POW.
                                  ____

                                              The American Legion,


                                    American Legion Post #315,

                                 San Francisco, CA, July 14, 2005.
     Re Oppose S.J. Res. 12, the Flag ``Desecration'' 
         Constitutional Amendment.
       Dear Senator: As the Commander of American Legion Post #315 
     in San Francisco,

[[Page 12652]]

     CA, I write to urge you to oppose S.J. Res. 12, the proposed 
     constitutional amendment to prohibit ``desecration'' of the 
     flag. Although the national American Legion leadership 
     supports this amendment, I wish to express my disagreement 
     with that position and my dismay with the apparent 
     willingness of Congress to amend the First Amendment to 
     restrict free speech.
       Acts of burning or otherwise defacing the flag are rare, 
     but they can be a powerful form of expression. I should be 
     clear that it saddens me to think of those who would damage 
     the flag, but I believe it my duty to defend their right to 
     do so. The flag stands for freedom, yet this constitutional 
     amendment would diminish fundamental freedoms by undermining 
     the right to free expression guaranteed by the Bill of 
     Rights.
       American Legion posts across the country recently marked 
     the passing of Flag Day by organizing flag burning ceremonies 
     to dispose of worn and damaged flags. Proponents of the flag 
     amendment say they seek to ban an act, not a form of 
     expression. Surely they do not mean to ban respectful flag 
     disposal ceremonies like these. Rather, they seek to prohibit 
     acts of flag desecration that are intended to convey a 
     certain political message. When the founders drafted the 
     First Amendment, they intended to protect peaceful 
     expression, however unpopular and offensive. In fact, it is 
     precisely such unpopular speech that requires the protection 
     afforded by the Constitution.
       There is significant diversity of opinion among veterans in 
     general and American Legion members in particular on this 
     issue. In fact, just last year a past National Commander of 
     the Legion, Keith Kreul, gave Senate testimony in opposition 
     to the flag amendment. I suggest, as Mr. Kreul did, that this 
     amendment is not an appropriate way to honor the service of 
     this nation's veterans. There are many pressing concerns 
     facing our veterans and active duty troops, including 
     shortfalls in funding for veterans healthcare and daily 
     dangers facing troops serving in Iraq. The flag amendment is 
     an unfortunate distraction from these issues.
       If passed, the flag amendment would constitute the first-
     ever restriction on the Bill of Rights. I urge you to oppose 
     this measure. In doing so, you will defend the true spirit of 
     the Constitution, and the freedoms for which the flag stands.
           Sincerely,

                                           Sharon Lee Kufeldt,

                             Commander, American Legion Post #315,
                                           U.S. Air Force Veteran.

  Mr. DURBIN. Mr. President, you have heard the debate for 2 days now. 
On one side of the aisle, those supporting this amendment have 
summarized their feelings in three words: Respect the flag. On the 
other side of the debate are those who say: Respect the Constitution. 
They understand that what we are being asked to do is historic. Senator 
Byrd has reminded us. This would be the first time in the history of 
the United States of America that we would amend the Bill of Rights.
  It is a historic moment. And it takes some audacity and bravado for 
any sitting Member of the U.S. Senate to believe they have a better 
idea than James Madison, Thomas Jefferson, and our Founding Fathers had 
over 200 years ago. It takes a special circumstance for us to even 
consider changing that beloved first amendment, which has guided us for 
more than two centuries.
  The incidents of flag burning are rare. They are disgusting. But 
there are ways we can deal with this without defiling this 
Constitution.
  Senator Hatch's amendment says do not desecrate the flag. I believe 
we should not desecrate the Constitution. There is a way. The pending 
amendment points to the way: a Federal criminal statute carefully drawn 
to meet the Supreme Court test that would really deal with preserving 
and protecting the flag as we know it, as an important symbol of 
America, without invading our Bill of Rights. And the second part of my 
amendment which I am offering is one that you know about because you 
hear about it all the time.
  There is this demented group--I will not even give the full name of 
this church from Topeka, KS, because I do not want to give them any 
publicity. But this demented group is appearing now at military 
funerals, the funerals of veterans and soldiers, demonstrating. Here 
they are issuing a press release that says: ``Thank God for IEDs 
(Improvised Explosive Devices),'' announcing they are coming to my home 
State of Illinois to picket the funeral of Army SPC Brian Romines, who 
was 20 years old, at the Anna Heights Baptist Church in Anna, IL. It is 
disgusting: this family, racked with grief, trying to get through the 
most difficult day of their lives, having to walk through the lines of 
demonstrators this demented person would bring to the funeral.
  Well, the Senator from Idaho has said on the floor that I have gone 
too far with my amendment, I have gone too far in limiting these 
demonstrations at military funerals. I think he is wrong. These 
demonstrations are wrong not just in national cemeteries, they are 
wrong in all cemeteries. They are wrong at all churches. They are wrong 
at all funerals. And the Senate will have a chance, with my amendment, 
to vote and say that we will limit this kind of disgusting activity 
that disrespects the men and women who have fought and died for 
America.
  That is the amendment before us, an amendment to protect our flag and 
to protect the memory of those who have fought and died for our 
country. I am proud to offer this bipartisan amendment. It is an 
amendment which, at the end of the day, we can point to with pride 
because we have done something important.
  But I urge my colleagues, think long and hard about being the first 
to amend the Bill of Rights in the history of the United States of 
America. We have given our oath to uphold and defend that Constitution. 
Today we will be put to the test. Will we uphold and defend that 
Constitution from a change that is totally unnecessary?
  Mr. President, I yield the floor.
  The PRESIDING OFFICER. The Senator's time has expired.
  The Senator from Utah.
  Mr. HATCH. Mr. President, what does the Bill of Rights have to do 
with this? That argument is not a valid argument. Look at what the 
amendment says:

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

  There is no interference with the Bill of Rights. Yet the Senator--
the Senators--who want to so-called protect the Bill of Rights have 
come up with a statute that does exactly the opposite, according to 
their way of looking at it.
  Frankly, there are only five Justices who said that defecating on the 
flag, urinating on the flag, burning it with contempt, and stomping on 
it is not a violation of the first amendment.
  But this amendment does not have anything to do with that. All this 
amendment says is that we are going to give the power back to the 
people and to the people's representatives in Congress, and they will 
make the determination as to how we protect the flag, if they decide 
to. In other words, we are going to restore the Constitution to what it 
was before these unelected five Justices on the Supreme Court changed 
it. And four others disagreed with them.
  By the way, the distinguished Senator from Massachusetts said this is 
election-year politics. I wonder how he explains the 6 years in a row 
that the House of Representatives, in bipartisan votes, has passed this 
amendment by the requisite two-thirds vote? I wonder how he is going to 
explain that 48 States had antiflag desecration statutes before the 
Supreme Court wiped all of that out and all of the people's work and 
all of the people's will out. What is he going to say about the 50 
States, including his, that have petitioned us for this amendment? 
Fifty State legislatures have asked for this amendment.
  There are 60 cosponsors in the Senate. There are at least six others 
who have always voted to protect the flag. I question whether all six 
of those will vote for this. But the fact is, they should because they 
have always voted for it. So there are at least 66 people who should be 
voting for it.
  There is no narrowing of the Bill of Rights by this amendment. That 
argument would have to take place after this amendment passes by the 
two-thirds vote, if it could, and then is ratified by 38 States. Then 
there would be a debate where they could raise all the issues they want 
about the first amendment, faulty though they are.
  The fact is that I was asked this afternoon by a large body of media: 
Is this the most important thing the Senate could be doing at this 
time? I can tell you, you're darn right it is. The

[[Page 12653]]

fact is, we had five unelected Justices who overturned 100 years of 
Supreme Court precedent, backing up 48 States that have had antiflag 
desecration amendments. We have had 50 States ask for a change here so 
we can go back to protecting our flag.
  What we would be doing is sending a message to the Court: You cannot 
usurp the power of the Congress of the United States. That is what is 
involved. I hear time after time complaints about the courts usurping 
the powers of the Congress and other branches usurping the powers of 
the Congress. Here is a chance to bring that power back to the Congress 
where it belongs and then have that debate. It would still take 60 
votes because of the opposition of some. It would still take 60 votes 
to pass a statute if we could pass this amendment.
  The fact is, if you want to respect the Constitution, let's restore 
it to what the Constitution was before five unelected jurists changed 
that Constitution. The fact is, this amendment is one of the most 
important things we can do to send a message to the U.S. Supreme Court 
that: You cannot usurp the power of the legislative branch of this 
Government.
  It does nothing about the Bill of Rights. That would have to be 
argued later if we pass this amendment and have it ratified. Then we 
could argue about the Bill of Rights later. And I will bet you money, 
the only reason Senators are claiming the Bill of Rights is to try to 
justify their vote. But now, if they believe the Bill of Rights is 
being interfered with, then why would they come up with a statute to do 
the very same thing they are saying this amendment does? Why have they 
always come up with a statute that basically, if you use their logic, 
invades the first amendment to the Constitution? Why would they do 
that? There is only one reason. It is a political reason to cover their 
backsides.
  Mr. President, I thank the Senate.
  The PRESIDING OFFICER. The majority leader is recognized.
  Mr. FRIST. Mr. President, in a few moments we will be voting on the 
two amendments, which really follows the good debate we have had since 
yesterday when we began debate on this flag protection amendment. As I 
promised early in the year, I brought this joint resolution to the 
floor this week in part in anticipation of the Fourth of July recess--a 
time when all of us go back and think about the flag and the enduring 
ideals of freedom and opportunity that it represents.
  It has been 6 years since we have had that debate on this floor. It 
is something that comes to the House each and every Congress, and they 
vote on that. So I felt it would be appropriate. Indeed, in listening 
to the debate--the Constitution issues and the importance of the flag--
I have been very pleased, and I hope that debate reflects passage of 
the amendment in a few moments.
  It is my hope, when we return to our home States next week or later 
this weekend to celebrate the anniversary of America's independence, we 
will be able to tell our fellow citizens that we did the right thing 
here in Congress and voted to give Congress the power to protect the 
Stars and Stripes.
  Americans have so much to be proud of. We enjoy a greater measure of 
liberty and justice and equality than any other country in human 
history. Millions upon millions of people have come to these shores 
seeking a better life, and they have found it here. We are a nation of 
hopeful, resourceful people who continually strive to live up to our 
ideals and provide greater and better opportunities for our children. 
There is one symbol that above all others encapsulates that hope, that 
freedom, our history and our values, and that is the American flag.
  From the time we are schoolchildren, we honor our flag and all it 
stands for. With our hand over our heart, each morning here in this 
body, the U.S. Senate, we honor it. In times of crisis, raising those 
Stars and Stripes has symbolized our unity, our perseverance as a 
nation, as a people. Whether it is the marine struggling to plant the 
flag on Iwo Jima or firefighters lifting the flag above the ruins of 
the World Trade Center, it is that flag which inspires us to great acts 
of heroism, of courage, of strength.
  Unfortunately, however, there are no laws on the books to stop anyone 
from destroying this cherished symbol. Although the vast majority of 
Americans--over 80 percent--and all 50 of our State legislatures 
believe the flag should be protected, the Federal Government is 
currently powerless to enforce flag protection laws. That is because in 
1989, as we talked about, the Supreme Court, in a 5-to-4 decision, 
overturned 200 years of precedent and struck down all laws prohibiting 
flag desecration. As our colleague from Utah just said, it was a one-
vote margin, 5 to 4, with five Judges stripping the right of the 
American people--through their voice, through this body--to protect 
that flag. It is my hope and really my purpose in bringing that 
amendment to the floor to reverse this decision, this activist 
decision, and return to the American people the ability to protect the 
flag, if they so wish.
  So in a few minutes in the Senate, we are going to have a vote to 
return to the people, through this body, the opportunity to protect the 
flag. And it is one single, simple sentence:

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

  That is what we will be voting on. Key words: ``The Congress shall 
have the power.'' All 50 States have passed resolutions calling on the 
Congress to pass a flag amendment. The House passed a constitutional 
amendment to protect against desecration of the American flag in this 
Congress and in the last Congress, in the last Congress, in the last 
Congress, in the last Congress, and in the last Congress, and now it is 
time for us to do the same. We have failed to muster those two-thirds 
votes in the past.
  Today, we have a new opportunity to change that and to honor the 
wishes of the American people. We are a Nation founded on principles. 
Our flag is what binds us to those principles, to one another; it is 
that physical symbol of our values, liberty, justice, freedom, and 
independence. It commands our loyalty. To countless people around the 
world, the red, white, and blue represents the highest of human 
ideals--freedom.
  I know we have heard again and again through the media the whole 
issue about flag burning being protected as an exercise of free speech. 
But is defacing a Government building free speech? Do we let our 
monuments be vandalized? Clearly, the answer is no. I believe that our 
American flag deserves the same respect. America is the freest country 
in the world and we have the right to express dissent and persuade 
fellow citizens of our views. But destroying the very emblem of that 
freedom is just plain wrong. Countless brave men and women have died 
defending the flag. It is but a small, humble act for us to defend it.
  I will close with the words of our esteemed colleague, Senator Hatch, 
who has done such a wonderful job in managing this particular bill and 
a tireless advocate for the amendment. Here are his words:

       Whatever our differences of party, race, religion, or 
     socioeconomic status, the flag reminds us that we are very 
     much one people, united in a shared destiny, bonded in a 
     common faith in our Nation and the profound belief in 
     personal liberty that our Nation protects.

  Mr. President, I yield the floor.
  The PRESIDING OFFICER. Under the previous order, the question is on 
agreeing to the Durbin amendment.
  Mr. DURBIN. Mr. President, I ask for the yeas and nays.
  The PRESIDING OFFICER. Is there a sufficient second? There is a 
sufficient second.
  The clerk will call the roll.
  The legislative clerk called the roll.
  The PRESIDING OFFICER. Are there any other Senators in the Chamber 
desiring to vote?
  The result was announced--yeas 36, nays 64, as follows:

                      [Rollcall Vote No. 188 Leg.]

                                YEAS--36

     Akaka
     Bennett
     Biden
     Bingaman
     Boxer
     Byrd
     Cantwell
     Carper
     Chafee
     Clinton
     Conrad
     Dodd

[[Page 12654]]


     Dorgan
     Durbin
     Harkin
     Inouye
     Jeffords
     Kennedy
     Kerry
     Kohl
     Lautenberg
     Leahy
     Levin
     Lieberman
     McConnell
     Menendez
     Mikulski
     Murray
     Obama
     Pryor
     Reed
     Reid
     Salazar
     Sarbanes
     Schumer
     Wyden

                                NAYS--64

     Alexander
     Allard
     Allen
     Baucus
     Bayh
     Bond
     Brownback
     Bunning
     Burns
     Burr
     Chambliss
     Coburn
     Cochran
     Coleman
     Collins
     Cornyn
     Craig
     Crapo
     Dayton
     DeMint
     DeWine
     Dole
     Domenici
     Ensign
     Enzi
     Feingold
     Feinstein
     Frist
     Graham
     Grassley
     Gregg
     Hagel
     Hatch
     Hutchison
     Inhofe
     Isakson
     Johnson
     Kyl
     Landrieu
     Lincoln
     Lott
     Lugar
     Martinez
     McCain
     Murkowski
     Nelson (FL)
     Nelson (NE)
     Roberts
     Rockefeller
     Santorum
     Sessions
     Shelby
     Smith
     Snowe
     Specter
     Stabenow
     Stevens
     Sununu
     Talent
     Thomas
     Thune
     Vitter
     Voinovich
     Warner
  The amendment (No. 4543) was rejected.
  The PRESIDING OFFICER. The question is on the engrossment and third 
reading of the joint resolution.
  The joint resolution was ordered to be engrossed for a third reading 
and was read the third time.
  The PRESIDING OFFICER. The joint resolution having been read the 
third time, the question is, Shall the joint resolution, as amended, 
pass?
  Mr. HATCH. I ask for the yeas and nays.
  The PRESIDING OFFICER. Is there a sufficient second?
  There is a sufficient second. The clerk will call the roll.
  The assistant legislative clerk called the roll.
  The PRESIDING OFFICER. Are there any other Senators in the Chamber 
desiring to vote?
  The yeas and nays resulted--yeas 66, nays 34, as follows:

                      [Rollcall Vote No. 189 Leg.]

                                YEAS--66

     Alexander
     Allard
     Allen
     Baucus
     Bayh
     Bond
     Brownback
     Bunning
     Burns
     Burr
     Chambliss
     Coburn
     Cochran
     Coleman
     Collins
     Cornyn
     Craig
     Crapo
     Dayton
     DeMint
     DeWine
     Dole
     Domenici
     Ensign
     Enzi
     Feinstein
     Frist
     Graham
     Grassley
     Gregg
     Hagel
     Hatch
     Hutchison
     Inhofe
     Isakson
     Johnson
     Kyl
     Landrieu
     Lincoln
     Lott
     Lugar
     Martinez
     McCain
     Menendez
     Murkowski
     Nelson (FL)
     Nelson (NE)
     Reid
     Roberts
     Rockefeller
     Salazar
     Santorum
     Sessions
     Shelby
     Smith
     Snowe
     Specter
     Stabenow
     Stevens
     Sununu
     Talent
     Thomas
     Thune
     Vitter
     Voinovich
     Warner

                                NAYS--34

     Akaka
     Bennett
     Biden
     Bingaman
     Boxer
     Byrd
     Cantwell
     Carper
     Chafee
     Clinton
     Conrad
     Dodd
     Dorgan
     Durbin
     Feingold
     Harkin
     Inouye
     Jeffords
     Kennedy
     Kerry
     Kohl
     Lautenberg
     Leahy
     Levin
     Lieberman
     McConnell
     Mikulski
     Murray
     Obama
     Pryor
     Reed
     Sarbanes
     Schumer
     Wyden
  The PRESIDING OFFICER. On this vote, the yeas are 66, the nays are 
34. A quorum being present, two-thirds of the Senators voting not 
having voted in the affirmative, the joint resolution is rejected.
  The Senator from California.
  Mrs. BOXER. Mr. President, I would like to make a statement 
explaining my vote. I wonder if that is in order at this time.
  The PRESIDING OFFICER. Without objection, the Senator is recognized.
  Mrs. BOXER. Mr. President, I had tried to get time earlier in the 
day. Unfortunately, I was tied up in a markup. I want to express myself 
briefly on the constitutional amendment.
  I opposed it, even though clearly it was far more popular in the 
country to support it. I did so because of my love of our country, our 
Constitution, and our freedoms. The love of country runs deep in my 
veins, as I know it does in those of every Senator.
  My family came here in the early years of the 20th century to be safe 
from the Holocaust in Europe, the nightmare that took the lives of our 
relatives and so many innocent people. To my family and to me, America 
was not only a land of strength and courage but a land of compassion 
and acceptance. My father, who was a CPA, always said to me: Kiss the 
ground when you pay your taxes to America because you are helping to 
build our military, our schools, our roads, and our infrastructure.
  My mother said that being an American meant being free to live your 
dreams, and only in this country, she would say, in America, where she 
was brought as a baby by her family, would that be possible.
  I was taught not to be afraid of disagreement, not to fear words and 
not to shrink from an argument in this, the greatest country on Earth. 
In a great country like the United States of America, you don't fear 
dissent. In a great country you allow dissent, even if it is ugly, even 
if it makes you sick to your stomach, even if it disgusts you. We are 
so strong as a Nation that we know if someone takes one of our 
beautiful symbols and destroys it or burns it or spits on it or steps 
on it, that person will not win respect but will lose it. That person 
will not win friends but in fact will turn people away. That person 
will gain nothing for his cause but, in fact, will be ridiculed and 
marginalized.
  Now if a flag is burned or if a copy of the Bill of Rights or a copy 
of the Constitution is burned and that act is meant to incite others 
and it places people in danger, we should have laws to punish those who 
would endanger other lives. That is why I was proud to support the 
Bennett-Clinton-Durbin amendment, to do just that. I can certainly 
understand how seeing our flag burn would inflame passions and incite 
outrage. It does so in me.
  The flag to me is a symbol of something I hold near and dear to my 
heart--our democracy, our country, our history. And I am outraged when 
I think about someone treating the flag in a disrespectful manner. But 
I am also outraged when I see or hear about a group of people 
protesting at the funeral of a fallen soldier, saying things like 
``thank God for dead soldiers'' or ``God is America's terrorist.'' That 
is what is going on today at soldiers' funerals.
  Such despicable speech and disrupting the most sacred funerals of our 
heroes makes no sense to me, and I can't begin to imagine the emotions 
of the families of the soldiers who must endure these senseless 
protests at a time of such loss. My instinct is to haul these 
protesters away. My colleague, Senator Durbin, proposed an amendment 
that would prohibit these awful protests at all funerals for our fallen 
heroes, regardless of where the funerals take place, whether at a 
national or private cemetery, a funeral home or a house of worship. I 
was proud to support that amendment, and I was stunned to see how many 
of my colleagues turned away from it.
  I agree with the approach of Senator Durbin to the protests--
proposing a statutory solution to address a problem rather than 
unnecessarily amending our Constitution. There are many things in life 
that we find offensive, repugnant to beliefs that we hold dear, but we 
cannot amend the Constitution every time there is something we consider 
outrageous, offensive, or repugnant.
  We have only amended our Constitution 16 times after the Bill of 
Rights was passed in 1791--16 times over 214 years. But the Republican 
leadership has decided the best use of our precious little working time 
is to amend the Constitution--not amend it to guarantee equal rights 
for women, which still has not been done, not to amend it to allow 
limits on wealthy individuals buying Federal office--but for an issue 
which I believe we can address by statute, as I believe Senators 
Bennett and Clinton and Durbin did.
  Some have suggested that this constitutional amendment is necessary 
to honor our veterans. I think Senator Specter spoke eloquently on the 
point. I say, if we want to honor our veterans we should take care of 
our brave men and women in uniform who serve our Nation.
  For example, just last week my good friend from Maine, Senator Snowe, 
and I were able to get an amendment

[[Page 12655]]

agreed to by the Senate which would make all prisoners of war who die 
in captivity eligible for the Purple Heart. Also last week Senator 
Lieberman and I were able to get an amendment agreed to by the Senate 
improving the mental health screening and monitoring for members of our 
Armed Forces.
  I think we honor our veterans and Armed Forces when we make sure that 
we are looking out for them, keeping our promises to them. Right now we 
are not.
  We should provide them with all the equipment they need while they 
are deployed and all the health care they need when they come home.
  Let's make sure our men and women have adequate body armor. Let's 
find ways to expand health care coverage for the members of the Guard 
and Reserves. Let's make sure the Veterans Administration is adequately 
funded to meet the needs of our veterans at a time when we are seeing 
horrific post-traumatic stress: suicides are up, divorces are up. These 
are the ways we honor our veterans.
  We love the flag--yes. We love our veterans--yes. But I think we can 
do both without having to amend the Constitution.
  I believe the flag is a beautiful symbol of the freedom and liberty 
on which this proud Nation has been built. The flag is a reminder of 
the democracy we all hold so dear in our hearts. When I see the flag 
displayed in an inappropriate way--I think Senator Lautenberg showed 
it--on underwear or on pajamas, I don't think that is respectful. But 
that is what we see every day. I don't like it, but, you know what, 
this Constitution is more than an outlet for our justifiable 
frustrations. This Constitution is more than just an outlet for our 
justifiable frustrations.
  It is concise. It has worked. It is the enduring ideal of our Nation, 
and we should not unnecessarily amend it.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Ohio.
  Mr. DeWINE. Mr. President, seeing a number of my colleagues on the 
floor, and I have talked to them, I ask unanimous consent that the 
following Senators be able to speak in morning business as follows, in 
this order: Senator Salazar for 5 minutes, Senators Wyden and Smith for 
a total of 10 minutes, and Senator DeWine for 45 minutes.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The Senator from Colorado is recognized.
  Mr. SALAZAR. Mr. President, I rise to speak about the flag 
desecration amendment and talk about the nature of the debate we have 
seen in the Senate over the last 2 days. First, let me be clear. I 
support the amendment that came before the Senate today, and I just 
cast my vote for it. The American flag is a unique symbol of our 
heritage, our principles, and everything the citizens of this great 
country have done to sacrifice for it. I do not believe laws narrowly 
prohibiting the desecration of our flag in any way undercut the 
principles embedded in the first amendment.
  However, it is important to emphasize certain points as we debate 
these issues. First, as is often the case when we consider whether to 
amend the Constitution, this is not a simple question. It is not a 
question that is cut and dried.
  I understand the strong feelings of those who oppose this amendment. 
I understand their argument that the freedoms the American flag stands 
for, including the freedom of speech and expression, are as important 
as the flag itself. We must not separate the flag from the cherished 
principles that it represents.
  In keeping with that concept, I believe it is wrong for proponents of 
the flag desecration amendment to question the patriotism of those who 
oppose it. Simply because Senator Durbin, Senator McConnell, Senator 
Feingold, Senator Bennett, and others oppose this amendment does not 
mean they believe the flag should be desecrated, nor does it mean that 
they view the flag as any less important a symbol. As anyone who has 
worked with these Senators knows, nothing could be further from the 
truth.
  Finally, my support for this amendment is based on the premise that 
the flag is unique and deserves special protection. But for the same 
reason I believe the flag should be protected, I also firmly believe it 
should not be politicized for partisan gain. The American citizens who 
pledge allegiance to this flag, who believe in what it represents, and 
who live and work under it every day deserve better.
  I also believe that we should be working as a Congress and as a 
Senate just as hard to strengthen our national and homeland security, 
improve our energy security, relieve the health care crisis that faces 
America's businesses and America's families, educate our children, and 
strengthen the American family.
  I yield the remainder of my time and yield the floor.
  The PRESIDING OFFICER. The Senator from Oregon is recognized.

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