[Congressional Record (Bound Edition), Volume 159 (2013), Part 6]
[Senate]
[Pages 8860-8861]
[From the U.S. Government Publishing Office, www.gpo.gov]




          STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS

      By Mr. HATCH (for himself, Mr. Boozman, Mr. Burr, Mr. Coats, Mr. 
        Cochran, Ms. Collins, Mr. Cornyn, Mr. Crapo, Mr. Enzi, Mrs. 
        Fischer, Mr. Graham, Mr. Grassley, Mr. Heller, Mr. Johanns, Mr. 
        McCain, Ms. Murkowski, Mr. Risch, Mr. Roberts, Mr. Rubio, Mr. 
        Sessions, Mr. Thune, and Mr. Vitter):
  S.J. Res. 17. A joint resolution proposing an amendment to the 
Constitution of the United States authorizing Congress to prohibit the 
physical desecration of the flag of the United States; to the Committee 
on the Judiciary.
  Mr. HATCH. Mr. President, tomorrow is Flag Day and I am proud to be 
joined by 21 of my colleagues in introducing an amendment to the 
Constitution giving Congress power to prohibit the physical desecration 
of the flag of the United States. At a time when many issues divide us, 
the flag to which we pledge allegiance ought to be one thing that 
unites us.
  On this day in 1777, the Continental Congress adopted a resolution 
designating the design of the flag of the United States. President 
Woodrow Wilson first issued a proclamation in 1916 officially 
establishing June 14 as Flag Day and Congress did so by statute in 
1949.
  States began adopting laws protecting the American flag in the late 
19th century and every state had adopted such a law by 1932. Congress 
adopted the Federal Flag Code in 1942 providing uniform guidelines for 
displaying the flag and in 1968 enacted the Federal Flag Protection 
Act.
  We have, as they say, come a long way--but not in a good direction. 
Gregory Johnson, a member of the Revolutionary Communist Party, was 
prosecuted under State law for torching an American flag at the 1984 
Republican National Convention in Dallas. Five years later, in Texas v. 
Johnson, the U.S. Supreme Court held that the State flag protection law 
violated the First Amendment. Congress quickly revised the Flag 
Protection Act but in United States v. Eichman, the Supreme Court held 
in 1990 that it too violated the First Amendment.
  I believe these two cases, decided by the narrowest 5-4 margins, were 
based on an incorrect interpretation of the First Amendment. But I also 
believe that the Constitution belongs to the American people, not to 
Federal judges.
  The Constitution embodies the will of the American people in setting 
rules for government. The Constitution defines what the federal 
government may do by enumerating its powers in the body of the 
Constitution. It defines what government may not do by identifying 
individual rights in the amendments to the Constitution.
  The Supreme Court has had its say, concluding that neither States nor 
the Federal Government may prohibit desecration of the American flag. 
But the Supreme Court does not have the

[[Page 8861]]

last word about what the Constitution says or what the Constitution 
means. The American people do. They alone have authority to change the 
Constitution's rules for government.
  This is why I first introduced a flag protection constitutional 
amendment on June 22, 1989, just one day after the Supreme Court's 
decision in Texas v. Johnson. The American people can decide whether to 
change their Constitution only when an amendment is proposed and sent 
to the States for ratification. The American people should have that 
opportunity regarding protection of this unique symbol of national 
unity.
  Today is the ninth time I have introduced a flag protection 
amendment. The Senate has voted five times on such proposals, including 
three of mine. The bipartisan support has grown each time--from 51 
votes in 1989, 58 votes in 1990, 63 votes in 1995 and 2000, and 66 
votes in 2006, just one short of the \2/3\ required by the 
Constitution.
  Members of Congress must keep two things in mind. First, even if it 
is ratified, this amendment would not prohibit flag desecration. It 
would merely give Congress authority to do so. Remember what the 
Supreme Court did in its pair of decisions. The court did not say 
government should not protect the flag, but said that government may 
not do so. This amendment would restore that authority. I believe that 
a vigorous and public debate about our shared values and principles and 
about the flag as a unique symbol of national unity would be very 
healthy for America. We can have that debate only when the Constitution 
allows it and with this amendment the Constitution would.
  Second, members of Congress must remember our role in the 
constitutional amendment process. Congress cannot amend the 
Constitution. We can propose amendments, but the Constitution is not 
changed until \3/4\ of the States say so. Congress should not deprive 
the American people of the opportunity to express their will on this 
important issue.
  The American people want that opportunity. All 50 State legislatures 
have indicated their support for a constitutional amendment to allow 
protection of the flag.
  Just a few days ago, President Obama issued the annual proclamation 
designating this week as National Flag Week and designating today as 
Flag Day. He urged all Americans to observe these ``with pride and all 
due ceremony . . . as a time to honor America, to celebrate our 
heritage in public gatherings and activities, and to publicly recite 
the Pledge of Allegiance to the Flag of the United States of America.'' 
I believe that we can make that ongoing observance and celebration 
complete by restoring authority to protect this symbol of national 
unity.

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