[Senate Report 104-148]
[From the U.S. Government Publishing Office]
Calendar No. 195
104th Congress Report
SENATE
1st Session 104-148
_______________________________________________________________________
SENATE JOINT RESOLUTION 31
_______
September 27 (legislative day, September 25), 1995.--Ordered to be
printed
_______________________________________________________________________
Mr. Hatch, from the Committee on the Judiciary, submitted the following
R E P O R T
together with
ADDITIONAL, SUPPLEMENTAL, AND MINORITY VIEWS
[To accompany S.J. Res. 31]
The Committee on the Judiciary, to which was referred the
Senate Joint Resolution (S.J. Res. 31) to propose an amendment
to the Constitution so that Congress and the States shall have
power to prohibit the physical desecration of the flag of the
United States, having considered the same, reports favorably
thereon, and recommends that the joint resolution do pass.
CONTENTS
Page
I. Summary..........................................................2
II. Legislative history..............................................3
III. Discussion.......................................................5
A. The flag is a unique symbol of a diverse country.... 5
1. Brief history of the American flag.............. 5
2. Congress, the States, and the flag.............. 7
B. The place of the flag in the hearts and minds of the
American people.................................... 8
C. Need for an amendment............................... 20
D. S.J. Res. 31 is a suitable amendment to the
Constitution....................................... 25
1. S.J. Res. 31 will effectively restore power to
Congress and the States denied them in Texas v.
Johnson and U.S. v. Eichman; S.J. Res. 31 does
not ``trump'' the first amendment or any other
constitutional provision....................... 25
a. S.J. Res. 31 will effectively empower
Congress and the States to enact statutes
prohibiting the physical desecration of the
American flag.............................. 26
b. S.J. Res. 31 does not amend the first
amendment or ``trump'' any other
constitutional provision................... 26
2. The terms ``physical desecration'' and ``flag of
the United States'' are precise enough for
inclusion in the Constitution.................. 30
3. The flag protection amendment is no precedent
whatsoever for any other constitutional
amendment or statute........................... 33
4. The American flag deserves legal protection
regardless of the number of flag desecrations
in recent years................................ 36
5. A so-called ``content neutral'' constitutional
amendment is wholly inappropriate.............. 37
6. Granting States, as well as Congress, power to
protect the flag reflects the constitutional
principle of federalism and returns us to the
status quo ante 1989........................... 41
IV. Vote of the committee...........................................42
V. Text of S.J. Res. 31............................................43
VI. Cost estimate...................................................43
VII. Regulatory impact statement.....................................44
VIII.Additional views of Mr. Hatch...................................45
IX. Additional views of Mr. Thurmond................................49
X. Supplemental views of Mrs. Feinstein............................51
XI. Minority views of Mr. Biden.....................................55
XII. Additional minority views of Messrs. Kennedy, Leahy, Simon, and
Feingold........................................................64
XIII.Supplemental minority views of Mr. Kohl.........................81
I. Summary
The purpose of Senate Joint Resolution 31 is to restore to
Congress and to the States the authority to adopt statutes
protecting the flag of the United States from physical
desecration. It reads simply: ``The Congress and the States
shall have power to prohibit the physical desecration of the
flag of the United States.''
The American people revere the flag of the United States as
the unique symbol of our Nation and the freedom we enjoy as
Americans. As Supreme Court Justice John Paul Stevens said in
his dissent in Texas v. Johnson:
[A] country's flag is a symbol of more than
``nationhood and national unity.'' It also signifies
the ideas that characterize the society that has chosen
that emblem as well as the special history that has
animated the growth and power of those ideas. * * * So
it is with the American flag. It is more than a proud
symbol of the courage, the determination, and the gifts
of a nation that transformed 13 fledgling colonies into
a world power. It is a symbol of freedom, of equal
opportunity, of religious tolerance, and of goodwill
for other peoples who share our aspirations.
(491 U.S. at 437 (dissenting).)
The American flag represents, in a way nothing else can,
the common bond shared by the people of this Nation, one of the
most heterogeneous and diverse in the world. Whatever our
differences of party, politics, philosophy, race, religion,
ethnic background, economic status, social status, or
geographic region, we are united as Americans. That unity is
symbolized by a unique emblem, the American flag. As the
visible embodiment of our Nation and its principles, values,
and ideals, the American flag has come to symbolize hope,
opportunity, justice, and freedom, not just to the people of
this Nation, but to people all over the world.
When an identical amendment was defeated in Congress in
1990, in the aftermath of two Supreme Court decisions
nullifying statutory protections of the flag, veterans,
patriotic, and other civic organizations, together with
individual citizens from all walks of life, initiated a
grassroots movement to regain legal protection of the flag. In
short, the American people have revived this constitutional
amendment.
The effort to enact S.J. Res. 31 is wholly bipartisan. The
effort is led by Congressmen Gerald Solomon (R-N.Y.) and G.V.
``Sonny'' Montgomery (D-Miss.) in the House of Representatives.
Senators Orrin G. Hatch (R-Utah) and Howell Heflin (D-Ala.) are
the principal sponsors in the Senate.
For the reasons set forth in this report, the Judiciary
Committee reported S.J. Res. 31 to the full Senate with a
favorable recommendation, and urges that it be adopted.
II. Legislative History
On June 21, 1989, the U.S. Supreme Court issued its
decision in the case of Texas v. Johnson, 491 U.S. 397 (1989).
Gregory Johnson had been convicted of violating a Texas statute
for knowingly desecrating an American flag. Johnson had burned
an American flag at a political demonstration outside Dallas
City Hall during the 1984 Republican National Convention in
Dallas. Mr. Johnson's conviction was reversed by the Texas
Court of Criminal Appeals (Johnson v. State, 755 S.W.2d 92
(1988)). In a 5-to-4 decision, the U.S. Supreme Court affirmed
the reversal, holding that Johnson's burning of the flag was
expressive conduct, a form of symbolic speech protected by the
first amendment.
Following the Supreme Court's decision in Texas v. Johnson,
on July 18, 1989, Senators Dole, Dixon, Thurmond, and Heflin,
as principal cosponsors, introduced Senate Joint Resolution
180, a proposed amendment to the U.S. Constitution, which would
give Congress and the States power to prohibit the physical
desecration of the flag of the United States. On July 18, 1989,
Senators Biden, Roth, and Cohen, as principal cosponsors,
introduced S. 1338 (The Biden-Roth-Cohen Flag Protection Act of
1989), which proposed to amend the Federal flag desecration
statute, 18 U.S.C. 700(a).\1\ The Judiciary Committee held 4
days of hearings, August 1, August 14, September 13, and
September 14, 1989, on the proposed legislation and
constitutional amendment. Approximately 20 hours of testimony
was received from 26 witnesses, including a broad range of
constitutional scholars, constitutional historians,
representatives of veterans' organizations and individual
veterans, Members of the Senate, and from the Department of
Justice. On September 21, 1989, the Judiciary Committee
approved S. 1338 and ordered the bill favorably reported.
\1\ This statute provided that ``[W]hoever knowingly casts contempt
upon any flag of the United States by publicly mutilating, defacing,
defiling, burning, or trampling upon it shall be fined not more that
$1,000 or imprisoned for not more than one year, or both.''
---------------------------------------------------------------------------
On September 12, 1989, the House of Representatives passed
H.R. 2978 (The Flag Protection Act of 1989), which also sought
to amend 18 U.S.C. 700(a) to protect the physical integrity of
the flag of the United States and was similar to S. 1338.
The Senate passed H.R. 2978 on October 5, 1989, and it
became law on October 28, 1989. Under this statute, codified at
18 U.S.C. 700(a):
(W)hoever knowingly mutilates, defaces, physically
defiles, burns, maintains on the floor or ground or
tramples upon any flag of the United States shall be
fined under this Title or imprisoned for not more than
one year, or both.
An exception was made for ``conduct consisting of the
disposal of a flag when it has become worn or soiled.''
On October 19, 1989, S.J. Res. 180, the proposed
constitutional amendment, failed to obtain the necessary two-
thirds vote of the full Senate, by vote of 51 to 48.
On June 11, 1990, the Supreme Court, in United States v.
Eichman, 495 U.S. 928 (1990), a consolidated appeal of cases
involving individuals who knowingly set fire to several U.S.
flags on the steps of the U.S. Capitol while protesting
American foreign policy, and other individuals who knowingly
burned a U.S. flag in Seattle while protesting passage of the
1989 Flag Protection Act, held that the 1989 act, like the
Texas statute struck down in Texas v. Johnson, violated the
first amendment.
The Senate Judiciary Committee held a hearing on June 21,
1990, considering measures to protect the American flag, and
heard from eight witnesses, including from the Justice
Department.
Following the Supreme Court's decision in United States v.
Eichman, a proposed amendment to the U.S. Constitution, which
would give Congress and the States power to prohibit the
physical desecration of the flag of the United States, was
again introduced (Senate Joint Resolution 332). On June 26,
1990, the proposed amendment failed to receive the necessary
two-thirds vote of the full Senate, by vote of 58 to 42.
On March 21, 1995, Senators Hatch and Heflin, as principal
cosponsors, along with a bipartisan group of 45 additional
cosponsors, introduced Senate Joint Resolution 31, a proposed
amendment to the U.S. Constitution, which reads: ``The Congress
and the States shall have power to prohibit the physical
desecration of the flag of the United States.''
This is the same language of the amendments voted upon in
1989 and 1990. It presently has a total of 56 sponsors.
A hearing on S.J. Res. 31 was held by the Judiciary
Committee Subcommittee on the Constitution, Federalism, and
Property Rights on June 6, 1995. The subcommittee heard
testimony from Senator Robert Kerrey; Walter Dellinger,
Assistant Attorney General, Office of Legal Counsel, Department
of Justice; William Detweiler, national commander, The American
Legion; Rose Lee, Washington representative, Gold Star Wives of
America; Joseph Pinon, assistant city manager, city of Miami
Beach; Prof. Stephen B. Presser of Northwestern University Law
School; Charles J. Cooper, former Assistant Attorney General,
Office of Legal Counsel, Department of Justice; Prof. Richard
D. Parker of Harvard Law School; Gene R. Nichol, dean of the
University of Colorado Law School; Bruce Fein, attorney; and
Prof. Cass R. Sunstein of the University of Chicago Law School.
On July 20, 1995, the committee voted 12 to 6 to report
favorably S.J. Res. 31. The House of Representatives voted 312
to 120 in favor of an identical resolution on June 28, 1995.
III. Discussion
a.--the flag is a unique symbol of a diverse country
1. Brief history of the American flag
Before the Continental Congress adopted a flag for the
United States, flags of different designs were used in the
colonies. For example, Pine Tree flags were popular in the New
England colonies; the pine tree was regarded as symbolizing the
hardiness of New Englanders. One such flag is widely believed
to have been carried by American troops on June 17, 1775, at
the Battle of Bunker Hill. Known as the Bunker Hill Flag, its
design had a blue field with a white canton bearing the red
cross of St. George and a green pine tree. American naval
vessels off of New England sometimes used a flag with a white
field with a pine tree at its center and the words ``An Appeal
to Heaven'' emblazoned across the bottom.
The Moultrie Liberty Flag is believed to be the first
distinctive flag of the American Revolution displayed in the
South, in 1775. It had a blue field and a white crescent in an
upper corner. Later, the word ``Liberty'' was added.
Colonel Christopher Gadsen of South Carolina designed one
of the various rattlesnake flags in 1775. It consisted of a
yellow field with a coiled rattlesnake in the center, under
which the words ``Don't Tread on Me'' were written.
On January 1, 1776, George Washington, then commander-in-
chief of the Continental Army, ordered the raising of a flag
with 13 alternating red and white stripes and the Union Jack in
the canton at Prospect Hill, near Cambridge, MA. This flag was
known as the Grand Union Flag. Inclusion of the Union Jack,
however, did not prove popular, especially after the signing of
the Declaration of Independence.
One story has it that in the spring of 1776, Robert Morris,
financier and patriot organizer, Col. George Ross of Delaware,
and Gen. George Washington visited Mrs. Betsy Ross in her
upholstery shop on Arch Street in Philadelphia. Her husband had
died in a gunpowder explosion a few months earlier, after
joining the Pennsylvania militia. They showed her a design of a
flag on a piece of paper. After suggesting the stars have five
rather than six points, she shortly produced a flag said to be
the first ``national'' flag. This story was not made public
until 1870, when her grandson read a paper to the Historical
Society of Pennsylvania. Affidavits from some of her daughters,
nieces, and grandchildren assert that she recounted the story
to them many times before her death in 1836.
On June 14, 1777, the Marine Committee of the Second
Continental Congress adopted a resolution which read:
Resolved, that the flag of the United States be
thirteen stripes, alternate red and white; that the
union be thirteen stars, white in a blue field
representing a new constellation.
Arranging the stars in a circular pattern was popular,
although the congressional resolution did not specify this
detail. Indeed, one of the earliest known appearances of a flag
reflecting to some degree this new constellation, occurred 2
months later at the Battle of Bennington. There, Lt. Col.
Friedrich Baum commanded a unit of Hessian dragoons attached to
the ill-fated army of British Gen. Johnny Burgoyne. The
Hessians collided with troops under Gen. John Stark along the
Walloomsac River in Vermont. On August 16, 1777, General Stark
reportedly rallied his troops:
My men, yonder are the Hessians. They were bought for
seven pounds and ten pence a man. Are you worth more?
Prove it. Tonight, the American flag floats from yonder
hill, or Molly Stark sleeps a widow!
The Americans triumphed. This battle flag has 1 star in
both upper corners of the blue canton, with 11 stars arranged
in a semicircle over the numerals ``76.'' The red and white
stripes are in reverse order--seven white and six red stripes.
The Nation's flag was first honored by a foreign nation in
February, 1778, when the French Royal Navy exchanged 13 gun
salutes with Capt. John Paul Jones' Ranger. It is believed that
Captain Jones' Ranger displayed the Stars and Stripes for the
first time in the fledgling American Navy on July 2, 1777.
In 1791 Vermont was admitted to the Union, followed the
next year by Kentucky. To address these additions to the Union,
Congress adopted a new measure, in 1794, effective May 1, 1795,
expanding the flag to 15 stars and 15 stripes, one for each
State. The circular pattern of the stars was abandoned. This
new flag flew as the official flag of our country from 1794 to
1818. Francis Scott Key wrote the ``Star Spangled Banner'' in
honor of this flag in 1814.
By 1818, five additional States--Tennessee, Ohio,
Louisiana, Indiana, and Mississippi--had entered the Union.
Realizing that the flag would become too unwieldy if a stripe
were added for each new State, it was suggested that the
stripes return to 13 in number to represent the original
thirteen colonies, and that a star be added to the blue field
for each new State admitted to the Union.
On April 14, 1818, President Monroe signed into law a bill
providing ``that the flag of the United States be 13 horizontal
stripes, alternate red and white; that the union have 20 stars,
white in a field of blue,'' and that upon admission of each new
State into the Union one star be added to the union of the flag
on the Fourth of July following its date of admission. Thus
marked the beginning of the most detailed legislative provision
for the design of the national symbol.
The nickname ``Old Glory'' is said to have been given the
flag by Capt. William Driver. Captain Driver first sailed as a
cabin boy at age 14, from his home town of Salem, MA. After
several more voyages, he became master of a 110-ton brig, the
Charles Doggett, at age 21.
His mother and other women of Salem made an American flag
of cotton, 12 feet by 24 feet in size, as a birthday and
farewell gift. They presented it to him during the outfitting
of his ship. As the breeze unfurled the flag, and he was asked
by its makers what he thought of the flag, he said, ``God bless
you, I'll call it Old Glory.''
Driver took this flag with him whenever he went to sea. He
retired form sea duty in 1837 and settled in Nashville, TN,
where he displayed the flag.
By the time of the Civil War, everyone in and around
Nashville recognized Captain Driver's ``Old Glory.'' Possession
of any Union flag deep in Confederate territory meant real
danger. And the Confederates were determined to find and
destroy Driver's flag, but repeated searches revealed no trace
of Driver's cherished banner.
It wasn't until February 25, 1862, when Union forces
captured Nashville and raised a small American flag over the
capitol, that ``Old Glory'' reappeared. Accompanied by Union
soldiers, Captain Driver returned to his home and began
unstitching his bedcover. Inside rested the original ``Old
Glory,'' where Driver had safely hidden it during the desperate
days of war.
Gathering up the flag, Captain Driver, with soldiers of the
Sixth Ohio Regiment, returned to the capitol of Nashville, and
replaced the small flag which fluttered there with his ``Old
Glory.''
2. Congress, the States, and the flag
Congress has, over the years, reflected the devotion our
diverse people have for Old Glory. During the Civil War, for
example, Congress awarded the Medal of Honor to Union soldiers
who rescued the flag from falling into Confederate hands.
In 1931, Congress declared the Star Spangled Banner to be
our national anthem. In 1949, Congress established June 14 as
Flag Day. Congress has established ``The Pledge of Allegiance
to the Flag'' and the manner of its recitation. Congress
designated John Philip Sousa's ``The Stars and Stripes
Forever'' as the national march in 1987.
Congress has not only established the design of the flag (4
U.S.C. 1 and 2), but also the manner of its proper display in
the Flag Code (36 U.S.C 173-179). The Flag Code itself is
hortatory; it is not legally enforceable.
Congress, along with 48 States, had regulated physical
misuse of the American flag until the Supreme Court's 1989
decision in Texas v. Johnson. Indeed, some of these laws
originated nearly a century ago.
In 1968, Congress enacted a nationwide flag desecration
statute, codified at 18 U.S.C. 700(a). To avoid infringing upon
freedom of speech, Congress limited the 1968 flag statute to
acts of physical desecration, and omitted language contained in
the 1917 law it had enacted applicable to the District of
Columbia which made it a crime to ``defy'' or ``cast contempt *
* * by word or act'' upon the American flag (emphasis
supplied). The 1968 statute provided for a fine of not more
than $1,000 or imprisonment for not more than 1 year, for
anyone who ``knowingly casts contempt upon any flag of the
United States by publicly mutilating, defacing, defiling,
burning or trampling upon it * * *.''
These congressional and State actions reflect the people's
devotion to the flag; Congress and the States did not create
these feelings and deep regard for the flag among our people.
b.--the place of the flag in the hearts and minds of the american
people
The committee recognizes that members of the Senate need no
words from it to explain the special bond between the American
people and their beloved flag as a unique symbol of their
aspirations to national unity, and the principles, values,
ideals, and history of their country. Still, because that bond
is the basis for S.J. Res. 31, the voices of the American
people in expressing their reverence for their flag are
properly heard in this report, voices which echo down the
generations of our history.
Richard Reeves, in a July 4, 1995, column in The Sun
entitled, ``A Fourth of July on the Oregon Trail,'' quoted from
the diary of Enoch Conyers. Conyers was part of a wagon train
pausing in Wyoming on the Oregon Trail, heading west, in 1852.
These are excerpts from his diary:
July 3--Several of the boys started out this morning
for a hunt in the mountains for the purpose of
obtaining some fresh meat, if possible, for our Fourth
of July dinner. Those who remain in camp are helping
the ladies in preparing the banquet. A number of wagon
beds are being taken to pieces and formed into long
tables.
A little further on is a group of young ladies seated
on the grass talking over the problem of manufacturing
``Old Glory'' to wave over our festivities. One lady
brought forth a sheet. This gave the ladies an idea.
Quick as thought, another brought a skirt for the red
stripes. Another lady ran to her tent and brought forth
a blue jacket, saying: ``Here, take this, it will do
for the field. * * *''
July 4--The day was ushered in with the booming of
small arms, which was the best that we could do under
the circumstances, so far away from civilization. Just
before the sun made its appearance above the eastern
horizon, we raised our 40-foot flagstaff with ``Old
Glory''' nailed fast to the top. * * * Our company
circled around the old flag and sang ``The Star
Spangled Banner.'' Then three rousing cheers and a
tiger were given to ``Old Glory * * *''.
The diary excerpts reflect not only the use of the flag's
nickname before the Civil War, but also the popularity of ``The
Star Spangled Banner'' nearly four decades after its
composition by Francis Scott Key.
Henry Ward Beecher gave an address entitled, ``The National
Flag,'' in May 1861. These are excerpts:
A thoughtful mind, when it sees a nation's flag, sees
not the flag, 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, that belong to the nation that sets it forth *
* * When the united crosses of St. Andrew and St.
George, on a fiery ground, set forth the banner of old
England, we see not the cloth merely; there rises up
before the mind the idea of that great monarchy.
``This nation has a banner, too, and * * * wherever
it [has] streamed abroad men saw day break bursting on
their eyes. For * * * the American flag has been a
symbol of Liberty, and men rejoiced in it * * *
* * * * *
If one, then, asks me the meaning of our flag, I say
to him, it means just what Concord and Lexington meant,
what Bunker Hill meant; it means the whole glorious
Revolutionary War, which was, in short, the rising up
of a valiant young people against an old tyranny, to
establish the most momentous doctrine that the world
had ever known, or has since known,--the right of men
to their own selves and to their liberties.
In solemn conclave our fathers had issued to the
world that glorious manifesto, the Declaration of
Independence. A little later, that the fundamental
principles of liberty might have the best organization,
they gave to this land our imperishable Constitution.
Our flag means, then, all that our fathers meant in the
Revolutionary War; all that the Declaration of
Independence meant; it means all that the Constitution
of our people, organizing for justice, for liberty, and
for happiness, meant. Our flag carries American ideas,
American history and American feelings. Beginning with
the colonies, and coming down to our time in its sacred
heraldry, in its glorious insignia, it has gathered and
stored chiefly this supreme idea: Divine right of
liberty in man. Every color means liberty; every thread
means liberty; every form of star and beam or stripe of
light means liberty; not lawlessness, not license; but
organized institutional liberty,--liberty through law,
and laws for liberty!
Justice Oliver Wendell Holmes, in a book on John Marshall,
wrote:
The flag is but a bit of bunting to one who insists
on prose. Yet, thanks to Marshall and the men of his
generation--and for this above all we celebrate him and
them--its red is our lifeblood, its stars our world,
its blue our heaven. It owns our land. At will it
throws away our lives.
(Holmes, John Marshall (1901), in Collected Legal Papers 266,
270-71 (1920).)
Henry Holcomb Bennett, born in Chillicothe, OH, in 1863,
engaged in ornithology, book illustration, and writing short
stories about Army life. In 1904, he published, ``The Flag Goes
By:''
Hats off!
Along the street there comes
A blare of bugles, a ruffle of drums,
A flash of color beneath the sky:
Hats off!
The flag is passing by!
Blue and crimson and white it shines,
Over the steel-tipped, ordered lines.
Hats off!
The colors before us fly;
But more than the flag is passing by.
Sea-fights and land-fights, grim and great,
Fought to make and to save the State:
Weary marches and sinking ships;
Cheers of victory on dying lips;
Days of plenty and years of peace;
March of a strong land's swift increase;
Equal justice, right, and law,
Stately honor and reverend awe;
Sign of a nation, great and strong
To ward her people from foreign wrong:
Pride and glory and honor,--all
Live in the colors to stand or fall.
Hats off!
Along the street there comes
A blare of bugles, a ruffle of drums;
And loyal hearts are beating high:
Hats off!
The flag is passing by!
In 1907, George M. Cohan introduced the song, ``You're a
Grand Old Flag,'' neatly summarizing the outlook of millions of
Americans.
Elias Lieberman left czarist Russia when he was 8 years of
age. Educated in New York City public schools and colleges, he
became an English teacher, poet, and magazine editor. His poem,
``I Am an American,'' appearing in ``Everybody's Weekly'' in
July 1916, is a reminder of the fierce patriotism of millions
of immigrants to our country, and the meaning of the flag to
them:
i am an american
I am an American.
My father belongs to the Sons of the Revolution;
My mother, to the Colonial Dames.
One of my ancestors pitched tea overboard in Boston
Harbor;
Another stood his ground with Warren;
Another hungered with Washington at Valley Forge.
My forefathers were America in the making:
They spoke in her council halls;
They died on her battle-fields;
They commanded her ships;
They cleared her forests.
Dawns reddened and paled.
Staunch hearts of mine beat fast at each new star
In the nation's flag.
Keen eyes of mine foresaw her greater glory:
The sweep of her seas,
The plenty of her plains,
The man-hives in her billion-wired cities.
Every drop of blood in me holds a heritage of
patriotism.
I am proud of my past.
I am an American.
I am an American.
My father was an atom of dust,
My mother a straw in the wind,
To His Serene Majesty.
One of my ancestors died in the mines of Siberia;
Another was crippled for life by twenty blows of the
knout;
Another was killed defending his home during the
massacres.
The history of my ancestors is a trail of blood
To the palace-gate of the Great White Czar.
But then the dream came--
The dream of America.
In the light of the Liberty torch
The atom of dust became a man
And the straw in the wind became a woman
For the first time.
``See,'' said my father, pointing to the flag that
fluttered near,
``That flag of stars and stripes is yours;
It is the emblem of the promised land.
It means, my son, the hope of humanity.
Live for it * * * die for it!''
Under the open sky of my new country I swore to do so;
And every drop of blood in me will keep that vow.
I am proud of my future.
I am an American.
The identification of the flag with the Nation and its
ideals is also reflected in a WWI era poem by Henry van Dyke:
america's welcome home
Oh, gallantly they fared forth in khaki and in blue,
America's crusading host of warriors bold and true;
They battled for the right of men beside our brave
Allies.
And now they're coming home to us with glory in their
eyes.
Oh it's home again, America for me!
Our hearts are turning home again and there we long to
be,
In our beautiful big country beyond the ocean bars,
Where the air is full of sunlight and the flag is full
of stars.
They bore our country's great word across the rolling
sea,
``America swears brotherhood with all the just and
free.''
They wrote that word victorious on fields of mortal
strife,
And many a valiant lad was proud to seal it with his
life.
Oh, welcome home in Heaven's peace, dear spirits of the
dead!
And welcome home ye living sons America hath bred!
The lords of war are beaten down, your glorious task is
done;
You fought to make the whole world free, and the
victory is won.
Now it's home again, and home again, our hearts are
turning west,
Of all the lands beneath the sun America is best.
We're going home to our own folks, beyond the ocean
bars,
Where the air is full of sunlight and the flag is full
of stars.
During World War II, American Marines engaged in fierce
combat against Japanese forces on Iwo Jima. The Marines' ascent
up Mount Suribachi cost nearly 6,000 American lives. One of the
most famous scenes of the war, captured on film and
memorialized at the Iwo Jima Memorial in Arlington, VA,
occurred when Marines raised the American flag at the top of
Mount Suribachi.
The 1989 Texas v. Johnson decision striking down flag
desecration statutes triggered another outpouring of expression
on the meaning of the flag, starting with the dissenters in
that case:
The ideas of liberty and equality have been an
irresistible force in motivating leaders like Patrick
Henry, Susan B. Anthony, and Abraham Lincoln,
schoolteachers like Nathan Hale and Booker T.
Washington, the Philippine Scouts who fought at Bataan,
and the soldiers who scaled the bluff at Omaha Beach.
If those ideas are worth fighting for--and our history
demonstrates that they are--it cannot be true that the
flag that uniquely symbolizes their power is not itself
worthy of protection from unnecessary desecration.
Justice John Paul Stevens (Texas v. Johnson, 491 U.S. at 439
(1989) (dissent)).
``Millions and millions of Americans regard [the American
Flag] with an almost mystical reverence regardless of what sort
of social, political, or philosophical beliefs they may have.''
Chief Justice William H. Rehnquist (Texas v. Johnson, 491 U.S.
at 429 (1989) (dissent)).
Following the Texas v. Johnson decision, Americans rallied
in support of the protection of the flag. A number of witnesses
testified at the Judiciary Committee hearings following the
Johnson decision. As John F. Heilman, national legislative
director of the Disabled American Veterans, said when he
testified at the hearings:
The American flag--``Old Glory''--is our national
ensign, a proud and courageous symbol of our Nation's
precious heritage. As such, it has been carried and
defended in battle, revered and cherished by its
citizens and viewed as a beacon of hope and freedom by
people throughout the world.
(Written statement of John F. Heilman, Sept. 13, 1989, at 1.)
As R. Jack Powell, executive director of the Paralyzed
Veterans of America, forcefully articulated:
The twenty-eighth President of the United States,
Woodrow Wilson, in an address on June 14, 1915 (Flag
Day) said:
* * * The flag is the embodiment not of sentiment but
of history. It represents the experiences made by men
and women * * * who * * * live under that flag.
The members of Paralyzed Veterans of America, all of
whom have incurred catastrophic spinal cord injury or
dysfunction, have shared the ultimate experience of
citizenship under the flag: serving in defense of our
Nation. The flag, for us, embodies that service and
that sacrifice as a symbol of all the freedoms we
cherish, including the First Amendment right of free
speech and expression. Curiously, the Supreme Court in
rendering its decision could not clearly ascertain how
to determine whether the flag was a ``symbol'' that was
``sufficiently special to warrant * * * unique
status.'' In our opinion and from our experience, there
is no question as to the unique status and singular
position the flag holds as the symbol of freedom, our
Constitution and our Nation. As such it must be
defended and provided special protection under the law.
* * * * *
I am concerned that there is some impression, at
least in the media and by some others that are around,
that the idea of supporting the flag is some idea just
of right-wing conservatives, and I have heard some
Senators say, ``Those veteran organizations,'' and that
kind of thing.
In fact, the flag is the symbol of a constitution
that allows Mr. Johnson to express his opinion. So, to
destroy that symbol is again a step to destroy the idea
that there is one nation on earth that allows their
people to express their opinions, whether they happen
to be socialist opinions or neo-Nazi opinions, or
democratic opinions or republican opinions.
Certainly, the idea of society is the banding
together of individuals for the mutual protection of
each individual. That includes, also, an idea that we
have somehow lost in this country, and that is the
reciprocal, willing giving up of unlimited individual
freedom so that society can be cohesive and can work.
It would seem that those who want most to talk about
freedom ought to recognize the right of a society to
say that there is a symbol, one symbol, which in
standing for this great freedom for everyone of
different opinions, different persuasions, different
religions, and different backgrounds, society puts
beyond the pale to trample with.
(Testimony of R. Jack Powell, Sept. 13, 1989, at 432-437.)
Walter G. Hogan, then commander in chief of the Veterans of
Foreign Wars of the United States testified on September 13,
1989:
Mr. Chairman, upon hearing of the Supreme Court
decision [in Texas v. Johnson], our reaction went from
one of disbelief to shock then to outrage.
While our members served overseas, the American flag
was the one single symbol that was a constant reminder
and link to our Nation and to our home. For this
reason, members of the Veterans of Foreign Wars today
still hold a very special allegiance to the flag borne
out of their service and sacrifice to this great
Nation.
(Testimony of Walter G. Hogan, September 13, 1989, at 427.)
H.F. ``Sparky'' Gierke, a former national commander of the
American Legion and Justice on the North Dakota Supreme Court,
testified the same day:
You don't have to be a veteran to understand what the
American flag means, nor do you have to be a super
patriot to understand that the symbols of our freedom
deserve to be protected.
Tens of thousands of brave, selfless American men and
women have died to protect our flag from desecration at
the hand of our enemy. We have a sacred obligation to
ensure that their flag will not now be desecrated by
those whom they died to protect.
We stand on a slippery slope, indeed, if we as a
nation are not sufficiently offended by the desecration
of our flag to be moved to action * * *
(Testimony of H.F. Gierke, September 13, 1995, at 407.)
Gary Freeman, a Vietnam veteran, from Hutchinson, Kansas
testified to his efforts to collect signatures on a petition
calling for a constitutional amendment on the flag:
As you know, I am not a constitutional scholar. I am
not a legal expert. I am a husband and father, and
someone who works hard every day to earn a living as a
treatment plant operator in South Hutchinson. I am also
a man who loves his country, a man who spent 2 years
fighting for America in Vietnam, and an American who
feels very deeply about our Nation's flag and about the
principles that the flag has come to represent.
* * * * *
[M]y experience in Vietnam reaffirmed what I already
knew, that we in America are indeed blessed, blessed
with many material possessions, and blessed with a
Constitution that safeguards our precious freedoms.
That is why I, and so many other veterans, were
outraged when the Supreme Court said that our flag can
be burned, that it can be desecrated by anyone at any
time, that it can be thrown away like some old washrag.
With all due respect to the Court, I think I and
millions of other Americans know better. I know that
the flag has followed every American regiment, every
American battalion, and every American platoon into
battle. I know that the flag rests respectfully on the
caskets of our dead soldiers. And I know that the flag
is given to the spouses of our deceased veterans, many
of whose names appear on the Vietnam Veterans Memorial
right here in Washington. The names of some of my
friends appear on that memorial.
The flag, in other words, is far more than just a
piece of cloth. The flag is the very symbol of our
freedoms, our values, our aspirations as a nation. And
it deserves constitutional protection.
They say the colors of the flag do not run. But I
know that the colors of the flag flow through the veins
of every American fighting man and woman until their
dying day.
So, in my opinion, allowing people to desecrate the
flag is a slap in the face to every man and woman who
has ever fought for their country. To let the flag and
the principles for which it stands be desecrated at
will is like someone assaulting your wife or your
daughter, and walking free to do it again. I know this
is a pretty strong statement, but this is what I
believe in my heart.
(Testimony of Gary Freeman, September 13, 1989, at 500.)
Following defeat of the constitutional amendment to empower
Congress and the States to prohibit the physical desecration of
the flag of the United States, in 1990, the American Legion and
other veterans, patriotic, and civics groups, and individual
Americans, initiated a grassroots effort to gain support for a
constitutional amendment. Many of these groups and individuals
formed the Citizens Flag Alliance.
The Citizens Flag Alliance consists of over 100
organizations, ranging from the American Legion; the Knights of
Columbus; Grand Lodge, Fraternal Order of Police; and the
National Grange to the Congressional Medal of Honor Society of
the USA and the African-American Women's Clergy Association.
Individual Americans from all walks of life have joined the
effort. The Veterans of Foreign Wars actively supports the
amendment.
Forty-nine State legislatures have called for a
constitutional amendment on flag desecration. According to
Prof. Stephen B. Presser of Northwestern University Law School,
no other amendment in the Nation's history has had this kind of
support in State legislatures.
The Citizens Flag Alliance approached Senators Heflin and
Hatch last year, well before the November, 1994, elections and
asked them to lead a bipartisan effort in the Senate.
Similarly, the Citizens Flag Alliance approached
Congressmen Gerald Solomon and G.V. ``Sonny'' Montgomery to
lead the bipartisan effort in the House.
At the June 6, 1995, hearing of the Senate Judiciary
Committee's Subcommittee on the Constitution, Federalism, and
Property Rights, Rose Lee, past national president of the Gold
Star Wives of America, testified:
The flag, my flag, our flag--it means something
different to each and every American. But to the Gold
Star Wives it has the most personal of meanings.
Twenty-three years ago this American flag covered the
casket of my husband, Chew-Mon Lee, United States Army.
He was a decorated combat veteran wounded in the Korean
War. For his service in Korea he received The Purple
Heart with an Oak Leaf Cluster and the Army's second-
highest award, the Distinguished Service Cross, for
extraordinary heroism in military operations against an
armed enemy. He also served as a staff officer in the
Vietnam War. And like all of us in this room, he was a
proud and patriotic American. He died on active duty
while stationed in Taiwan and is buried at Arlington
National Cemetery. Every Gold Star Wife has a flag like
this one, folded neatly in a triangle and kept in a
special place. It's not fair and it's not right that
flags like this flag, handed to my by an Honor Guard 23
years ago, can be legally burned by someone in this
country. My husband defended this flag during his life.
When he died, it was an honor to have this flag cover
his casket. But it's a dishonor to our husbands and an
insult to their widows to allow this flag to be legally
burned.
In a certain sense, I'm here today to finish the
uncompleted mission of Chew-Mon Lee, to defend in my
own way the flag he defended so bravely throughout his
military career.
The flag is a symbol that stands for the freedoms we
enjoy as Americans. My husband fought for those
freedoms, including one we hear a lot about in this
debate, freedom of speech. The Gold Star Wives believe
that free speech is one of our Nation's most important
ideals. Our country is a marketplace of many voices and
ideas; most of them useful, some of them hurtful. Under
our Constitution you can say anything you want against
the flag or against the United States. But burning the
flag is not an expression of free speech. It's a
terrible physical act. And it's a slap in the face of
every widow who has a flag just like mine.
I'd like to speak briefly about what this flag
symbolizes to me. My parents arrived in this country
from China in the early 1920's. My mother was pregnant
at the time with their first child, a son, one of six
sons she would have. And all six would eventually serve
in the armed forces of the United States. Like many
people who come from other countries, coming to the
United States was a big step for my parents. But they
were proud to become Americans, proud of the
opportunities this great country offered. My mother
expressed that pride by displaying an American flag in
our home each and every day. In a land that welcomes
diverse people, the flag in our home represented that
wonderful diversity.
The flag means something different to each of us. We
each look at the flag and see something personal
reflected in it. To some it stands for strength. To
others it stands for justice. To my parents it meant
diversity and opportunity. To me the flag has come to
mean freedom and courage, the freedom we enjoy as
Americans and the courage of the men and women who
defend those freedoms. I have tried to honor those
ideals by flying the flag outside my home on national
holidays, especially Memorial Day, Flag Day and
Veterans Day. And each day for the past 23 years I have
kept this flag, the flag from my husband's casket,
close at hand.
Although I grew up in California, I live in this area
now and often drive past the powerful Iwo Jima Marine
Memorial. It depicts our servicemen so valiantly and
proudly raising the flag in a turning point of the war
against tyranny and aggression. What a shame it is to
permit the desecration of that flag. What an important
and meaningful step it would be to make protection of
that flag part of our Constitution.
The Gold Star Wives would welcome the day when
organizations like ours would no longer be needed--no
more wars, no more military widows. But until that day
arrives, the Gold Star Wives will be here, each with
her own flag, defended with courage, presented with
gratitude, accepted with pride.
I urge you to give this flag the protection it so
richly deserves.
(Written testimony of Rose Lee, June 6, 1995.)
At the same hearing, Joseph R. Pinon also testified:
I am here today as public servant, community leader,
Vietnam veteran, naturalized citizen and family man. I
have spent my entire adult life in public service.
Currently, I am the assistant city manager of Miami
Beach where I have oversight responsibility for
numerous public works departments and programs serving
the community's diverse, multicultural population. I
have worked for the city in several management
capacities since 1989. Prior to this, I was a police
officer for 13 years serving in virtually every
capacity of law enforcement. I was honored to receive
several commendations during my tenure.
Regarding my community service, I am president of the
South Florida chapter of LULAC, the League of United
Latin American Citizens, the largest Hispanic
organization in the country, representing 350,000
members nationwide. I am president and chairman of the
Stanley Myers Community Health Center, which offers
medical services to more than 2,000, mostly poor,
clients per year. I am also president of ASPIRA of
Florida, an organization that provides opportunities
and alternatives to students throughout Dade County. I
am currently serving as the commander of Veterans of
Foreign Wars Post 10212 in Miami Beach and I am a proud
member of the American Legion.
So you see, I believe I have a good pulse on my
community. And while there is a significant immigrant
presence in Miami, in many ways, my community is not
much different from others across the country. The
families in Miami represent a mix of cultures and
geographic origins. But despite all of our differences,
we live, work and prosper together--united by a great
Constitution and a flag that represents us all. In my
community and others across the country, there is
widespread public support for a constitutional
amendment to protect the United States flag from
physical desecration. We believe, as do most Americans,
that purposeful destruction of the flag is wrong. It is
simply unacceptable behavior and our laws ought to
reflect this basic value. Common sense will tell you
that actions such as flag desecration are not speech.
Seven days a week I meet and talk to common folks who
believe in this country and the ideals and values
represented in the flag. These people, mostly
immigrants, want the flag of their adopted country, my
country and yours, to be protected against offensive,
repugnant acts such as flag burning.
I am one of these immigrants. My family went to great
lengths to flee Fidel Castro's regime, and to be
embraced by this country and its promise of freedom. In
1961 my mother placed me at the age of 12, along with
my 10-year-old brother, on the Pedro Pan flight for
unaccompanied children. We were in limbo until we were
reunited with my mother and younger brother when they
arrived a year later. To my family and millions of
others around the world, the U.S. flag is an enduring
symbol of individual freedom and opportunity. I
remember as if it were yesterday, even though it was
more than 20 years ago, the tears of joy shed by my
mother and brother during citizenship ceremonies as
they pledged allegiance to the flag of the United
States.
As a young man I served my adopted country as a
Marine in Vietnam. Military service was a pivotal point
in my life. I lost many good friends in the war while
others returned in pieces. The war taught me that life
is precious and despite the controversy of our
involvement, I felt particularly fortunate to return to
a society of opportunity and freedom. My experience
instilled in me a sense of obligation to give something
back to my community and my country.
One experience I remember vividly was defending Hill
695, just outside of Khe Sanh, in Vietnam. My Marine
reconnaissance unit was sent in advance of a larger
offensive. Shortly after marking our base with an
American flag, we faced overwhelming forces and had to
withdraw. Despite grave danger, my unit would not leave
until the U.S. flag was removed to safety. Twenty-five
years ago we were willing to risk our lives to make
sure the American flag did not fall into enemy hands.
No one ordered us to do it. It was simply the way we
felt about our Nation and our flag. How sad it is now
to have to wage a political battle to preserve our flag
here at home.
Protecting the flag with a constitutional amendment
is as important to me today as defending the American
flag on Hill 695 outside of Khe Sanh, Vietnam. I am not
a constitutional scholar. But I can speak from what I
know. Throughout my career in public service,
participation in numerous citizenship ceremonies and
involvement in community service, I am reminded each
day that we are a diverse nation, representing many
different ethnic groups, cultures and religions. Yet
our flag has been a unique and unifying symbol. It
stands for individual freedom and democracy and
opportunity for all. It extends to the world a beacon
of peace and goodwill.
(Written testimony, Joseph R. Pinon, June 6, 1995.)
William Detweiler, national commander of the American
Legion testified:
We are a nation born of immigrants, many of whom came
to America with only scant knowledge of our heritage
and our history. Whether they docked at Ellis Island
eighty years ago or landed in Miami yesterday, one of
the first sights they beheld was Old Glory waving
proudly in the air. It was the embodiment of all of
their hopes for a better tomorrow. Although it was not
the flag of their fathers, they knew it would be the
flag of their children, and of their children's
children.
They knew it was the flag of a nation that might not
be perfect, but it was the banner of a good nation that
then, and now strives for equal justice and opportunity
for all. It is their flag--not the battle colors of a
king or the banner of a dictator--it is the flag of the
people.
* * * * *
The flag stands with honor in our houses of worship
because it is a symbol of our religious freedom. It
waves over our schools as a testament to our heritage
and freedom of opportunity. The flag flies over our
state houses and Federal buildings as testimony to our
representative form of government. It is planted in the
Sea of Tranquillity as a monument to our leadership and
perseverance as a united people. And it flies from the
front porch of our homes as a reminder that we are free
today because of those who paid a dear price throughout
all of our yesterdays. Those values, and so much more,
are the essence of the flag. Those values and what they
represent are what we now have the opportunity to pass
on to our children, our children's children and [a]
thousand generations to come through this amendment.
(Written testimony, William Detweiler, June 6, 1995.)
James N. Magill, director, National Legislative Service of
the Veterans of Foreign Wars of the United States, wrote to
Chairman Hatch:
Because our members have always proudly followed the
flag in time of hostility and taken their oaths of
allegiance to the Constitution and the flag very
seriously we passed VFW Resolution 101, ``U.S. Flag
Desecration'' at our last national convention. The
thrust of our resolution is to ask Congress to propose
to the States an amendment to the Constitution
prohibiting the physical desecration of the flag.
(Letter from James N. Magill to Senator Orrin G. Hatch, July
18, 1995.)
Perhaps Paul Greenberg, editorial page editor of the
Arkansas Democrat Gazette, summarized it best in a July 6, 1995
column:
But didn't our intelligentsia explain to us yokels
again and again that burning the flag of the United
States isn't an action, but speech, and therefore a
constitutionally protected right? That's what the
Supreme Court decided, too, if only in one of its
confused and confusing 5-to-4 splits. But the people
don't seem to have caught on. They still insist that
burning the flag is burning the flag, not making a
speech. Stubborn lot, the people. Powerful thing,
public opinion * * *
It isn't the idea of desecrating the flag that the
American people propose to ban. Any street-corner
orator who takes a notion to should be able to stand on
a soapbox and badmouth the American flag all day long--
and apple pie and motherhood, too, if that's the way
the speaker feels, It's a free country.
It's actually burning Old Glory, it's defacing the
Stars and Stripes, it's the physical desecration of the
flag of the United States that oughta be against the
law. And the people of the United States just can't
seem to be talked our of that notion--or orated out of
it, or lectured out of it, or condescended and
patronized out of it.
Maybe it's because the people can't shut their eyes
to homely truths as easily as our Advanced Thinkers.
How many legs does a dog have, Mr. Lincoln once asked,
if you call its tail a leg? And he answered: still
four. Calling a tail a leg doesn't make it one. Not
even a symbolic leg. The people have this stubborn
notion that calling something a constitutional right
doesn't make it one, despite the best our theorists and
pettifoggers can do.
The people keep being told that their flag is just a
symbol.
Just a symbol.
``We live by symbols,'' said a Justice of the U.S.
Supreme Court (Felix Frankfurter) * * * And if a nation
lives by its symbols, it also dies with them.
To turn aside when the American flag is defaced, with
all that the flag means--yes, all that it symbolizes--
is to ask too much of Americans. There are symbols and
there are Symbols. There are some so rooted in history
and custom, and in the heroic imagination of a nation,
that they transcend the merely symbolic; they become
presences. * * *
c. need for an amendment
Only a constitutional amendment can restore power to the
people enabling them to undertake the legal protection of the
flag. The Supreme Court has given the American people and their
elected representatives no choice.
In Texas v. Johnson, Gregory Lee Johnson participated in a
political demonstration at the 1984 Republican National
Convention, protesting policies of the Reagan administration
and certain Dallas-based corporations.
Johnson was given an American flag from a fellow protestor,
who had taken it from a flagpole. At Dallas City Hall, Johnson
unfurled the American flag, poured kerosene on it, and burned
it. While the flag burned, protestors chanted: ``America, the
red, white, and blue, we spit on you.''
Johnson was convicted of desecration of a venerated object
in violation of section 42.09(a)(3) of the Texas Penal Code
which, inter alia, made illegal the intentional or knowing
desecration of a national flag.
By a 5-to-4 vote, the Court held that Johnson's conviction
was inconsistent with the first amendment. The 1st amendment
has been held to be applicable to State action by virtue of the
14th amendment's due process clause.
The Supreme Court acknowledged that ``Johnson was convicted
of flag desecration for burning the flag, rather than for
uttering insulting words.'' 491 U.S. at 402 (footnote omitted).
The Johnson majority concluded that ``Johnson's burning of
the flag was conduct `sufficiently imbued with elements of
communication' to implicate the First Amendment.'' Id. at 406
(citation omitted).
If expressive conduct is being regulated by government for
reasons unrelated to the suppression of expression, the
Government need meet a less stringent standard and thus has a
freer hand than if the Government is seeking to regulate
expression itself. Id. at 406, 407.
The Court concluded that a State's ``interest in preserving
the flag as a symbol of nationhood and national unity * * * is
related to expression in the case of Johnson's burning of the
flag.'' Thus, the more stringent test--``the most exacting
scrutiny''--must be applied to Texas' conviction of Johnson.
Id. at 410 (citation omitted).
``Texas argues that its interest in preserving the flag as
a symbol of nationhood and national unity survives this close
analysis.'' Id. at 413. The Johnson majority disagreed:
[N]othing in our precedents suggests that a state may
foster its own view of the flag by prohibiting
expressive conduct relating to it * * * If we were to
hold that a state may forbid flag burning wherever it
is likely to endanger the flag's symbolic role, but
allow it whenever burning a flag promotes that role--as
where, for example, a person ceremoniously burns a
dirty flag--we would be saying that when it comes to
impairing the flag's physical integrity the flag itself
may be used as a symbol--as a substitute for the
written or spoken word or a ``short cut from mind to
mind''--only in one direction * * *
We never before have held that the Government may
ensure that a symbol be used to express only one view
of that symbol or its referents * * *
There is, moreover, no indication--either in the text
of the Constitution or in our cases interpreting it--
that a separate juridical category exists for the
American flag alone * * *
Id. at 415-417.
In dissent, Justice Stevens noted that the question whether
a State or the Federal Government ``has the power to prohibit
the public desecration of the American flag * * * is unique.''
Id. at 436 (Stevens, J., dissenting). Justice Stevens
continued:
* * * In my judgment rules that apply to a host of
other symbols, such as state flags, armbands, or
various privately promoted emblems of political or
commercial identity, are not necessarily controlling.
Even if flag burning could be considered just another
species of symbolic speech under the logical
application of the rules that the Court has developed
in its interpretation of the First Amendment in other
contexts, this case has an intangible dimension that
makes those rules inapplicable.
A country's flag is a symbol of more than
``nationhood and national unity.'' It also signifies
the ideas that characterize the society that has chosen
that emblem as well as the special history that has
animated the growth and power of those ideas. The
fleurs-de-lis and the tricolor both symbolized
``nationhood and national unity,'' but they had vastly
different meanings. The message conveyed by some
flags--the swastika, for example--may survive long
after it has outlived its usefulness as a symbol of
regimented unity in a particular nation.
So it is with the American Flag. It is more than a
proud symbol of the courage, the determination, and the
gifts of nature that transformed 13 fledgling Colonies
into a world power. It is a symbol of freedom, of equal
opportunity, of religious tolerance, and of good will
for other peoples who share our aspirations. The symbol
carries its message to dissidents both at home and
abroad who may have no interest at all in our national
unity or survival.
The value of the flag as a symbol cannot be measured.
Even so, I have no doubt that the interest in
preserving that value for the future is both
significant and legitimate. Conceivably that value will
be enhanced by the Court's conclusion that our national
commitment to free expression is so strong that even
the United States as ultimate guarantor of that freedom
is without power to prohibit the desecration of its
unique symbol. But I am unpersuaded. The creation of a
Federal right to post bulletin boards and graffiti on
the Washington Monument might enlarge the market for
free expression, but at a cost I would not pay.
Similarly, in my considered judgment, sanctioning the
public desecration of the flag will tarnish its value--
both for those who cherish the ideas for which it waves
and for those who desire to don the robes of martyrdom
by burning it. That tarnish is not justified by the
trivial burden on free expression occasioned by
requiring that an available, alternative mode of
expression--including uttering words critical of the
flag, see Street v. New York, 394 U.S. 576 (1969)--be
employed.
It is appropriate to emphasize certain propositions
that are not implicated by this case. The statutory
prohibition of flag desecration does not ``prescribe
what shall be orthodox in politics, nationalism,
religion, or other matters of opinion or force citizens
to confess by word or act their faith therein,'' West
Virginia Board of Education v. Barnette, 319 U.S. 624,
642 (1943). The statute does not compel any conduct or
any profession of respect for any idea or any symbol.
* * * * *
The Court is * * * quite wrong in blandly asserting
that respondent ``was prosecuted for his expression of
dissatisfaction with the policies of this country,
expression situated at the core of our First Amendment
values.'' Respondent was prosecuted because of the
method he chose to express his dissatisfaction with
those policies. 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. Though the asset at stake in this case
is intangible, given its unique value, the same
interest supports a prohibition on the desecration of
the American flag.
Id. at 436-39.
The majority opinion, in contrast, was unable to understand
the uniqueness of the flag:
To conclude that the government may permit designated
symbols to be used to communicate only a limited set of
messages would be to enter territory having no
discernible or defensible boundaries. Could the
government on this theory prohibit the burning of state
flags? Of copies of the Presidential seal? Of the
Constitution? In evaluating these choices under the
First Amendment, how would we decide which symbols were
sufficiently special to warrant this unique status? To
do so, we would be forced to consult our own political
preferences, and, impose them on the citizenry, in the
very way that the First Amendment forbids us to do.
Id. at 417.
The American flag as mere ``designated symbol?'' The
American flag as indistinguishable from a State flag, a copy of
the Presidential seal, or a copy of the Constitution?
The Court could have recognized the obvious uniqueness of
the American flag, as all four dissenters did. The law need not
be utterly divorced form common sense and understanding on this
point. The proposed amendment does no more than return us to
this common understanding and common sense point of view, as
most recently expressed by 49 State legislatures.
As Chief Justice Rehnquist, for himself and Justices
O'Connor and White, stated in dissent:
For more than 200 years, the American flag has
occupied a unique position as the symbol of our Nation,
a uniqueness that justifies a governmental prohibition
against flag burning in the way respondent Johnson did
here.
Id. at 422.
Rebuking the Johnson majority, he continued later in his
dissent:
The uniquely deep awe and respect for our flag felt
by virtually all of us are bundled off under the rubric
of ``designated symbols,'' that the First Amendment
prohibits the government from ``establishing.'' But the
government has not ``established'' this feeling; 200
years of history have done that. The government is
simply recognizing as a fact the profound regard for
the American flag created by that history when it
enacts statutes prohibiting the disrespectful public
burning of the flag.
Id. at 434.
In an earlier case, Justice White wrote:
One need not explain fully a phenomenon to recognize
its existence and in this case to concede that the flag
is an important symbol of nationhood and unity, created
by the Nation and endowed with certain attributes * * *
Smith v. Goguen, 415 U.S. 566 at 587 (White, J., concurring).
Following the Supreme Court's decision in Texas v. Johnson,
there was a thoughtful debate over whether a so-called facially
``content neutral'' flag protection statute would survive the
Supreme Court's scrutiny. Legal scholars and many commentators
were divided over this question. A number of Members of
Congress did not believe any such statute could survive the
majority's analysis in Johnson, even aside from whether a
facially content neutral flag protection statute is desirable
as a matter of sound public policy. The Johnson majority
declared that the Government's asserted interest in preserving
the flag as a national symbol was insufficient to overcome the
majority's newly minted ``right'' to burn or otherwise
physically mistreat the flag as part of expressive conduct.
Nevertheless, it cannot be denied that the principal, if not
the only purpose, in enacting a facially content neutral
statute is to protect the symbolic value of the flag. Indeed,
one underlying purpose of any statutory effort to respond to
Johnson would be to prohibit ``expressive'' conduct that
physically desecrates the flag. Further, a facially neutral
statute which did not permit an exception for disposal of a
worn or soiled American flag by burning--which is the preferred
way of doing so--would lead to highly undesirable results. Yet
such an exception necessarily undermines the purported
neutrality of such a statute--indeed, the Court said so in
Johnson.
Congress did enact a facially neutral statute in 1989 with
an exception for disposal of worn or soiled flags, as a
response to the Johnson decision. The Supreme Court promptly
struck it down, 5 to 4:
Although the Flag Protection Act contains no explicit
content-based limitation on the scope of prohibited
conduct, it is nevertheless clear that the government's
asserted interest is ``related to the suppression of
free expression,'' and concerned with the content of
such expression. 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 ideas * * *
United States v. Eichman, 496 U.S. 310, at 315, 316 (citations
omitted; emphasis in original).
A statutory response to the Johnson and Eichman decisions
is thus clearly not a viable option. A narrow 5-to-4 majority
of the Supreme Court erred in Texas v. Johnson and repeated its
error in United States v. Eichman. President Clinton agrees
Texas v. Johnson was wrongly decided, even though he opposes
any constitutional amendment on flag protection. (Testimony of
Assistant Attorney General for Legal Counsel Walter Dellinger,
June 6, 1995, Tr. at 54, 66.)
We live in a time where standards have eroded. Civility and
mutual respect are in decline. Nothing is immune from being
reduced to the commonplace. Absolutes are distrusted. Values
are considered relative. Rights are cherished and constantly
expanded, but responsibilities are shirked or scorned.
We seek to instill in our children a pride in their country
that will serve as a basis for good citizenship and a devotion
to improving the country and adhering to its best interests as
they can see them. We hope they will feel connected to the
diverse people who are their fellow citizens. We ask our school
children to pledge allegiance to the flag, but Johnson and
Eichman dictate that we must tell them the same flag is
unworthy of legal protection when it is treated in the most
vile, disrespectful, and contemptuous manner.
At the same time, our country grows more and more diverse.
Many of our people revel in their particular cultures and
diverse national origins, and properly so. Others are alienated
from their fellow citizens and from government altogether.
We have no monarchy, no ``state'' religion, no elite
class--hereditary or otherwise--``representing'' the Nation. We
have the flag.
The American flag is the one symbol that unites a very
diverse people in a way nothing else can, in peace and war.
Despite our differences of party, politics, philosophy,
religion, ethnic background, economic status, social status, or
geographic region, the American flag forms a unique, common
bond among us. Failure to protect the flag inevitably loosens
this bond, no matter how much some may claim to the contrary.
The flag stands above all of our differences. The American
people's desire for the legal protection of their beloved flag
draws support across all of the lines that otherwise divide us.
It is not possible to express fully all of the reasons the
flag deserves such protection. As then Justice Rehnquist wrote
in 1974: ``The significance of the flag, and the deep emotional
feelings it arouses in a large part of our citizenry, cannot be
fully expressed in the two dimensions of a lawyer's brief or of
a judicial opinion.'' Smith v. Goguen, 415 U.S. 566 at 602
(1974) (Rehnquist, J., dissenting). The same is true of a
congressional committee report.
Senate Joint Resolution 31 empowers Congress and the States
to protect only the American flag--and only from acts of
physical desecration.
The current movement for this amendment originates with the
American people. It is right and proper that their elected
representatives respond affirmatively.
d. senate joint resolution 31 is a suitable amendment to the
constitution
1. Senate Joint Resolution 31 will effectively restore power to
Congress and the States denied them in Texas v. Johnson and
U.S. v. Eichman; S.J. Res. 31 does not ``trump'' the first
amendment or any other constitutional provision
The Clinton administration, as part of the false choice
between restricting the first amendment or protecting the flag
it poses to the American people, makes two contradictory
initial arguments. On the one hand, it argues that,
Read literally, the amendment would not alter the
result of the decisions in Eichman and Johnson, holding
that the exercise of congressional and state power to
protect the symbol of the flag is subject to First and
Fourteenth Amendment limits.
(Written statement of Assistant Attorney General for Legal
Counsel Walter Dellinger, June 6, 1995, at page 4.)
On the other hand, on the preceding page, the
administration argues, ``it is entirely unclear how much of the
Bill of Rights it would trump.'' (Id. at page 3.)
The short answers, are, of course, first, the amendment
does overturn the two Supreme Court decisions and empowers
Congress and the States to prohibit physical desecration of the
flag. Second, the amendment does not trump any part of the
Constitution.
a. Senate Joint Resolution 31 will effectively empower
Congress and the States to enact statutes prohibiting the
physical desecration of the American flag
Some critics of S.J. Res. 31 suggest that it may merely be
redundant of ``governmental power to legislate in this area
that always has been assumed to exist.'' (Id at 4.) The
suggestion is ironic since the flag amendment will simply
restore power to Congress and the States it was assumed they
always possessed. The committee shares the reaction of one of
Mr. Dellinger's predecessors, former Assistant Attorney General
for Legal Counsel Charles J. Cooper:
* * * I am perplexed by the claim that the states and
Congress currently possess, notwithstanding Johnson and
Eichman, the legislative power that the Supreme Court
so decisively and permanently prevented them from
exercising in Johnson and Eichman.
(Written testimony of Charles J. Cooper, June 6, 1995, at 9.)
The Supreme Court in Texas v. Johnson stated, ``There is *
* * no indication--either in the text of the Constitution or in
our cases interpreting it--that a separate juridical category
exists for the American flag alone.'' (491 U.S. at 417). Simply
put, this amendment creates that ``separate juridical
category'' for the flag in the Constitution's text, and grants
the power to prohibit physical desecration of the flag the
Supreme Court took away in 1989. Indeed, any other
interpretation of the amendment renders it meaningless. As Mr.
Cooper testified, in coming to the same conclusion: ``Suffice
it to say that there is no reasonable possibility that the
Supreme Court, in some future Johnson or Eichman case, would
interpret the Flag Protection Amendment as being utterly
meaningless.'' Bruce Fein, a former Department of Justice
lawyer who testified against the amendment, agreed.
b. Senate Joint Resolution 31 does not amend the first
amendment or ``trump'' any other constitutional provision
This amendment, granting Congress and the States power to
prohibit physical desecration of the flag, does not amend the
first amendment. The flag amendment overturns two Supreme Court
decisions which have misconstrued the first amendment.
The first amendment's guarantee of freedom of speech has
never been deemed absolute. Libel is not protected under the
first amendment. Obscenity is not protected under the first
amendment. A person cannot blare out his or her political views
at two o'clock in the morning in a residential neighborhood and
claim first amendment protection. Fighting words which provoke
violence or breaches of the peace are not protected under the
first amendment.
The view that the first amendment does not disable Congress
and the States from prohibiting physical desecration of the
flag has been shared by ardent supporters of the first
amendment and freedom of expression.
In Street v. New York, 394 U.S. 576 (1969), the defendant
burned a flag while uttering a political protest. The Court
overturned his conviction since the defendant might have been
convicted solely because of his words. The Court reserved
judgment on whether a conviction for flag burning itself could
withstand constitutional scrutiny. Id. at 581. Chief Justice
Warren dissented, and in so doing, asserted: ``I believe that
the States and the Federal Government do have the power to
protect the flag from acts of desecration and disgrace * * *''
Id. at 605 (Warren, C.J., dissenting).
Justice Black--generally regarded as a first amendment
``absolutist''--also dissented and stated: ``It passes my
belief that anything in the Federal Constitution bars a State
from making the deliberate burning of the American Flag an
offense.'' Id. at 610 (Black, J., dissenting).
Justice Fortas agreed with Chief Justice Warren and Justice
Black:
[T]he states and the Federal Government have the
power to protect the flag from acts of desecration
committed in public. * * * [T]he flag is a special kind
of personality. Its use is traditionally and
universally subject to special rules and regulation. *
* * A person may ``own'' a flag, but ownership is
subject to special burdens and responsibilities. A flag
may be property, in a sense; but it is property
burdened with peculiar obligations and restrictions.
Certainly * * * these special conditions are not per se
arbitrary or beyond governmental power under our
Constitution.
Id. at 615-617 (Fortas, J., dissenting).
Professor Stephen B. Presser testified:
The Flag Amendment would not in any way infringe the
First Amendment. * * * The Flag Protection Amendment
does not forbid the expression of ideas, nor does it
foreclose dissent.
(Written testimony of Professor Stephen B. Presser, June 6,
1995, at p. 11.)
Richard Parker, professor of Law at Harvard Law School,
testified:
The proposal would not ``amend the First Amendment.''
Rather, each amendment would be interpreted in light of
the other--much as in the case with the guaranties of
Freedom of Speech and Equal Protection of the Laws.
When the Fourteenth Amendment was proposed, the
argument could have been made that congressional power
to enforce the Equal Protection Clause might be used to
undermine the First Amendment. The courts have seemed
able, however, to harmonize the two. The same would be
true here. Courts would interpret ``desecration'' and
``flag of the United States'' in light of general
values of free speech. They would simply restore one
narrow democratic authority. Experience justifies this
much confidence in our judicial system.
But, we're asked, is ``harmonization'' possible? If
the Johnson and Eichman decisions protecting flag
desecration were rooted in established strains of free
speech law--as they were--how could an amendment
countering those decisions coexist with the First
Amendment?
First, it's important to keep in mind that free
speech law has within it multiple, often competing
strains. The dissenting opinions Johnson and Eichman
were also rooted in established arguments about the
meaning of freedom of speech. Second, even if the
general principles invoked by the five Justices in the
majority are admirable in general--as I believe they
are--that doesn't mean that the proposed amendment
would tend to undermine them, so long as it is
confined, as it is intended, to mandating a unique
exception for a unique symbol of nationhood. Indeed,
carving out the exception in a new amendment--rather
than through interpretation of the First Amendment
itself--best ensures that it will be so confined. Even
opponents of the new amendment agree on this point.
Third, it's vital to recognize that the proposed
amendment is not in general tension with the free
speech principle forbidding discrimination against
specific ``messages'' in regulation of speech content.
Those who desecrate the flag may be doing so to
communicate any number of messages. They may be saying
that government is doing too much--or too little--about
a particular problem. In fact, they may be burning the
flag to protest the behavior of non-governmental,
``patriotic'' groups and to support efforts of the
government to squash those groups. Laws enacted under
the proposed amendment would have to apply to all such
activity, whatever the specific ``point of view.'' One,
and only one, generalized message could be regulated:
``desecration'' of the flag itself. And regulation
could extend no farther than a ban on one, and only
one, mode of doing it: ``physical'' desecration.
Finally, and perhaps most importantly, we mustn't lose
sight of the fundamental purpose of the proposed
amendment. That purpose is to restore democratic
authority to protect the unique symbol of our
aspiration to national unity, an aspiration that, I've
said, nurtures--rather than undermines--freedom of
speech that is ``robust and wide-open.''
(Written testimony, Prof. Richard D. Parker, June 6, 1995,
pages 6-8, footnotes omitted.)
There is no basis for the assertion that the amendment
``trumps'' or supersedes other parts of the Constitution. Such
an assertion is a scare tactic. Nothing in the text of the
amendment provides a basis for that fear. The 4th and 8th
amendments, and the due process clause of the 5th and 14th
amendments, for example, all apply to legislation enacted under
S.J. Res. 31 and will avert abuses that some of the amendment's
opponents fear. As Mr. Cooper testified regarding the
possibility of contrary results: ``There are simply no
plausible arguments supporting an interpretation of the
proposed Flag Protection Amendment that yield these results.''
As Professor Parker testified, the flag amendment will be read
in harmony with the rest of the Constitution, including the
first amendment.
The Clinton administration particularly cites two cases in
raising its concerns in this regard. The first is Smith v.
Goguen, 415 U.S. 566 (1974), a case involving the void for
vagueness doctrine of the due process clause of the 14th
amendment. But there is no basis at all to suggest S.J. Res. 31
trumps the due process clause of the 5th or 14th amendments.
Nothing in the amendment suggests that result. Nor does this
case suggest that flag statutes enacted pursuant to S.J. Res.
31 would not be subject to, or unable to withstand, due process
scrutiny.
In Smith v. Goguen, the Court found a portion of a
Massachusetts law void because it was unconstitutionally vague.
The Court did not reach first amendment issues.
The Massachusetts statute made illegal publicly mutilating,
trampling upon, defacing, or treating contemptuously the flag
of the United States. The phrase ``treats contemptuously'' was
the offending, unconstitutionally vague phrase.
Yet, in the very same opinion, the Court noted:
Certainly nothing prevents a legislature from
defining with substantial specificity what constitutes
forbidden treatment of United States flags. The Federal
flag desecration statute * * * reflects a congressional
purpose to do just that * * * [That statute reaches]
only acts that physically damage the flag.
415 U.S. at 582.
The Court then quoted the Federal statute, as a flag
statute surviving a due process, void-for-vagueness claim:
``Whoever knowingly casts contempt upon any flag of the United
States by publicly mutilating, defacing, defiling, burning, or
trampling upon it.''
In other words, legislation under the flag amendment is
subject to the void-for-vagueness doctrine. But that doctrine
allows Congress and the States to prohibit contemptuous or
disrespectful treatment of the flag so long as there is
substantial specificity in spelling out what that treatment
is--be it by burning, mutilating, defiling, defacing,
trampling, and so on.
This amendment authorizes the very same language the Court
cited from the Federal statute. Smith v. Goguen is not affected
by this amendment, and a statute prohibiting the casting of
contempt on the flag by specified physical acts survives a due
process vagueness challenge under that decision.
Next, the administration raises concern about the Supreme
Court's decision in R.A.V. v. St. Paul, 112 S.Ct. 2538 (1992).
Mr. Dellinger notes that when the first amendment permits
regulation of a whole category of speech or expressive conduct,
``it does not necessarily permit the government to regulate a
subcategory of the otherwise prescribable speech on the basis
of its particular message.'' (Written statement, page 6.)
The committee finds concern about S.J. Res. 31 in light of
R.A.V. to be misplaced. Congress and the States are not
authorized by the flag protection amendment to enact statutes
banning physical flag desecration only by advocates of
particular points of view. That is, for example, a legislature
could not ban burning the flag by those who condemn an increase
in military spending, but not ban such desecration by those who
seek to protest what they believe to be inadequate military
spending. See R.A.V. v. City of St. Paul [112 S.Ct. 2538
(1992)].
The committee notes as well, that the Clinton
administration's suggestion, in footnote 10 of its testimony,
is incorrect. There, Mr. Dellinger says that ``[e]ven a statute
that prohibited all flag desecration would be in tension with
the principle of R.A.V.'' because, for example, respectful
burning of the flag, say, to dispose of a worn flag, would
remain legal. In fact, there will be no such tension between a
flag statute prohibiting all flag desecration and R.A.V.
The judiciary has determined that the first amendment does
not protect libel. R.A.V. says: ``* * * the government may
proscribe libel; but it may not make the further content
discrimination of proscribing only libel critical of the
government.'' [112 S.Ct. at 2543.] Similarly, S.J. Res. 31, if
ratified, will establish that the Constitution does not protect
physical desecration of the flag. Congress and the States,
having created power in the Government to proscribe flag
desecration, R.A.V. then only requires that the government not
discriminate among flag desecrators based on the points of view
they seek to dramatize by their particular physical
desecration. Similarly, governments could not ban physical
desecration of the flags by members of one race but not ban it
when committed by members of other races, per the 5th and 14th
amendments.
As further indication of the lack of merit to the
administration's criticism that the flag amendment might
supersede other parts of the Bill of Rights, consider the 16th
amendment. It too is one sentence: ``The Congress shall have
power to lay and collect taxes on incomes, from whatever source
derived, without apportionment among the several States, and
without regard to any census or enumeration.''
This language, ratified in 1913, is remarkably similar to
the flag amendment in that it says, without more, that a
legislative body, ``shall have power'' to do something. Do the
critics of S.J. Res. 31 doubt the applicability of the fourth
and eighth amendments to legislation enacted under the income
tax amendment? The committee assumes not. Why, then, invoke
these scare tactics against the flag amendment?
2. The terms ``physical desecration'' and ``flag of the United States''
are precise enough for inclusion in the Constitution
The Senate in the 104th Congress should not subject S.J.
Res. 31, authorizing legislation protecting the American flag,
to a higher standard than the Framers subjected the terms of
the Constitution and the Bill of Rights in the Philadelphia
Convention and in the First Congress. The terms of the flag
protection amendment are at least as precise, if not more so,
than such terms as ``unreasonable searches and seizures;''
``probable cause;'' ``speedy * * * trial;'' ``excessive bail;''
``excessive fines;'' ``cruel and unusual punishment;'' ``due
process of law;'' ``just compensation''--all terms from the
Bill of Rights. Similarly, the 39th Congress was not deterred
from the inclusion of the term ``equal protection of the laws''
in the 14th amendment by concerns of alleged vagueness. None of
these terms are self-executing. All have been eventually
explicated by the judiciary. Similarly, as Senator Heflin noted
at both the June 6 subcommittee hearing and the July 20
executive business meeting, we should not lose sight of the
fact that all the flag protection amendment does is authorize
Congress and the States to enact implementing legislation.
Legislative bodies will implement the flag protection amendment
with the specificity of statutory language which itself, as
mentioned earlier, will be subject to constitutional
requirements.
Second, the committee does not consider ambiguous the word
``desecrate,'' which in turn is modified by the word
``physically.'' Desecrate means to treat with contempt, to
treat with disrespect, to violate the sanctity of something;
profane. The committee does not believe these terms are too
difficult for our legislatures and courts to handle. Congress
had no difficulty in utilizing its constitutional power to
legislate sensibly on this subject in 1968. Legislative bodies
will define what treatment they believe constitutes
desecration. Accidental acts are not reachable. As Professor
Parker testified:
it's useful to keep in mind that this word--like any
number of others in the constitutional text--is a term
of art. It has no religious connotation. The
Constitution of Massachusetts, for instance, provides
that the right to jury trial ``must be held sacred''
[Constitution of the Commonwealth of Massachusetts,
part I, article 15], and no one reads that as a
theological mandate. The question for courts
interpreting the proposed amendment would be: what
sorts of physical treatment of the flag are so grossly
contemptuous of it as to count as ``desecration?'' This
is the type of question--raising issues of fact and
degree, context, and purpose--that the courts resolve
year in and year out under other constitutional
provisions. Thus, there is nothing radical or extreme
about the flag amendment--unless it is the rhetoric
igniting and fueling all kinds of fears purveyed by
some of its opponents.
The flag protection amendment does not authorize
legislation which prohibits displaying or carrying the flag at
meetings or marches of any group--be they Nazis, Marxists, or
anyone else. The amendment does not authorize legislation
prohibiting derogatory comments about the flag or cursing the
flag, nor does it authorize a prohibition on shaking one's fist
at the flag or making obscene gestures at the flag, whether or
not such gestures are accompanied by words. The amendment does
not authorize legislation penalizing carrying or displaying the
flag upside down as a signal of distress or flying it at half
mast on days not officially designated for such display.
The flag protection amendment does not disturb Congress'
power alone to determine the design of the flag of the United
States. It has already done so in 4 U.S.C. 1 and 2. If Congress
sends this amendment to the States, and if they ratify it, it
would be with this design as the backdrop. Congress might later
change the design of the flag, which is extremely unlikely, but
no State now or in the future will be able to determine the
design of the American flag.
Having said that, under this amendment, there is some
flexibility in the legislative bodies in defining the term
``flag of the United States.''
While the committee does not believe that congressional
consideration of a constitutional amendment empowering Congress
and the States to protect the flag is the appropriate time to
discuss the details of implementing legislation, the committee
notes two of the possibilities available to legislative bodies.
For example, the term ``flag of the United States'' could
be defined at the narrowest as just a cloth or other substance
or material readily able to be flown, waved, or displayed with
the characteristics as set out in the U.S. Code sections
mentioned earlier. The flag, of such characteristics and
material, could also be defined to be of any size or
dimensions. That would be up to legislative bodies to
determine.
Another possible definition available to legislative bodies
would be to include in the definition of the flag something a
reasonable person would perceive to be a flag of the United
States meeting the design set forth in the U.S. Code, and
capable of being waved, flown, or displayed, regardless of
whether it is precisely identical to that design. Thus, under
such a definition, for example, physically desecrating a flag
with 48 stars, or 12 or 14 stripes, could be covered. Congress
or States may wish to use such a definition because the reasons
we would ban burning, defacing, defiling, trampling, or
mutilating an American flag obtain when the flag being so
treated has 48 stars, for example, and people cannot readily
tell the difference between it and a 50 star flag. They look
indistinguishable from even close up. For all we know, for
example, the people burning the flags giving rise to the
Johnson and Eichman cases may have burned flags with less than
50 stars or 13 stripes.
The choice of what to cover under the term ``flag of the
United States'' should be left up to the sensible judgment of
the American people, as it had been for 200 years before the
Johnson decision.
As to the parade of horribles opponents invoke in
opposition to the amendment, there is a straightforward answer.
For many years, 48 States and the Federal Government had flag
protection statutes on the books. Were there insuperable
problems of administration, enforcement, and adjudication under
those statutes? No.
Testing the hypotheticals posed by opponents of this
amendment about things such as bathing suits, paper cups, and
napkins with a picture of the flag, against the history of
enforcement of flag desecration statutes, renders these
hypotheticals no basis for opposing the amendment. This is
especially true in light of a string of judicial decisions
since these statutes were first enacted: extending the first
amendment's free speech protection against the actions of the
States; requiring substantial specificity in what is made
illegal; and effectively prohibiting discrimination between
desecrators based on viewpoint. It is also especially true in
light of the universal understanding that words alone casting
contempt on the flag cannot be actionable under the flag
protection amendment.
The committee believes, moreover, that states and Congress
will legislate with care, and with the specificity required by
the Constitution. There is certainly a greater awareness of the
concerns raised by opponents of legal protection of the flag
from physical desecration--however exaggerated many of the
hypotheticals are--than existed at the time most of the 49 pre-
1989 statutes were enacted.
Reliance on the parade of horribles to oppose the amendment
would reflect the Senate's fundamental mistrust of the people,
acting through their elected officials, to enact reasonable
flag protection statutes.
As then Assistant Attorney General for Legal Counsel
William Barr, for example, testified before the Judiciary
Committee on August 1, 1989:
I would simply urge the committee not to lose sight
of the ultimate objective of protecting the flag by
becoming mired in countless hypotheticals that can be
posed to test at the margins choice of the term
``desecration.'' One can always construct hypotheticals
that push the limits of any word in the language. This
is as true of statutory language as it is of
constitutional language. In the end, those who are
responsible for the ultimate choice of language, must
simply choose terms that most clearly reach the conduct
they wish to reach, and only that conduct. At the
margins, one has no choice but to rely upon the
individual legislatures in the first instance, and
ultimately on the courts, to prevent application of the
language in a manner that would do injustice to the
drafter's intent.
(Written testimony of William Barr, August 1, 1989, at 18.)
The committee is mindful that it is the Constitution we are
proposing to amend, not a code of statutes. Drafting the
language of a flag protection amendment too narrowly runs a
serious risk of thwarting the American people's ability to
legislate protection of their flag from the range of acts or
conduct which might physically misuse, or cast contempt
physically on, the flag. No supporter of protecting the
American flag from physical desecration wishes to amend the
Constitution twice to achieve that purpose.
3. The flag protection amendment is no precedent whatsoever for any
other constitutional amendment or statute
There is no ``slippery slope'' here. The flag protection
amendment is limited to authorizing states and the Federal
Government to prohibit physical desecration of only the
American flag. It serves as no precedent for any other
legislation or constitutional amendment on any other subject or
mode of conduct, precisely because the flag is unique.
Moreover, the difficulty in amending the Constitution serves as
a powerful check on any effort to reach other conduct, let
alone speech, which the Supreme Court has determined is
protected by the first amendment.
It is not the ``thought we hate'' which this amendment
would allow Congress and the States to prohibit, but rather,
one narrow method of dramatizing a viewpoint--one form of
conduct. No speech, and no conduct other than physical
desecration of the American flag, can be regulated under
legislation authorized by the amendment.
As Mr. Cooper testified:
* * * if prohibiting flag desecration would place us on
[a slippery slope of restrictions on constitutional
protection of expression ``for the thought we hate,'']
we have been on it for a long time. The sole purpose of
the Flag Protection Amendment is to restore the
constitutional status quo ante Johnson, a time when 48
States, the Congress, and four Justices of the Supreme
Court believed that the legislation prohibiting flag
desecration was entirely consistent with the First
Amendment. And that widespread constitutional judgment
was not of recent origin, it stretched back about 100
years in some States. During that long period before
Johnson, when flag desecration was universally
criminalized, we did not descend on this purported
slippery slope into governmental suppression of
unpopular speech. The constitutional calm that preceded
the Johnson case would not have been interrupted, I
submit, if a single vote in the majority had been cast
the other way, and flag desecration statutes had been
upheld. Nor will it be interrupted, in my view, if the
Flag Protection Amendment is passed and ratified.
(Testimony of Charles J. Cooper, June 6, 1995, at 12, 13).\2\
\2\ Some critics of the flag protection amendment suggest that, for
example, protection of the American flag from physical desecration
ineluctably will lead to curtailment or prohibition of the right of
Nazis to march in Skokie, IL, a community of survivors of the Nazi
Holocaust. At a minimum, say these critics, the flag protection
amendment renders ``cynical'' the denial to Holocaust survivors of the
right to prevent such a march.
The flag protection amendment provides no basis for curtailing
anyone's right to march anywhere, regardless of the marchers message,
as explained more fully elsewhere in this report. The uniqueness of the
flag itself, and the obvious distinction between physically desecrating
it and other forms of ``expression'' such as marches, rallies, and
picketing, render this concern completely unjustified.
Professor Parker answered the concern about the Skokie case in
response to written questions from Senator Hatch. He replied, in part:
The [flag protection amendment is] premised on a belief
that permitting physical desecration of the flag tends to
erode the underpinning of our country and our liberties as
a whole--whether or not a specific group, in a specific
place, is offended * * * I would say to the camp
survivors--and to other groups sometimes painfully offended
by free expression--that the aspiration to national unity,
which is symbolized by the flag is unique. More than that,
it is foundational. It is the basis of all laws and legal
protections. It is thus the basis of the security of all
groups. It underlies the freedom of speech that enables us
to condemn prejudice and hatred. What is at stake, here, is
the bond that holds us together, despite all our
differences, in democracy--and that ought, surely, to come
first.
(Letter from Prof. Richard D. Parker to Senator Orrin G. Hatch,
June 13, 1995.)
Mr. Cooper also responded in writing to the argument that this
amendment will be the basis for exceptions to the first amendment's
protection of hateful political speech, such as racist speech of the Ku
Klux Klan or anti-Semitic speech of Nazis and that prohibiting flag
desecration would undermine the moral legitimacy of constitutional
protection of all other hateful or offensive expressions. He wrote to
Senator Hatch on June 27, 1995:
I believe that this argument proceeds from two false
premises. First * * * ratification of the Flag Protection
Amendment would in no way compromise, or even threaten to
compromise, the First Amendment's protection ``for the
thought we hate.'' Nor would the proposed amendment in any
way curtail, censor, abridge, or otherwise affect in the
slightest any speech communicating ``the thought we hate.''
The protestor who burned an American flag in the Johnson
case led his comrades in chanting ``America the red, white,
and blue, we spit on you,'' as they watched the flames
consume our flag. Their anti-American speech expressed,
albeit sophomorically, hateful thoughts, and their
continued freedom to do so would not be affected in the
slightest by ratification of the Flag Protection Amendment.
It would simply deny to such people the freedom to
dramatize their anti-American speech by physically
desecrating an American flag.
The slippery slope argument against the Flag Protection
Amendment is also premised on the false notion that a
constitutional amendment authorizing legislative
restriction on physical desecration of the American flag
would constitute an abrupt departure from our Nation's
traditional commitment to freedom of speech. In truth,
however, it was the Supreme Court's decision in Texas v.
Johnson that departed abruptly from the traditional and
widely held view that statutory prohibitions against flag
desecration are entirely consistent with the First
Amendment. * * *
* * * * * * *
Ratification of S.J. Res. 31 * * * will not require
changing in the slightest what Holocaust victims living in
Skokie, IL, were told in 1977 when neo-Nazis actually did
march through their community. See Natl. Socialist Party of
America v. Skokie, 432 U.S. 43 (1977). Again, at the time
of that infamous march in Skokie, flag burning was
criminalized both by Congress and by the State of Illinois,
and there was no doubt that if the Nazis dramatized their
hateful message by burning an American flag, they would be
prosecuted and punished for their crime. And yet the
residents of Skokie were nonetheless told that they must
endure the pain of the Nazis' despicable message and must
tolerate the spectacle of the Nazis' presence in their
community to communicate that message. They were told that
our First Amendment protects the freedom of the Nazis to
express their hateful message in Skokie no less than it
protects the freedom of Holocaust survivors to protest
Hitler's despicable thoughts and acts in any community
dominated by neo-Nazis (if there is such a community). But
neither group, nor anyone else, was at that time
constitutionally free to physically desecrate an American
flag. Why was this so? Senator Hatch answered this
question, to my satisfaction at least, not long ago:
The American flag represents in a way nothing else can,
the common bond shared by a very diverse people. Yet
whatever our differences of party, politics, philosophy,
race, religion, ethnic background, economic status, social
status, or geographic region, we are united as Americans.
That unity is symbolized by a unique emblem, the American
flag.
(Congressional Record, March 21, 1995.)
---------------------------------------------------------------------------
Some critics of the amendment ask, is our flag so fragile
as to require legal protection? The committee has explained why
it believes our national symbol should be legally protected.
The better question is--is our freedom of expression so fragile
in this country as to be unable to withstand the withdrawal of
the flag from physical desecration? Of course not.
Unpopular ideas have many avenues of expression, including
the use of marches, rallies, picketing, leaflets, placards,
bullhorns, and so very much more.
Even one of the opponents of the amendment testifying at
the subcommittee hearing, Bruce Fein, described the amendment
as ``a submicroscopic encroachment on free expression * * *''
in response to written questions.
Other witnesses testifying against the amendment implicitly
acknowledged that much of the criticism of the amendment is
overblown. Gene Nichol, Dean of the University of Colorado Law
School testified, ``* * * we have, no doubt, long recognized
limited exceptions to a regime of free expression; at least
some of which present no greater problems of slipperiness than
would a flag desecration law.'' (Written testimony of Gene
Nichol, June 6, 1995, at 1.)
Professor Cass M. Sunstein of the University of Chicago Law
School, a vigorous opponent of the amendment, conceded,
There are reasons to think that as the basic symbol
of nationhood the flag is sui generis and legitimately
stands alone. Moreover, constitutional protection of
the flag would prohibit only one, relatively unusual
form of protest. Multiple other forms would remain
available.
(Written testimony of Cass M. Sunstein, June 6, 1995, at 5.)
Assistant Attorney General Dellinger agreed with these
remarks of Professor Sunstein, in response to written
questions. Indeed, the committee believes Professor Sunstein
understated his first point--there is no doubt the flag stands
alone as a national symbol.
Even if one agreed that the Johnson and Eichman cases were
correctly decided under prior precedents, one could still
support this amendment--if one believes protection of the flag
from physical desecration is an important enough value to
override, in the words of Justice Stevens, the trivial burden
on expression such protection would entail.
4. The American flag deserves legal protection regardless of the number
of flag desecrations in recent years
The administration testified that, in light of what it
refers to as ``* * * only a few isolated instances [of flag
burning], the flag is amply protected by its unique stature as
an embodiment of national unity and ideals.'' (Testimony of Mr.
Dellinger, June 6, 1995, at p. 1.) The committee finds that
comment wrong. In the words of Chairman Hatch:
First, aside from the number of flag desecrations,
our very refusal to take action to protect the American
flag clearly devalues it. Our acquiescence in the
Supreme Court's decisions reduce its symbolic value. As
a practical matter, the effect, however unintended, of
our acquiescence equates the flag with a piece of
common cloth, certainly as a matter of law, no matter
what we feel in our hearts. Anyone in this room can buy
a piece of cloth and the American flag and burn them
both to dramatize a viewpoint. The law currently treats
the two acts as the same. How one can say that this
legal state of affairs does not devalue the flag is
beyond me.
This concern is shared by others. Justice John Paul
Stevens said in his Johnson dissent: ``* * * in my
considered judgment, sanctioning the public desecration
of the flag will tarnish its value * * * That tarnish
is not justified by the trivial burden on free
expression occasioned by requiring that an available
alternative mode of expression--including uttering
words critical of the flag--* * * be employed. [436
U.S. at 437.]
Professor Richard Parker of Harvard Law School
testified after Mr. Dellinger, and in my view,
effectively rebutted his argument.
If it is permissible not just to heap verbal contempt
on the flag, but to burn it, rip it and smear it with
excrement--if such behavior is not only permitted in
practice, but protected in law by the Supreme Court--
then the flag is already decaying as the symbol of our
aspiration to the unity underlying our freedom. The
flag we fly in response is no longer the same thing. We
are told * * * that someone can desecrate ``a'' flag
but not ``the'' flag. To that, I simply say: Untrue.
This is precisely the way that general symbols like
general values are trashed, particular step by
particular step. This is the way, imperceptibly, that
commitments and ideals are lost.''
Second, as a simple matter of law and reality, the
flag is not protected from those who would burn,
deface, trample, defile or otherwise physically
desecrate it.
Third, whether the 45 plus flags whose publicly
reported desecrations between 1990 and 1994 of which we
are currently aware represent too small a problem does
not turn on the sheer number of these desecrations
alone. When a flag desecration is reported in local
print, radio, and television media, potentially
millions, and if reported in the national media, tens
upon tens of millions of people, see or read or learn
of them. How do my colleagues think Rose Lee, for
example, feels when she sees a flag desecration in
California reported in the media? The impact is far
greater than the number of flag desecrations.
(Statement of Senator Orrin G. Hatch, July 20, 1995.)
The committee does not believe there is some threshold of
flag desecrations during a specified time period necessary
before triggering congressional action. Certainly, critics of
the amendment cite no such threshold. If it is right to empower
the American people to protect the American flag, it is right
regardless of the number of such desecrations. And no one can
predict the number of such desecrations which may be attempted
or performed in the future.
Senator Heflin also responds to the criticism that there
are too few flag desecrations to justify an amendment by
adding:
In my judgment, this is the time, in a cool,
deliberate, calm manner, and in an atmosphere that is
not emotionally charged to evaluate values. I think
that is something that makes it appropriate to do it
now. I [believe] that there have to be in this nation
some things that are sacred.
(Statement of Senator Howell Heflin, July 20, 1995.)
5. A so-called ``content neutral'' constitutional amendment is wholly
inappropriate
A few critics of S.J. Res 31 believe that all physical
impairments of the integrity of the flag, such as by burning or
mutilating, must be made illegal or no such misuse of the flag
should be illegal. This ``all or nothing'' approach flies in
the face of nearly a century of legislative protection of the
flag. It is also wholly impractical.
In order to be truly ``content neutral,'' such an amendment
must have no exceptions, even for the disposal of a worn or
soiled flag. Once such an exception is allowed, the veneer of
content neutrality is stripped away.\3\ If such an exception is
not permitted, however, and burning a worn or soiled flag for
disposal purposes is made illegal, the American people would be
subjected to the unacceptable choice of letting worn or soiled
flags literally accumulate, or breaking the law by disposing of
them in a manner already designated by Congress in the flag
code: ``The flag, when it is in such condition that it is no
longer fitting emblem shown for display, should be destroyed in
a dignified way, preferably by burning.'' 36 U.S.C. 176(k).
While the flag code is legally unenforceable, the flag code
represents a traditional and commonly held view of proper
disposal of flags no longer fit for display \4\--one followed
by the National Park Service, for example (The Sun, July 4,
1995.)
\3\ The Texas v. Johnson majority itself pointedly noted: ``If we
were to hold that a state may forbid flag burning wherever it is likely
to enlarge the flag's symbolic role, but allows it whenever burning a
flag promotes that role--as where, for example, a person ceremoniously
burns a dirty flag--we would be saying that when it comes to impairing
the flag's physical integrity, the flag itself may be used as a symbol
* * * only in one direction * * *'' (491 U.S. at 416-417). Of course,
if Congress proposes and the States ratify a constitutional amendment
with such an exception, the Supreme Court would have to uphold the
exception. But the amendment would not be content neutral.
\4\ The suggestion that a worn or soiled flag is no longer a flag,
in an effort to escape the logical inconsistency of a so-called content
neutral amendment which would permit an exception for disposal of such
a flag, is unavailing. Obviously, a worn or soiled American flag is
still a flag, recognizable as such, even if no longer fit for display.
---------------------------------------------------------------------------
As former Assistant Attorney General for Legal Counsel
Charles J. Cooper testified:
The threshold question that must be answered by
proponents of this suggestion is whether anyone really
wants a ``neutral'' flag protection statute. Does
anyone really want to protect the physical integrity of
all American flags, regardless of the circumstances
surrounding the prohibited conduct? Certainly the
constitutional scholars suggesting a 'neutral' flag
protection amendment do not, for they advance the idea
only as a lesser evil than the Flag Protection
Amendment. Nor are supporters of the proposed Flag
Protection Amendment likely to be persuaded that a
``neutral'' alternative would be preferable. The
problem is that a genuinely ``neutral'' flag protection
measure simply doesn't make sense.
The act of burning an American flag is not inherently
evil. Indeed, the Boy Scouts of America have long held
that an American flag, ``when worn beyond repair''
should be destroyed ``in a dignified way by burning.''
Boy Scout Handbook at 422 (9th ed.). Similarly,
Congress has prescribed [such disposal for flags no
longer fit for display]. Nor is the respectful
disposition of an old or worn flag the only occasion on
which burning a flag might be entirely proper. The old
soldier whose last wish is to be cremated with a prized
American flag fast against his breast would be
deserving of respect and admiration, rather than
condemnation.
In contrast, Gregory Lee Johnson's conduct was
offensive--indeed, reprehensible--not simply because he
burned an American flag, but because of the manner in
which he burned it. Yet, a truly neutral flag
protection statute would require us to be blind to the
distinction between the conduct of Gregory Lee Johnson
and his comrades and the conduct of a Boy Scout troop
reverently burning an old and worn American flag. It
would also reach other forms of conduct that honor,
rather than desecrate, the flag. If, rather than
burning an American flag, Gregory Lee Johnson and his
colleagues had heaped dirt upon it in some sort of
anti-American burial ritual, their conduct would
undoubtedly have violated not only the Texas flag
desecration statute, but a ``neutral'' flag protection
statute as well. A ``neutral'' flag protection statute,
however, would also have reached and punished the
conduct of the unidentified patriot who gathered up
Johnson's charred flag and buried it in his back yard.
Moreover, not only would a ``neutral'' flag
protection statute prohibit conduct that should be
praised rather than punished, it would fail to prohibit
an infinite variety of public conduct that casts
contempt upon the flag. Such a statute would prohibit
only conduct that compromises the physical integrity of
the flag. Conduct that is not physically destructive of
the flag, no matter how openly offensive and
disrespectful it may be would presumably not be
reached. Thus, affixing an American flag to the seat of
one's pants or simulating vulgar acts with a flag would
not come within such a prohibition.
Thus, a ``neutral'' flag protection statute is at
once too broad, since it would prohibit conduct that no
one wants to prohibit, and too narrow, since it would
permit conduct that few people want to permit. The
proposal therefore simply does not mesh with the public
sentiment that animated the passage of 48 state flag
desecration statutes and a similar measure by the
Federal Government, that led to the prosecution of
Gregory lee Johnson under the Texas flag desecration
law, that provoked the extraordinary public outcry at
the Supreme Court's reversal of Johnson's conviction,
and that inspired this hearing. I submit that public
sentiment is not 'neutral'; it is not indifferent to
the circumstances surrounding conduct relating to the
flag. If such conduct is dignified and respectful, I
daresay that the American people and their elected
representatives do not want to prohibit it; if such
conduct is disrespectful and contemptuous of the flag,
I believe that they do.
(Testimony, Charles J. Cooper, June 6, 1995.)
A content-neutral amendment would forbid an American combat
veteran from taking an American flag flown in battle and having
printed on it the name of his unit and location of specific
battles, in honor of his unit, the service his fellow soldiers,
and the memory of the lost.
Then Assistant Attorney General for Legal Counsel William
S. Barr testified before the Senate Judiciary Committee August
1, 1989, and brought a certain American flag with him:
Now let me give you an example of * * * the kind of
result that we get under the [content-neutral
approach]. This is the actual flag carried in San Juan
Hill. It was carried by the lead unit, the 13th
Regiment U.S. Infantry, and they proudly emblazon their
name right across the flag, as you see; 1,078 Americans
died following this flag up San Juan Hill.
* * * Under [a content-neutral approach], you can't
have regiments put their name on the flag, that's
defacement * * *
(Testimony, Assistant Attorney General William P. Barr, August
1, 1989, at 68.)
The committee does wish to empower Congress and the States
to prohibit the contemptuous or disrespectful physical
treatment of the flag. The committee does not wish to compel
Congress and the States to penalize respectful treatment of the
flag. A constitutional amendment which would treat the placing
of the name of a military unit on a flag as the equivalent of
placing the words ``Down with the fascist Federal Government''
or racist remarks on the flag is not what the popular movement
for protecting the flag is all about. The committee
respectfully submits that such an approach ignores distinctions
well understood by tens of millions of Americans. Moreover, a
constitutional amendment equating the ceremonial, reverential
disposal of a worn American flag by burning, with the
contemptuous burning of the flag to dramatize this or that
viewpoint is as impractical as it is overbroad.
Moreover, never in the 204 years of the first amendment has
the free speech clause been construed as totally ``content
neutral.'' Professor Parker, who believes in ``robust and wide-
open'' freedom of speech and that it ought to be more robust
than the Supreme Court currently allows in some respects, noted
as much in the context of making a larger point:
My basic proposition is this: Whether freedom of
speech is, in fact, robust and wide-open does not
depend solely, or even primarily, on case-by-case
adjudication by the courts. It depends most of all on
conditions of culture. First, it depends on the
willingness and capacity of people--in our democracy,
that means ordinary people--to express themselves
energetically and effectively in public. Second, it
depends on acceptance as well as tolerance, official
and unofficial, of an extremely wide range of
viewpoints and modes of expression. And, third, it
depends on adherence to very basic parameters that,
like constitutional provisions in general, help
structure democratic life the better to release its
energies.
This last condition is the one that concerns us now.
Everyone agrees that there must be ``procedural''
parameters of free speech--involving, for example,
places and times at which certain modes of expression
are permitted. Practically everyone accepts some
explicitly ``substantive'' parameters of speech content
as well. Indeed, despite talk of ``content-
neutrality,'' the following principle of constitutional
law is very clear: Government sometimes may sanction
you for speaking because of the way the content of what
you say affects other people.
What is less clear is the shape of this principle.
There are few bright lines to define it. The Supreme
Court understands the principle to rule out speech that
threatens to cause imminent tangible harm: face-to-face
fighting words, incitement to violation of law,
shouting ``fire'' in a crowded theater. And it does not
stop there. It understands the principle, also, to rule
out speech that threatens certain intangible, even
diffuse, harms. It has, for instance, described
obscenity as pollution of the moral ``environment.''
But what about ``political'' speech critical of the
government? Isn't there a bright line protecting that,
at least so long as no imminent physical harm is
threatened? The answer is: No. The Court has made
clear, for instance, that statements criticizing
official conduct of a public official may be sanctioned
if they are known to be false and damage the reputation
of the official. There has been no outcry against this
rule. It was set forth by the Warren Court--in an
opinion by Justice Brennan, the very opinion that
established freedom of speech as ``robust and wide-
open.'' [New York Times v. Sullivan, 376 U.S. 254
(1964).] It has been reaffirmed ever since.
Professor Parker also noted:
The bonds that hold us together--and so make it
possible, as in a healthy family, for us to engage in
``robust'' disagreement with on another--appear to be
disintegrating * * *
(Written testimony, Prof. Richard D. Parker, June 6, 1995, pp.
1-3.)
6. Granting States, as well as Congress, power to protect the flag
reflects the constitutional principle of federalism and returns
us to the status quo ante 1989
The States, as well as Congress, are authorized to
legislate protection of the flag from physical desecration
under S.J. Res. 31. Some critics of the amendment believe that
only Congress should be able to legislate protection of the
flag, because it is a national symbol. Concern has been
expressed that a ``patchwork'' of different statutes will
develop.
The committee notes, as mentioned earlier, that only
Congress can set the design of the flag. While States cannot
define the design of the flag, the flag belongs to the people
of the several States as well as to the American people as a
whole.
If Utahns, for example, want to ban only burning and
trampling on the flag as a means of casting contempt on it, and
New Yorkers or Congress or both wish to also ban defacing and
mutilating the flag as a means of physical desecration, the
committee believes New Yorkers and the American people as a
whole should have the right to do so.
This is precisely the situation obtaining prior to 1989.
Congress and 48 States had flag desecration statutes until
1989. Their lack of uniformity presented no threat to the
fabric of our liberties.
Indeed, in restoring power to the States they had held for
200 years, the flag protection amendment reflects the basic
constitutional principle of federalism.
Today, some States make unlawful what other States permit,
across a vast range of human activity. There is nothing new or
startling about this.
Some States legislate the protection of monuments,
tombstones, and historical sites differently than other States.
States regulate the sale and use of alcohol differently from
each other. And on and on.
There is nothing unusual in letting States legislate
protection of the American flag, and there was nothing unusual
about it when 48 States did so before 1989.
The committee further notes that in the area of obscenity,
the Constitution already permits greater local variation in the
definitions of protected and unprotected speech than the
variety of prohibitions against the conduct of physical flag
desecration which would occur under S.J. Res. 31. In order to
decide what materials are obscene, and thus unprotected by the
first amendment, juries are required to determine a) ``whether
the `average person, applying contemporary community standards'
would find that the work, taken as a whole, appeals to the
prurient interest;'' b) ``whether the work depicts or
describes, in a patently offensive way, sexual conduct
specifically defined by the applicable state law;'' and c)
``whether the work, taken as a whole lacks serious literary,
artistic, political, or scientific value.'' Miller v.
California, 413 U.S. 15, 24 (1973) (emphasis added). The Court
explicitly has recognized that this standard may produce
different standards of ``obscenity'' not just at the state
level, but at the local level as well. See Jenkins v. Georgia,
418 U.S. 153 (1974).\5\
\5\ Under the Miller test, States are free to adopt communitywide,
statewide, or even nationwide standards of prurience and patent
offensiveness. Naturally, the Court subjects these standards to review
to ensure that they do not go too far. See Jenkins v. Georgia, 418 U.S.
153 (1974) (no jury could find film Carnal Knowledge to be obscene);
Brockett v. Spokane Arcades, 472 U.S. 491 (1985) (States cannot
classify as ``obscene'' materials which provoke only ``normal and
healthy sexual desires''). But neither expert testimony on community
standards nor jury instructions on the definition of ``community'' or
``contemporary standards'' are constitutionally required. Hamling v.
United States, 418 U.S. 87, 125-27 (1974); Jenkins, 418 U.S. at 157.
Miller's holding that juries may decide for themselves what is
``prurient'' or what violates ``contemporary community standards'' --
subject to a rather light standard of review by the Court--means that a
large amount of diversity in the definition of obscenity is inevitable.
---------------------------------------------------------------------------
Thus, under the Miller test, there may be definitions of
obscenity that vary not only by State, but also by locality.
And these variations pertain to actual speech, not mere
conduct, as is involved in prohibiting physical desecration of
the American flag. Thus, a streetcorner speech or book
protected by the first amendment in New York City may not be
protected in Wilmington, DE; Green Bay, WI; or Provo, UT. Yet,
the committee is unaware of any congressional effort, including
by opponents of the flag protection amendment, to address this
diverse state of affairs.
IV. Vote of the Committee
On July 20, 1995, with a quorum present, by roll call vote,
the committee on the Judiciary voted on a motion to report
favorably S.J. Res. 31. The motion was adopted by a vote of 12
yeas and 6 nays, as follows:
Yeas Nays
Thurmond Biden
Simpson--proxy Kennedy--proxy
Grassley Leahy--proxy
Specter--proxy Simon--proxy
Brown--proxy Kohl
Thompson Feingold
Kyl
DeWine--proxy
Abraham
Heflin
Feinstein
Hatch
V. Text of Senate Joint Resolution 31
joint resolution
Proposing an amendment to the Constitution of the United
States to grant Congress and the States the power to prohibit
the physical desecration of the flag of the United States.
Resolved by the Senate and House of Representatives of the
United States of America in Congress assembled (two-thirds of
each House concurring therein), That the following article is
proposed as an amendment to the Constitution of the United
States, which shall be valid to all intents and purposes as
part of the Constitution when ratified by the legislatures of
three-fourths of the several States within seven years from the
date of its submission by the Congress:
Article --
``The Congress and the States shall have power to prohibit
the physical desecration of the flag of the United States.''
VI. Cost Estimate
In accordance with paragraph 11(a), rule XXVI, of the
Standing Rules of the Senate, the committee offers the report
of the Congressional Budget Office:
U.S. Congress,
Congressional Budget Office,
Washington, DC, July 24, 1995.
Hon. Orrin G. Hatch,
Chairman, Committee on the Judiciary,
U.S. Senate, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
reviewed S.J. Res. 31, a joint resolution proposing an
amendment to the Constitution of the United States to grant
Congress and the States the power to prohibit the physical
desecration of the flag of the United States, as ordered
reported by the Senate Committee on the Judiciaiy on July 20,
1995. We expect that enactment of this resolution would result
in no significant cost or savings to the federal government,
and no cost to state and local governments. Because enactment
of S.J. Res. 31 would not affect direct spending or receipts,
pay-as-you-go procedures would not apply to the bill.
The joint resolution would propose amending the
Constitution to prohibit the physical desecration of the U.S
flag. Enacting this resolution could impose additional costs on
U.S. law enforcement and the court system to the extent that
cases involving desecration of the flag are pursued and
prosecuted. However, CBO does not expect any resulting costs to
be significant. To become effective, two-thirds of the members
of both houses would have to vote to approve the resolution,
and three-fourths of the states would have to ratify the
proposed amendment within seven years.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Susanne S.
Mehlman, who can be reached at 226-2860.
Sincerely,
June E. O'Neill,
Director.
VII. Regulatory Impact Statement
Pursuant to paragraph 11(b), rule XXVI of the Standing
Rules of the Senate, the committee, after due consideration,
concludes that Senate Joint Resolution 31 will not have direct
regulatory impact.
VIII. ADDITIONAL VIEWS OF MR. HATCH
The Committee Report sets forth the case for a
constitutional amendment granting Congress and the States power
to prohibit physical desecration of the flag of the United
States. It fully responds to the principal criticisms of the
amendment. I wish to respond to some of the other criticisms of
the amendment.
the constitution is amendable for a proper cause
A few critics claim the flag protection amendment elevates
the American flag above the Constitution itself and to some
god-like religious status. The amendment does not elevate the
flag above the Constitution or to religious-like status any
more than erecting monuments to Washington and Lincoln, and
legally prohibiting the desecration of those monuments,
elevates Washington and Lincoln--or their monuments--to such
status. The amendment simply restores to Congress and the
states power they had prior to the Supreme Court's
misinterpretation of the First Amendment in 1989. Chief Justice
Earl Warren, and Justices Hugo Black and Abe Fortas, for
example, all believed that Congress and the states had such
power.
The irony of this criticism is that it is opponents of the
flag protection amendment who are treating the Constitution as
sacrosanct. Not even its Framers did that. They knew that the
people may have to amend it and provided for such a possibility
in Article V.
Indeed, many of these same Framers amended it ten times in
1791, and twice more shortly thereafter. Yet, listening to the
Clinton Administration's testimony, presented by Assistant
Attorney General Dellinger on June 6, one would think there is
a time-lock on the document, permitting the people to amend it
only at specified intervals, rather than upon a pressing need:
After the adoption [of the first 12 amendments], we
went half a century before we had the first amendment
to the Constitution. We had the three Civil War
amendments and we went another half century before we
amended it again * * *
(Written Testimony of Assistant Attorney General Walter
Dellinger, June 6, 1995.)
It is difficult to believe that the Clinton Administration
and its allies opposing the flag protection amendment would
have opposed a constitutional amendment banning slavery in 1796
on the grounds that the document had been amended ten times
just five years before, and that it was too fragile to amend
again so soon. Could the opponents of this amendment argue that
if the 19th amendment, granting women the right to vote, had
been brought to Congress 50 years earlier, in 1870, they would
have opposed it because we had just ratified the three great
Civil War Amendments? Of course not.
This notion that there is some kind of arbitrary limit on
when the people can amend their fundamental charter does not
hold up.
So what is the real, underlying position of some of the
opponents of this amendment, certainly, at least, of the
Clinton Administration? It is that protecting the American flag
from physical desecration is not important enough to amend the
Constitution--the Clinton Administration acknowledged as much
in its testimony.
Mr. Dellinger testified, ``But even assuming, for the
moment, that all of the interpretive difficulties of this
amendment could be cured''--difficulties that, in this
Senator's view, are almost entirely in the Administration's
imagination--``it would remain an ill-advised departure from a
constitutional history marked by a deep reluctance to amend our
most fundamental law.'' A flag amendment is simply not one of
those ``great and extraordinary occasions'' for which we should
``resort to the amendment process.'' (Id. at 8, 9).
Some of the academics, lawyers, and editorial writers who
are among the most vociferous opponents of the amendment make
the same basic comment. I respect that opinion, but I
profoundly disagree with it.
And here, in my view, is one of the fundamental mistakes in
accepting their hidebound conclusion: the Constitution, like
the flag, belongs to the entire American people, not just law
professors, not just lawyers, and not just editorial writers.
Thus, exquisitely analyzing and categorizing the basic
kinds of amendments that have been ratified in the past, and
presenting to us rules, theories, and guidance as to what kinds
of amendments are appropriate today, are the type of thing
lawyers and law professors tend to do. Their work is important,
but it is not dispositive.
Many of these same lawyers and academics think it is fine
when they press upon the federal judiciary new and expansive
legal and constitutional theories divorced from the text and
original meaning of our statutes and Constitution. Many think
it is even better when these unelected federal judges accept
their theories.
But let the American people, having been told by lawyers
and law professors that flag burners should keep their newfound
constitutional right, resort to their constitutional right to
press for an amendment to the Constitution to protect their
beloved, unique national symbol, and suddenly they get a series
of condescending civics lectures.
divisiveness?
This Administration scorns the sincere beliefs and values
of tens of millions of Americans when it effectively describes
the grassroots effort that has brought us here as ``turning
[the Constitution] into a forum for divisive political
battles.'' If it has become such a battle, who is responsible
for that? This measure had over 300 Congressional cosponsors
before hardly anyone else inside the Capitol Beltway noticed
it. This has been a bipartisan movement from the start.
Further, criticizing an effort to amend the Constitution
because it ``turns the document into a forum for divisive
political battles'' cannot be intended as a serious argument
against this amendment. Under that theory, we might still be
functioning under the Articles of Confederation. A number of
amendments to the Constitution resulted only after a certain
amount of divisiveness, the Civil War for example. I think the
body politic can absorb disagreement over this amendment. The
difficulty of the amendment process, the difficulty in
obtaining the highly motivated popular support necessary to see
that process through to ratification, serves as a powerful
check on undue resort to the amendment process.
this issue transcends mere legal analysis
What is disappointing to me is that President Clinton
apparently relied so heavily on a narrow legal analysis to come
to a position on a matter which, to most other Americans,
transcends mere legal analysis. Of course, a constitutional
amendment must be carefully drawn and the lawyers must be
consulted. But the desirability of the amendment is hardly a
matter for the lawyers alone.
Another irony is: Mr. Dellinger twice stated that President
Clinton believes Texas v. Johnson is wrongly decided and that
Justice Black was right when he said that states have the right
to protect the flag. How, then, can the President, in the next
breath, claim, through Mr. Dellinger, that an amendment
overturning Johnson--even an ideally drafted amendment from the
Administration's point of view--is ``tampering with the Bill of
Rights?''
If, after 200 plus years of a contrary understanding, the
Court today decides, 5 to 4, that obscenity is protected by the
First Amendment, would President Clinton oppose an amendment
authorizing the prohibition of its sale and distribution? And
if the President felt that the 5-to-4 decision was wrong, would
he view the amendment as tampering with the Bill of Rights, or
just overturning a mistaken judicial interpretation of it?
Would his Administration and its allies be demanding on the
floor of Congress that supporters of the amendment determine in
advance whether this or that hypothetical picture, photograph,
or writing would qualify as ``obscene'' under the amendment?
Moreover, if the President believes Justice Black was
correct, why is his Administration now criticizing the flag
protection amendment on the grounds that it authorizes states,
not just Congress, to protect the flag?
The Clinton Administration cannot have it both ways.
Finally, the Clinton Administration gives us yet another
misguided civics lecture. Noting that many Americans choose to
display the flag proudly, Mr. Dellinger says: ``what gives this
gesture its unique symbolic meaning is the fact that choice is
freely made, uncoerced by the government.'' Nothing in the flag
amendment or any legislation authorized thereunder will coerce
anyone into displaying the flag in any way, respectfully or
otherwise. The meaning of voluntary respectful display of the
flag will be no less under this amendment.
The Clinton Administration apparently forgets that before
1989, these respectful displays occurred under 48 state
statutes and one federal statute protecting the flag. Is the
Clinton Administration seriously suggesting that respect for
the flag in recent decades was lessened by laws banning its
desecration before 1989? Incredibly, the answer is yes. Mr.
Dellinger concluded his testimony with the amazing remark that
if ``respectful treatment of the flag is the only choice
constitutionally available--then the respect paid the flag by
millions of Americans would mean something different and
perhaps something less.'' Really? Did the respect shown the
flag mean something less before 1989? Perhaps in a modern day
constitutional law classroom, but not among tens of millions of
Americans, including most opponents of the amendment, as well.
And I daresay that none of the opponents of the amendment in
this Congress would agree that their respectful treatment of
the flag meant something less at 9:59 a.m. June 21, 1989, than
it did one minute later when the Court announced its Johnson
decision.
I urge my colleagues to support S.J. Res. 31.
IX. ADDITIONAL VIEWS OF MR. THURMOND
I wish to stress three specific aspects of the flag
protection amendment.
First, the American people do not want a so-called
``content-neutral'' flag protection amendment. The American
people are not neutral about their flag. It is perfectly
appropriate for the American people to advocate legislative
protection of their flag from contemptuous or disrespectful
treatment or use of the flag. It should not be necessary to
require that, in order to protect the flag from such physical
desecration, the American people must be barred as well from
reverentially, ceremonially disposing of the flag by burning
it, as the Flag Code suggests.
Some combat units emblazon the name of their unit on a flag
they carried into battle. Congress should not equate this
respectful treatment of a flag with writing racist slogans on
it. Yet, a ``neutral'' flag amendment would treat both the
conduct of the respectful veteran and the racist as the same--
defacing the flag. Americans know better than this--and they
expect more from their elected officials than to equate both
actions.
Second, we must be careful to assure that the language we
send to the States, if ratified, will allow the American people
to prohibit all--not just some--of the contemptuous or
disrespectful treatment they find offensive, if they choose to
do so. Immediately after the Texas v. Johnson decision, I
introduced along with 43 cosponsors a proposed constitutional
amendment to protect the American flag. Our initial proposal
contained language to allow protection from defiling,
desecrating, burning and defacing the flag. Later, we
determined that a better proposal would be to avoid content
neutral language such as burning and defacing. Moreover,
because it is the Constitution we are amending, we should not
risk ratifying an amendment too narrowly drawn. An amendment
which authorizes Congress and the States to enact legislation
to prohibit the act of knowingly defacing or burning the flag
is too narrow. For example, it does not cover trampling or
walking on the flag. It does not cover mutilating the flag. It
does not cover the disrespectful use of the flag. Indeed, such
an amendment is also content-neutral--any knowing ``defacing''
of the flag outlawed under legislation enacted thereunder would
have unintended consequences. For example, a respectful and
ceremonial disposition of the flag would technically be against
the law under a content-neutral statute.
We should trust the people of our States and their elected
State and Federal officials to legislate with the specificity
and care necessary to protect the flag without unduly tying
their hands in the Constitution itself. That is why we must not
succumb to the temptation to be overly specific in this
amendment. The term ``physical desecration'' strikes the right
balance: it is general in that it authorizes legislation
against the range of contemptuous or disrespectful treatment or
use of the flag, yet it is specific in that it is precisely and
only contemptuous or disrespectful treatment or use of the flag
which can be outlawed.
Moreover, any legislation enacted under S.J. Res. 31 as
adopted by the committee must pass muster under the due process
clauses of the 5th and 14th amendments. This requirement
includes that the conduct outlawed by substantially specified.
This is a strong safeguard against unwise legislation.
Third, while only Congress can establish the design of our
flag, the flag belongs to the people of our States as much as
to our people as a whole. Accordingly, we must be careful not
to deny the people of their right to protect the flag through
legislation enacted in their States. The people had this right
until the Supreme Court took it from them in 1989. Forty-eight
States had flag protection statutes on the books, many for a
long time before the enactment of the general Federal flag
desecration statute.
I urge my colleagues to show some faith in the American
people by trusting them to protect Old Glory under the
amendment as it passed the Judiciary Committee.
X. SUPPLEMENTAL VIEWS OF MRS. FEINSTEIN
There seems to be a mind set among some, that if you
support a constitutional amendment to protect the American flag
you are either a) opposed to free speech, b) undermining the
most fundamental tenets of a free society, or c) singing like a
political wind-chime to the popular tune of the day.
In my view, it is exactly this kind of straight-jacketed
thinking that has caused an increasing number of people to move
away from both major political parties.
The fact is, there are intelligent arguments on both sides
of the flag amendment debate. To be sure, just as one who
opposes amending the Constitution to protect the flag should
not be accused of being less than wholly American, one who
supports it should not automatically be accused of engaging in
pseudo-patriotic posturing. For those of us on either side of
this debate, the patriotism and love of country are equally as
strong.
I, for one, support a constitutional amendment to restore
protection to our national flag, and I do so not in deference
to political expediency, but because I believe it is the right
thing to do and have for a long time.
Our national flag has come to hold a unique position in our
society as the most important and universally recognized symbol
that unites us as a nation. No other symbol crosses the
political, cultural and ideological patchwork that makes up
this great nation and binds us as a whole. The evolution of the
American flag as the preeminent symbol of our national
consciousness is as old and as rich as the evolution of our
country itself.
It wasn't until the flag was fired upon at Fort Sumter--in
an overt act of war--that Americans came to look upon the flag
as more than just a symbol of their government. Those shots
fired changed the American spirit from pilgrim to patriot, and
it changed the stars and stripes from a piece of cloth to the
embodiment of what we stand for as a people.
I will never forget the emotion I felt as a child when I
saw that famous photograph by photographer Joe Rosenthal, of
the soldiers raising the American flag at Iwo Jima--capturing
in one moment in time the strength and determination of the
entire nation.
Our history books are replete with the stories of soldiers,
beginning with the Civil War, who were charged with the
responsibility of leading their units into battle by carrying
the flag. To them it was more than a task--it was an honor
worth dying for, and many did. When one soldier would fall,
another would take his place, raise the flag, and press
forward. They would not fail. Their mission was too important;
the honor too great; flag and country too respected to give
anything short of their lives to succeed.
The unique status of the national flag has been supported
by constitutional scholars as diverse as Chief Justices William
Rehnquist and Earl Warren, and Justices John Paul Stevens and
Hugo Black.
Our flag is recognized as unique not only in the hearts and
minds of Americans but in our laws and customs as well. No
other emblem or symbol in our Nation carries with it such a
specific code of conduct and protocol in its display and
handling. Listed below are just a few sections of the relevant
Federal law:
The U.S. flag should never be displayed with the
union down except as a signal of dire distress or in
instances of extreme danger to life or property.
The U.S. flag should never touch anything beneath
it--ground, floor, water or merchandise.
The U.S. flag should never be dipped to any person
or thing.
The U.S. flag should never be carried horizontally,
but it should always be carried aloft and free.\1\
\1\ 36 U.S.C. 176 (1994).
It is my belief that restoring legal protection to our
Nation's flag would not infringe upon our long-standing
tradition of free speech under the First Amendment. Until the
Supreme Court's Texas v. Johnson \2\ decision in 1989, 48 of 50
states had laws preventing the burning or defacing of our
Nation's flag.\3\ I do not believe one can credibly claim that,
over the course of those years, these laws prevented anyone
from speaking out, even against the United States itself, in
the strongest possible terms.
\2\ 491 U.S. 397 (1989) (regarding the constitutionality of the
application of a state statute prohibiting flag burning).
\3\ For example, section 614 of California's Military and Veterans
Code states: ``A person is guilty of a misdemeanor who knowingly casts
contempt upon any flag of the United States or of this state by
publicly mutilating, defacing, defiling, burning, or trampling upon
it.'' Military and Veterans Code, Division 3, Ch. 1, sec. 614. This
statute would likely be held unconstitutional under current law.
---------------------------------------------------------------------------
I do not take amending the Constitution lightly. However,
the Supreme Court's 1989 Johnson decision, and its decision in
United States v. Eichman \4\ in 1990, forced those of us who
want to protect the flag to choose this path. This amendment is
the only way to return the nation's flag to the protected
status I believe it deserves.
\4\ 496 U.S. 310 (1009) (regarding the constitutionality of the
application of a Federal statute prohibiting flag burning).
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In voting for this legislation, however, I extend a
cautionary note. This amendment should not be viewed as a
precedent for a host of new constitutional amendments on a
limitless variety of subjects. The Constitution was designed to
endure through the ages, and for that reason it should not be
amended to accommodate the myriad of issues of the day. My
support of a constitutional amendment to protect the flag
reflects the gravity of my belief in this unique purpose.
from a first amendment perspective, a constitutional amendment on flag
burning may be preferable to a statute
From a First Amendment perspective, a specific
constitutional amendment relating to flag burning may be
preferable to a statute. Harvard Law Professor Frank Michelman
made this point in a 1990 article, ``Saving Old Glory: On
Constitutional Iconography.'' \5\ Although not himself an
advocate of flag-protective prohibitions, Professor Michelman
argued that a well-drafted constitutional amendment related to
flag burning would be preferable to a statute because Supreme
Court review is not required for constitutional amendments.
\5\ 42 ``Stanford Law Review'' 1337 (1990).
---------------------------------------------------------------------------
By contrast, a statute, if challenged, could only survive
if the Supreme Court ultimately determined it to be
constitutional. In other words, the Supreme Court would need to
determine that the statute comported with existing freedom-of-
expression doctrine. In so doing, the Court arguably would need
to develop a rationale that could, in the long term, serve to
justify prohibitions on other kinds of symbolic expression.
In Professor Michelman's words,
[t]he Supreme Court could not sustain the Flag
Protection Act on the ground that it serves a
legitimate and substantial governmental interest
without loosening the category of justifying
governmental interests in a way or ways fraught with
danger to the future constitutional-legal protection of
constitutional freedoms.\6\
\6\ Id., at 1351.
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language of senate joint resolution 31
I realize that, in order to avoid unduly infringing on
legitimate forms of expression, the language of this amendment
should not be vague or overinclusive. Currently, S.J. Res. 31
reads:
The Congress and the States shall have power to
prohibit the physical desecration of the flag of the
United States.
I am concerned that the wording of S.J. Res. 31 is unduly
vague. Because the language is subject to varying
interpretations, I believe that it fails to delineate clearly
the boundaries between permissible and impermissible behavior.
Any vagueness problem will be heightened if criminal penalties
are involved.
The two most troublesome words are ``desecration'' and
``flag.'' Depending on the state law adopted, ``desecration''
could apply to the use of the flag by Olympic athletes, or to
the cutting of flag-patterned cloth by a seamstress. The term
``flag of the United States'' could include various articles of
red, white, and blue clothing. Adding to the potential
confusion, S.J. Res. 31 would allow for 50 separate State
definitions of the word, ``flag.'' This is unnecessary, as the
goal is to protect the flag of our Nation as a whole.
This is why, when the Judiciary Committee held its mark-up
of S.J. Res. 31 on July 20, I offered, and will continue to
recommend, language that is, in my view, more specific and
better defined.
specificity of my proposed substitute amendment
My proposed amendment protects against what it is supposed
to protect against--the burning or defacing of the American
flag. The amendment reads:
The Congress and the States shall have the power to
prohibit the act of knowingly defacing or burning the
flag of the United States.\7\
\7\ Future Federal or state legislation could include language
exempting practices associated with flag disposal. For example: ``This
law does not prohibit any conduct consisting of the disposal of a flag
when has become worn or soiled.''
---------------------------------------------------------------------------
For the purpose of this article of amendment, the
Congress shall determine by law what constitutes the
flag of the United States.
I believe that this language represents a fair compromise
which allows for protection of our national symbol without
jeopardizing our fundamental principles of free speech.
The amendment is limited to very specific actions--flag
defacing or burning. I purposefully omitted vague words like
``mutilate,'' ``desecrate,'' ``defile,'' ``soil,'' and
``trample.'' I believe that these words are overinclusive--they
could serve to punish more behavior than intended.
At the same time, the words I chose are not underinclusive.
They are sufficient to cover all of the undesired activities.
For example, the word, ``deface,'' would include such
activities as trampling, defiling, or mutilating the flag.
According to Websters Dictionary, ``deface'' means to ``mar the
appearance of, or impair the usefulness, value or influence
of.''
Another reason I omitted words like ``defile'' and
``trample'' is that I am concerned that they may encompass more
than just physical acts. ``Defile'' and ``trample'' both have
significant communicative components. In examining the
constitutionality of the Federal Flag Protection Act in the
Eichman \8\ case, the Supreme Court cited definitions of these
words in Webster's Third New International Dictionary. One
meaning of ``defile,'' for example, is ``to rob of chastity.''
\9\ And, according to another definition in Webster's New World
Dictionary, a meaning of trample is to ``to crush, destroy,
hurt, violate, etc. by or as by treading upon.'' \10\
\8\ 496 U.S. 310 (1990).
\9\ Id., at 317, n. 7.
\10\ ``Webster's New World Dictionary: Third College Edition''
(1989).
---------------------------------------------------------------------------
My proposed language also would promote uniformity, giving
Congress the authority to establish a single definition for
``flag,'' rather than allowing for 50 separate State
definitions.
Finally, in contrast to S.J. Res. 31, my amendment is
limited to ``knowing'' conduct. This helps protect against the
prosecution of innocent parties, such as the seamstress or
tailor cutting through flag-patterned cloth.
I believe that this proposal would give the American flag
the protection it deserves, while at same time guarding the
First Amendment principles we revere.
XI. MINORITY VIEWS OF MR. BIDEN
I. The Flag Deserves Protection
Nothing symbolizes what we might call our ``national
spirit'' like the flag. In times of crisis, it inspires us to
do more. In times of tranquility, it moves us to do better. At
all times, it unifies us in the face of our diversity and our
differences.
After the Supreme Court handed down its decision in Texas
v. Johnson, 491 U.S. 397 (1989), invalidating the conviction of
flag burner Gregory Johnson, I joined the overwhelming majority
of my colleagues in a call to action. Notwithstanding my
instinctive First Amendment passions, I felt then--as I do
now--that the flag is special and uniquely deserving of legal
protection. I believe that we should protect the flag as the
singular and unifying symbol of a diverse people in need--in
urgent need, sometimes--of common ground. Like many Americans,
I can see in my mind's eye the picture painted by American
Legion National Commander William Detweiler:
We are a nation born of immigrants, many of whom came
to America with only scant knowledge of our heritage
and our history. Whether they docked at Ellis Island
eighty years ago or landed in Miami yesterday, one of
the first sights they beheld was Old Glory waving
proudly in the air. It was the embodiment of all of
their hopes for a better tomorrow. Although it was not
the flag of their fathers, they knew it would be the
flag of their children, and of their children's
children.
(Written statement of William Detweiler, June 6, 1995, at 5.)
The flag, as Justice Stevens wrote in his Texas v. Johnson
dissent, symbolizes more than nationhood and national unity.
It also signifies the ideas that characterize the
society that has chosen [it] as well as the special
history that has animated the growth and power of those
ideas. * * * [The flag] is a symbol of freedom, of
equal opportunity, of religious tolerance, and of good
will for other peoples who share our aspirations.
491 U.S. at 396-97 (Stevens, J., dissenting).
All of the views expressed in this Report--majority and
minority--evidence respect and love for the flag. But this
shared sentiment does not end the debate over a constitutional
amendment; it marks only where it begins. For this is not a
debate between those who love the flag and those who don't, or
between patriots and rogues. It's a debate about the proper
balance to be struck between our respect for the flag and our
commitment to the Constitution's bedrock values.
In seeking to protect the flag, we must not trample on the
very rights that give meaning to the concept of freedom
Americans treasure. As we contemplate adding a 28th amendment
to the Constitution, we must not lose sight of the First
Amendment and its guiding principles. I believe that we can
protect the flag while not doing damage to core free speech
values--by prohibiting all abuse of the flag without regard to
the message intended by the abuser.
Unfortunately, S.J. Res. 31 does not take this approach.
Instead, as outlined in detail below, the amendment seeks to
protect the flag by impinging on First Amendment rights in a
way never before permitted in our nation. Thus, I cannot
support this constitutional amendment--even as I add my voice
to the many voices on the pages of the majority report--all of
us trying to put to words the shiver we get when we see the
flag--our flag--flying high and proud.
When the full Senate considers this issue, I will offer an
amendment that protects the flag regardless of the intent or
message of the actor--and which thus protects our cherished
First Amendment rights as well.
II. Any Effort To Protect the Flag Should be Viewpoint Neutral
At the heart of the First Amendment lies a very basic
notion: the government cannot muzzle a speaker because it
dislikes what he has to say, or discriminate between your
speech and mine because it agrees with me but not with you.
That sort of viewpoint discrimination is most importantly what
the First Amendment forbids. As the Supreme Court has said:
[A]bove all else, the First Amendment means that
government has no power to restrict expression because
of its message, its ideas, its subject matter, or its
content. * * * The essence of * * * forbidden
censorship is content control.
Police Dept. of Chicago v. Mosley, 408 U.S. 92, 95-96 (1972);
see also FCC v. Pacifica Foundation, 438 U.S. 726, 745 (1978)
(``[I]t is a central tenet of the First Amendment that the
government must remain neutral in the marketplace of ideas'').
Just last term, the Supreme Court forcefully reiterated its
intolerance for viewpoint discrimination in Rosenberger v.
University of Virginia, No. 94-329, slip op. at 7 (U.S. June
29, 1995):
In the realm of private speech or expression,
government regulation may not favor one speaker over
another. * * * When the government targets not subject
matter but particular views taken by speakers on a
subject, the violation of the First Amendment is all
the more blatant.
It was in this spirit--to protect the flag while not doing
violence to the core First Amendment principle of viewpoint
neutrality--that I wrote The Flag Protection Act in 1989. The
Act aimed to safeguard the physical integrity of the flag
across the board--by making it a federal crime (without regard
to the actor's motive) to mutilate, deface, physically defile,
burn, maintain on the floor or ground or trample on an American
flag. An exception was carved out for disposing of the flag
when it became worn or soiled.\1\ The statute focused solely
and exclusively on the conduct of the actor--regardless of any
idea she might have been trying to convey, regardless of
whether she meant to cast contempt on the flag, and regardless
of whether anyone was offended by her actions.
\1\ The majority report would have us believe that viewpoint
neutrality is sacrificed by a law which excepts disposal of a worn or
soiled flag. Not so. The governmental interest at stake here is in the
flag as we all know it--intact and worthy of display. When a flag has
come to the end of its life, our interest is no longer in its
preservation--and so allowing for its customary disposal in no way
detracts from the viewpoint neutrality that we should impose upon its
destruction during its life. At the end of its days, a flag is no
longer The Flag that we aim to protect.
---------------------------------------------------------------------------
The statute was written that way because, in my view, the
government's interest in preserving the flag is the same
regardless of the particular idea that may have motivated any
given act of burning or mutilation. Our interest in the flag is
in the flag itself--as the symbol of our identity as Americans.
The flag's unique place in our national life means that we
should preserve it against all manner of destruction. It
matters not whether the flag burner means to protest a war,
praise a war--or start a barbecue. It is the flag as treasured
symbol--not as vehicle for disagreeable speech--that should be
protected.
As Professor Tribe testified in support of the Act:
The sentiment reflected in a law designed to protect
a physical symbol may often be a sentiment of sympathy
for what the symbol embodies and represents, not a
sentiment of censorship of what the symbol-destroyer
expresses.
(Written statement of Laurence H. Tribe, August 1, 1989, at 5.)
Regrettably, in my view, the Supreme Court, by a 5-to-4
vote, struck down The Flag Protection Act in 1990. U.S. v.
Eichmann, 496 U.S. 310 (1990). Which brings us to where we are
today: face to face with the prospect of adding a 28th
amendment to the Constitution. And though I here part company
with many of my liberal friends--believing as I do that the
flag is worthy of constitutional protection--I nevertheless
must oppose S.J. Res. 31. I oppose this constitutional
amendment because, in my view, it puts the flag on a collision
course with the Bill of Rights.
III. Senate Joint Resolution 31 is Fundamentally Flawed
a. the amendment is not viewpoint neutral
The proposed amendment gives Congress and the 50 states the
power to prohibit the physical ``desecration'' of the flag.
Contrary to the suggestion of the majority, it is not the
ambiguity of the word, but its generally accepted meaning, that
I find so troublesome. Although the amendment itself does not
hazard a definition, the majority report does: ``[d]esecrate
means to treat with contempt, to treat with disrespect, to
violate the sanctity of something; profane.'' Report at 31. See
also Webster's New Collegiate Dictionary (``to violate the
sanctity of: PROFANE; to treat irreverently or
contemptuously''); Black's Law Dictionary (``to violate
sanctity of, to profane, or to put to unworthy use'').
That word--desecration--is so value laden that it gives the
government license to do what the First Amendment most
fundamentally prohibits: to discriminate between speech it
likes and speech it doesn't like. For to determine whether an
action ``desecrates,'' we must first make a value judgment
about what message the actor is trying to communicate. Does he
mean to profane the flag? Does her action treat the flag
irreverently or contemptuously? Is the flag being put to an
unworthy use? When we make those kinds of value judgments, we
are not making the act of flag burning the crime--we are making
the message behind the act the crime.
That is the crux of my objection to this amendment--it
makes not the act, but its message, the crime. And in so doing,
it gives the Congress and the states nearly unbounded authority
to criminalize expressive conduct that the government may find
offensive, annoying or just plain wrong-headed. As Professor
Michael E. Parrish noted:
The proposed [amendment] flies squarely in the face
of the libertarian-egalitarian tradition of
constitutional amendments in this country. It does not
secure or enhance individual freedom; it seeks to
restrict it. It does not limit governmental authority;
on the contrary, it unleashes it. It does not promote
equality or justice; it invites Congress and the state
legislatures to punish those forms of expression and
conduct which offend the sentiments of the majority.
This, the First Amendment forbids.
(Written statement of Prof. Michael E. Parrish, August 14,
1989, at 5.)
Professor Cass R. Sunstein put it simply:
One of the problems with the word ``desecration'' is
that it ``conspicuously calls for criminalization of
protest activity--of criticism of the government--
rather than protecting the flag in a more neutral
manner.''
(Written statement of Prof. Cass R. Sunstein, June 6, 1995, at
6.)
In two rather striking passages, the majority report seems
to suggest that the amendment would require viewpoint
neutrality in both its implementation and enforcement. See
Report at 30 (suggesting that amendment will be governed by
R.A.V. v. City of St. Paul, 112 S.Ct. 2538 (1992), which (as
report concedes) ``requires that the government not
discriminate among flag desecrators based on the points of view
they seek to dramatize by their particular physical
desecration''); id. at 32 (judicial decisions ``effectively
prohibit[] discrimination between desecrators based on
viewpoint'').
Would that it were so. Such a suggestion is belied,
however, not only by the amendment's considerable legislative
history, but by the majority report itself. Indeed, the chief
proponents of the proposed amendment have been unapologetic on
the point--arguing that neutrality is neither desirable nor
sufficient, and pointing to the amendment's lack of neutrality
as one of its most appealing features.
For example, when the Judiciary Committee held an extensive
set of four-day hearings on the amendment in 1989, Assistant
Attorney General William Barr testified that the measure
``would permit the legislatures to focus on the kind of conduct
that is really offensive.'' (Testimony of William P. Barr,
August 1, 1989, at 128) (emphasis added). Mr. Barr testified
that the amendment would give the Congress and states ``wide
latitude to prohibit that conduct toward the flag that they
believe deserved proscription'' (written statement of William
P. Barr, August 1, 1989, at 13); that there are ``an infinite
number of forms of desecration'' (id. at 17); and that states
would have ``substantial discretion'' in fashioning flag laws
(id. at 20).
When the Committee once again convened hearings in 1990,
after the Eichmann decision, the Bush Administration was no
less candid. At those hearings, Acting Assistant Attorney
General Michael Luttig testified that the amendment would give
the government the latitude to punish actions ``only as
intended to cast contempt upon the flag.'' (Testimony of
Michael Luttig, June 21, 1990, at 25.) Indeed, I specifically
asked Mr. Luttig whether it would be permissible under the
amendment to pass laws discriminating between different types
of expression. His response was nothing if not frank: ``That is
correct,'' he said. ``You could punish that desecration which
you thought was intended to be disrespectful toward the flag
and not that [which] in your judgment does not.'' Id.
The majority report also underscores the point: viewpoint
neutrality is neither a goal nor an attribute of the proposed
amendment:
The Committee does wish to empower Congress and the
States to prohibit the contemptuous or disrespectful
physical treatment of the flag. The Committee does not
wish to compel Congress and the States to penalize
respectful treatment of the flag.
(Report at 39.) (Emphasis in original.)
The report approvingly quotes at length the recent
testimony of former assistant attorney general Charles J.
Cooper, including the following:
I submit that public sentiment is not ``neutral;'' it
is not indifferent to the circumstances surrounding
conduct relating to the flag. If such conduct is
dignified and respectful, I daresay that the American
people and their elected representatives do not want to
prohibit it; if such conduct is disrespectful and
contemptuous of the flag, I believe that they do.
(Report at 39.) (Quoting testimony of Charles J. Cooper, June
6, 1995.)
I do not challenge for a moment the factual accuracy of Mr.
Cooper's testimony: all of us, instinctively, are probably more
inclined to punish acts of flag desecration that we consider
disrespectful than those we consider dignified. But that, I
believe, misses the basic constitutional point--indeed, the
genius of the First Amendment. Here in America, the majority by
and large does not get to choose what can and cannot be said by
the minority--or by anyone else, for that matter. And the
government, more importantly, is constitutionally restrained
from deciding what speech is ``good'' and what ``bad.'' \2\ But
that is precisely what the proponents of the amendment say that
it would--should--do. They would have a flag emblazoned with
the slogan ``government is great'' treated differently than one
that says ``government is rotten.'' That, I believe, takes us
down an unchartered and very perilous path.
\2\ The majority rightly points out that the First Amendment's free
speech guarantee is not absolute: obscenity, fighting words, libel,
words that incite imminent lawlessness, and commercial speech are all
circumscribed to varying degrees. But the point is this: those are
entire categories of speech that the Court has accorded less than full
protection--either because they are harmful in and of themselves,
lacking entirely in scientific, literary, political or artistic value,
or false. At no time has the Court given the green light to viewpoint
discrimination within a given category--and said, for instance, that
pro-American fighting words are permissible where their anti-American
counterparts are not, or that it's OK to libel Republicans but not
Democrats.
---------------------------------------------------------------------------
As Professor Tribe stated:
The proponents of [the] amendment work themselves
into a posture where they are advocating what * * * not
any of the conservative Justices of the Court have ever
said we ought to be able to do: censoring the viewpoint
being expressed through a particular act.
(Testimony of Laurence H. Tribe, August 1, 1989, at 160.)
Under this amendment, the states could send to jail the
fringe artist displaying the flag on the floor of an art museum
--while giving its blessing to the veteran who displays the
flag on the ground at a war memorial. The state could arrest
the widow who burns the flag to protest the war that took her
husband's life--while smiling on the widow who burns the flag
in loving memory of her fallen loved one.
I respectfully submit that the proposed amendment, which
endorses--and indeed encourages--this type of viewpoint
discrimination exacts too high a constitutional price for the
protection of the flag. Again, Professor Tribe:
[O]ne of the most profound principles for which our
flag stands--a principle at the core of the First
Amendment--is that government must never prohibit
verbal or symbolic expression simply because society
detests the particular idea or emotion expressed * * *
(Written statement of Laurence H. Tribe, August 1, 1989, at 2.)
Or as Justice Jackson so memorably put it in the flag
salute case of 1943:
The very purpose of a Bill of Rights was to withdraw
certain subjects from the vicissitudes of political
controversy, to place them beyond the reach of
majorities and officials and to establish them as legal
principles to be applied by the courts. * * * If there
is any fixed star in our constitutional constellation,
it is that no official, high or petty, can prescribe
what shall be orthodox in politics, nationalism,
religion or other matters of opinion or force citizens
to confess by word or act their faith therein. If there
are any circumstances which permit an exception, they
do not now occur to us.
Board of Education v. Barnette, 319 U.S. 624, 638, 642 (1943).
Justice Holmes said it this way:
[I]f there is any principle of the Constitution that
more imperatively calls for attachment than any other
it is the principle of free thought--not free thought
for those who agree with us but freedom for the thought
that we hate.
U.S. v. Schwimmer, 279 U.S. 644, 654-5 (1929) (Holmes, J.,
dissenting).
What it boils down to is this: the amendment allows the
government to pick and choose--to make flag burning illegal
only in certain situations, involving only certain
circumstances, and only if carried out by certain people. This
discrimination is precisely--and most profoundly--what the
First Amendment forbids. Any amendment that works such
discrimination does not protect the flag. It censors speech.\3\
\3\ The majority report contends that the amendment will simply
restore to the states the power they had before the Supreme Court
handed down Texas v. Johnson in 1989--and that the states will exercise
their power appropriately. Both as a matter of law and perception,
however, the states will have much more latitude under the amendment.
Prior to Johnson, the states acted within what they believed were the
First Amendment's boundaries. With this new amendment in hand, the
states would not be thus constrained.
---------------------------------------------------------------------------
b. what is a ``flag''?
That the amendment also fails to define the word ``flag''
adds yet another layer of difficulty in interpretation and
application--and opens the door further to inconsistencies
among the states. Again, each state would have considerable
discretion to craft its own definition. And again, the
possibilities are nearly endless. As Assistant Attorney General
Barr testified, the legislatures would be able to criminalize
conduct dealing not only with the flag as we know it, but with
``depictions of the flag, such as posters, murals, pictures,
buttons, and any other representation of the flag.'' (Barr
written statement, August 1, 1989, at 16.) Indeed, Mr. Barr
seemed to favor such a sweeping definition as ``consistent with
the Government's interest in preserving the flag's symbolic
value because it recognizes that the desecration of
representations of the Flag damage that interest as much as
desecration of the flag itself.'' Id.
In testimony this year, Bruce Fein viewed this wide
legislative berth a bit differently:
Defining a ``flag'' within the protective ambit of
the amendment * * * is problematic. Would it include a
flag with 49 stars, or one with 12 stripes? Would a
flag portrayal by a youth in a school art course
qualify? What about a flag whose shape was square
rather than rectangular? In sum, the phrase ``flag of
the United States'' is riddled with ambiguity and wars
with the due process norm that the law should warn
before it strikes.
(Written statement of Bruce Fein, June 6, 1995, at 4.)
Assistant Attorney General Walter Dellinger agreed:
The term ``flag of the United States'' is * * *
unbounded, and by itself provides no guidance as to
whether it reaches unofficial as well as official
flags, or pictures or representations of flags created
by artists as well as flags sold or distributed for
traditional display.
(Written statement of Walter Dellinger, June 6, 1995, at 5.)
So, in Maine, it might be a crime to draw a flag being fed
into a shredding machine. In California, it could be a crime to
wear a sequined dress in the pattern of a flag, or a flag
bikini or tee-shirt. In Mississippi, the legislature might make
it a crime to put a flag decal on the side of a hot dog
machine.
While much is unknown about this amendment, this much is
clear: it will beget a host of differing state laws whose reach
will be limited only by the imagination of legislators and the
political whims of the majority.
c. the amendment fails to treat the flag as a national symbol
This state-by-state approach to flag protection seems to
trouble the majority not at all. Indeed, the majority report
celebrates it:
If Utahns, for example, want to ban only burning and
trampling on the flag as a means of casting contempt on
it, and New Yorkers or Congress or both wish to also
ban defacing and mutilating the flag as a means of
physical desecration, the Committee believes New
Yorkers and the American people as a whole should have
the right to do so.
(Report at 41.)
This sort of disparity between state laws--whether it be
over the meaning of ``desecration'' or ``flag''--is especially
inappropriate where, as here, we're talking about a national
symbol. The point of protecting the flag is to safeguard a
distinctly American emblem, with its capacity to inspire and
unify a disparate and sometimes discordant nation. The flag, I
submit, is a symbol of the nation, not of the states. This
amendment, fostering as it will a crazy quilt of laws all
across the map, misses that most important point, and will be
more divisive than unifying. Why is it any less reprehensible
to burn a flag in Louisiana than in Montana? Why should you be
able to wear a flag tee-shirt in Arkansas, but not in Florida?
Moreover, constitutional rights and principles should know
no geographic boundaries. A Delawarean should not be accorded
greater freedom of speech than his neighbor across the way in
Pennsylvania. A Californian should not have more due process
rights than her cousin up north in Washington. Yet that is what
the proponents of S.J. Res. 31 unabashedly propose. And to
compare, as they do, such disparity in the application of
fundamental rights with examples of local prerogatives
regarding monuments and tombstones belittles both the flag and
the Constitution for which it stands.
If we want to protect the flag, we should have one,
national standard. The Constitution, after all, stands for
broad principles, not a patchwork of 50 different and
idiosyncratic ideas.
III. Conclusion
I agree that we should honor the flag. We should hold it
high in our hearts and in our laws. I believe that we should
have a single, national standard which protects the flag
against all manner of destruction and mutilation.
But we should not, in our effort to honor the flag,
dishonor the Constitution in the process. And that, I believe,
is what this amendment asks us to do. By giving the states the
power to criminalize the physical ``desecration'' of the flag,
it gives them each a license to discriminate between speech
they like and speech they don't. For desecration--like beauty--
is in the eyes of the beholder.
``A regulation of speech that is motivated by nothing more
than a desire to curtail expression of a particular point of
view,'' wrote the Supreme Court, ``is the purest example'' of a
law abridging the freedom of speech. Consolidated Edison C. v.
Public Serv. Comm'n, 447 U.S. 530, 546 (1980). Senate Joint
Resolution 31 is a textbook example of the sort of provision
the Court warned against. We should heed the warning and reject
the amendment.
XII. ADDITIONAL MINORITY VIEWS OF MESSRS. KENNEDY, LEAHY, SIMON, AND
FEINGOLD
I. Introduction
a. the flag of the united states is a source of pride for an entire
nation
Despite the fact that we strongly disagree with our
colleagues who support S.J. Resolution 31 on the necessity of
adopting this restriction on the Bill of Rights, there are many
facts which are not in dispute.
Chief among them is that the flag of this nation holds a
special place in the hearts and minds of nearly all Americans.
In this year we celebrate the fiftieth anniversary of the
sacrifices the men and women of this nation made in defending
freedom and democracy in the Second World War. Each of us has
been touched and inspired by the stories of the men and women
who put their love of country above all else. Their dedication
to our country and the flag is beyond reproach. Furthermore, we
find the act of burning the United States Flag abhorrent and
join our colleagues in condemning each such act. These matters
are not in dispute.
b. a constitutional amendment is not needed to preserve the unwavering
respect americans hold for the united states flag
However, the aforementioned factors, when weighed against
the risks and uncertainty inherent in this proposed amendment,
do not obviate the need to respect and preserve the
Constitution of the United States and in particular, the First
Amendment. While we all agree that the flag is unique and that
the handful of people who burn the flag are worthy of our
scorn, we must also acknowledge that our collective respect for
the flag is not now diminished by the absence of a
constitutional amendment, nor will it be enhanced by adoption
of S.J. Res. 31.
As Senator Kennedy noted in hearings before the Senate
Judiciary Subcommittee on the Constitution, Federalism, and
Property Rights on June 6, 1995:
The American flag will always be revered because of
the nation it symbolizes and because of the
extraordinary sacrifices made by the brave men and
women to preserve the freedoms for which it stands. We
do not need to amend the Constitution to honor the flag
of those who have served it * * *
(Hearing transcript beginning at 7, June 6, 1995.)
The words of Congressional Medal of Honor recipient,
Senator Robert Kerrey of Nebraska, speaking in opposition to
S.J. Res. 31, are compelling and sum up the indisputable fact
that Americans' respect for the flag is not predicated or
conditioned on any factor other than their unique and
individual love of country:
* * * [T]he Constitutional amendment is not necessary
either for the maintenance of democracy or for the
preservation of respect for the flag * * * my
opposition is based upon an inherent belief that the
Government should not enact anything that the people
themselves do not need, and we do not need the
Constitution to be changed, nor indeed do we need
legislation to convince Americans that burning a flag
is wrong.
(Hearing transcript at page 4, June 6, 1995.)
Americans respect and love the flag for deeply individual
reasons--not because the Constitution mandates our respect. The
Majority report on this measure goes to great lengths to
establish that which we readily acknowledge, i.e. Americans
love and respect the United States Flag. However, a
Constitutional amendment to ``protect'' a flag which is already
protected by the unwavering respect of an entire nation is
unwarranted, ill conceived and in our opinion, does
unprecedented damage to the Constitution and the very
principles the flag symbolizes.
II. There is No Evidence To Justify Amending the Bill of Rights for the
First Time in our Nation's History
a. the constitution should be amended only under very limited
circumstances
Despite a myriad of opportunities in the two hundred years
since its adoption, efforts to amend the Constitution have been
successful on only twenty-seven occasions.\1\ Of the twenty-
seven amendments to the Constitution, the first ten, the Bill
of Rights, are the foundations for the freedoms enjoyed by all
Americans. The remaining seventeen amendments have largely been
adopted in response to a specific need--a compelling necessity,
such as abolishing slavery and guaranteeing legal equality
between the races, granting women the right to vote, or
abolishing the poll tax.
\1\ On only thirty-three occasions has Congress approved potential
Constitutional amendments and submitted them to the States for
ratification. According to the Congressional Research Service, 114
Constitutional amendments have been introduced to date in the 104th
Congress. S.J. Resolution 31, was the third Constitutional Amendment
reported out of the Judiciary Committee in the first six months of this
Congress alone. In addition to this resolution, S.J. Res. 1, The
Balanced Budget Amendment, was reported to the Senate on January 24,
1995; S.J. Res. 19, Term Limits, was reported to the Senate on February
9, 1995. There have been 29 Constitutional Amendments referred to the
Judiciary Committee as of September, 1995.
---------------------------------------------------------------------------
Senate Joint Resolution 31 is offered in direct response to
Supreme Court decisions in Texas v. Johnson, 109 S.Ct. 2533
(1989) and United States v. Eichman, 496 U.S. 310 (1990). On
only four occasions in our history has a Constitutional
Amendment been adopted in response to a Supreme Court
ruling.\2\ On at least two of these four occasions, the 14th
and the 26th Amendments, the Amendment was in direct response
to a Supreme Court ruling that limited or denied individual
rights. Senate Joint Resolution 31 constitutes the first time
in our history that the Constitution would be used to limit the
freedoms enjoyed by Americans pursuant to the Bill of Rights--
freedoms which form the cornerstone of our democracy, the First
Amendment. This unprecedented use of the Constitution of the
United States as a limitation on the liberties of all Americans
defies the long established premise that the Constitution is a
limitation on government and not on individuals:
\2\ In 1789, the Eleventh Amendment was adopted to overrule
Chisholm v. Georgia, 2 Dall. 419 (1793). The amendment prevented suits
in Federal court against States by citizens of other States or by
citizens or subjects of foreign jurisdictions. In 1868, the Fourteenth
Amendment was adopted in response to the Dred Scott Case, Scott v.
Sanford, 19 How. 393 (1857). The amendment established that each person
born or naturalized in the U.S. is a citizen and further established
the ``due process'' clause and the ``equal protection'' language which
have been paramount in guaranteeing the individual freedoms of all
Americans. In 1913, the Sixteenth Amendment was adopted to overrule
Pollock v. Farmers' Loan & Trust Co., 157 U.S. 429 (1895) which
declared the attempt of Congress to implement an income tax the
previous year unconstitutional. The Amendment gave Congress the
authority to impose an income tax. Finally, the Twenty-Sixth Amendment,
adopted in 1971, lowered the national voting age to 18. The Amendment
overruled Oregon v. Mitchell, 400 U.S. 112 (1970) which held that
although Congress could lower the voting age in Federal elections,
doing so in all other elections exceeded their authority.
If our Constitution has a fundamental bias it is the
bias of liberty, the presumption of freedom, the desire
to limit the scope of government. This libertarian
assumption informs virtually all of the great
---------------------------------------------------------------------------
amendments adopted since 1790.
(S. Hrg. 101-355, statement of Michael E. Parrish at page 313,
1989.)
The University of Chicago's Llewellyn Distinguished Service
Professor of Jurisprudence, Cass R. Sunstein, testified before
the Constitution Subcommittee that Constitutional amendments
have historically, and should remain, limited to two
categories: ``If there is a serious structural problem or
omission in the document * * * '' or if a ``new moral or
ethical'' understanding calls for an amendment, ``especially if
those understandings involve an effort to include or protect
groups excluded by previous constitutional arrangements.''
(Written testimony of Cass Sunstein at page 2.) The testimony
of Bruce Fein, corroborated the historically narrow basis for
amending the Constitution:
Outside the Bill of Rights, amendments have
customarily been reserved for matters of important
moment related to the political template of the nation:
federalism, the powers of government, political rules
of the game, and participation in the electoral process
* * * The ill-fated Prohibition Amendment deviated from
this time-honored custom, and we should learn from that
example.
(Written testimony of Bruce Fein, beginning at page 3.)
The need and responsibility to preserve the historic
integrity of the Constitution was echoed by Senator Kennedy
when he pointed out that the Constitution ``should not be
treated as a billboard on which to plaster the bumper sticker
slogan of the moment. [E]very problem in our society cannot be
solved by a constitutional amendment.'' (Hearing transcript at
page 6, June 6, 1995.)
As is the case with any proposed amendment to the
Constitution, we must, out of respect for historic precedent,
as well as common sense, acknowledge that the Constitution
should be amended only in circumstances where it is truly
necessary. To abandon this premise is to ignore not only our
past history of amendment, but also the guidance of the Framers
who reserved amendment for great and extraordinary occasions.
James Madison noted the importance of an amendment process
which guards ``equally against that extreme facility, which
would render the Constitution too mutable; and that extreme
difficulty, which might perpetuate its discovered faults.''
(The Federalist Papers, No. 43, Rossiter, editor at 278
(1961).) The potential for each and every issue giving rise to
Constitutional amendment and the detrimental effect that would
have on the republic was clearly of concern to the Framers:
[A]s every appeal to the people would carry an
implication of some defect in the government, frequent
appeals would, in great measure, deprive the government
of that veneration which time bestows on everything,
and without which perhaps the wisest and freest
governments would not posses the requisite stability.
(The Federalist Papers, No. 49, Rossiter, editor at 314
(1961).)
The proposed Amendment is a marked and unwise departure,
not only from this nation's history of caution and restraint in
amending the Constitution, but also from the noble and historic
precedent that the United States Constitution protects freedoms
instead of limiting them. Perhaps even more troubling is that
this attempted departure occurs in the absence of any
sustainable justification.
b. the proponents have failed to provide any evidence that incidents of
flag burning justify an amendment to the constitution
Incidents of flag burning cannot, by any measure, be deemed
epidemic. Nor is there any evidence suggesting that such an
epidemic is forthcoming. Analysis conducted by the
Congressional Research Service indicates that since the Supreme
Court handed down Texas v. Johnson in 1989, there have been
relatively few incidents of flag burning. While each of these
instances may be deserving of our collective condemnation, they
are not a sufficient basis for amending the United States
Constitution.
Not only have the proponents of this resolution failed to
show a compelling need for this amendment, they have seemingly
abandoned a showing of necessity as a prerequisite to amending
the Constitution. In fact, written testimony submitted in
support of the resolution argued that flag burning `` * * * is
a problem even if no one ever burns another American flag.''
(Written testimony of William Detwiller at page 2.)
The accompanying Majority views concur, stating that,
``[t]he committee does not believe there is some threshold of
flag desecrations during a specified time period necessary
before triggering congressional action.'' (Report at 37.) We
should not endeavor to amend the guiding document of this
nation on the basis of speculation that something may or may
not occur.
Never before has the Bill of Rights been altered by a
Constitutional amendment. The consequences of being the first
Congress in our history to override the Founding Fathers and
amend the Bill of Rights, and to do so absent any necessity,
should not be overlooked. As Walter Dellinger stated:
Whether in the future some set of truly exigent
circumstances might justify tampering with the Bill of
Rights is a question we can put to one side here. For
you are asked to assume the risk inherent in a first-
time edit of the Bill of Rights in the absence of any
meaningful evidence that the flag is in danger of
losing its symbolic value.
(Written testimony of Walter Dellinger at page 2.)
The Dean of the University of Colorado School of Law, Gene
R. Nichol concurred:
Our Federal charter has rarely been amended to
address temporary or symbolic problems. It has rarely
been amended merely to make a statement, and if a
statement is to be made, I think there would be a real
reluctance to be the first American Congress to
successfully amend the First Amendment.
(Hearing transcript at page 106, June 6, 1995.)
The instances in our history which have justified amending
the Constitution have been few. If there is a consistent strain
running throughout the history of this great document it is
that for over two centuries it has served as the guiding
framework of individual freedoms and that framework should be
altered only in the face of a compelling necessity. As Bruce
Fein stated, the burden of persuasion is on the proponents to
justify this amendment, and:
* * * to show a compelling need, which has not been
done. Mollifying a swell of public opinion falls far
short of that standard. Socrates, it should be
remembered, was sacrificed at the alter of public
opinion, and history has treated him more kindly than
his persecutors.
(Written testimony of Bruce Fein at page 5.)
In the present case the burden of necessity has not been
met to justify altering, for the first time ever, the First
Amendment and the Bill of Rights.
III. Senate Joint Resolution 31 is an Unprecedented Restriction on the
Bill of Rights
a. the first amendment, as cornerstone of individual freedom in this
nation, protects above all that expression with which society disagrees
or finds objectionable
At the heart of this debate is the proper scope of the
guarantee of free speech embodied in the First Amendment to the
Constitution. While it is certainly true that all individual
rights guaranteed by the Constitution are important aspects of
our democratic way of life, the right to engage in speech
without the fear of government intervention or censor,
regardless of your particular political beliefs and regardless
of how objectionable those views may be to the remainder of
society, is one of the most important.
It is paramount in consideration of this amendment to have
a clear understanding of the holding of Texas v. Johnson, 109
S.Ct. 2533 (1989), and the Constitutional underpinnings which
led an ideologically diverse majority consisting of Justices
Brennan, Scalia, Marshall, Blackmun and Kennedy to affirm the
Texas Court of Criminal Appeals finding that the Texas statute
was unconstitutional.
In 1988, Gregory Johnson was arrested and charged under the
Texas statute which makes it a misdemeanor to intentionally or
knowingly desecrate a venerated object, which includes a state
or national flag (Texas Penal Code Ann. Sec. 342.09 (1989).)
The Constitutionality of the Texas statute ultimately turned
upon the state's definition of ``desecrate:''
[to] * * * deface, damage, or otherwise physically
mistreat in a way that the actor knows will seriously
offend one or more persons likely to observe or
discover his action.
Id., emphasis added.
The Supreme Court held that Johnson's actions constituted
``expression'' entitled to Constitutional protection. It did so
consistent with a long established precedent that the First
Amendment protects certain conduct provided it is imbued with
sufficient communicative elements.\3\ As it pertains to conduct
regarding flags, the Supreme Court has historically had
``little difficulty identifying an expressive element.'' 109
S.Ct. at 2539.\4\ The Court has not, however, deemed all
conduct relating to the flag to be expression, deferring
instead to a case by case determination.
\3\ The threshold determination is whether ``an intent to convey a
particularized message was present and whether the likelihood was great
that the message would be understood by those who viewed it,'' Spence
v. Washington, 418 U.S. 405 at 410-411 (1974). See also, Tinker v. Des
Moines Independent Community School District, 393 U.S. 503 (1969);
Brown v. Louisiana, 383 U.S. 131 (1966); Schacht v. United States, 398
U.S. 58 (1970); Food Employees v. Logan Valley Plaza, Inc., 391 U.S.
308 (1968).
\4\ See also, Stromberg v. California, 283 U.S. 359, (1931); Smith
v. Goguen, 415 U.S. 566 (1974); West Virginia Board of Education v.
Barnette, 319 U.S. 624 (1943).
---------------------------------------------------------------------------
Gregory Johnson burned a flag at a political demonstration
outside the Republican National Convention in opposition to the
nuclear arms policies of the Reagan Administration. In the
words of Justice Brennan, ``[t]he expressive, overtly political
nature of this conduct was both intentional and overwhelmingly
apparent.'' Id., at 2540. In fact, the State of Texas conceded
that Johnson's conduct was indeed expressive. Id.
With the issue of the expressive nature of the conduct
settled, of critical importance was whether or not the Texas
statute was related or unrelated to the suppression of that
expression. This distinction is critical to First Amendment
jurisprudence:
A law is ``related to the suppression of free
expression'' if it expressly restricts the
communication of particular messages or if it restricts
speech because of the reactions of others to the
content of the message conveyed. A law is ``unrelated
to the suppression of free expression'' if it applies
wholly without regard to the content of the message
conveyed.
(S. Hrg. 101-355, statement of Prof. Geoffrey R. Stone, at page
190, 1989.)
The Court found that the statute was in fact directed at
suppressing expression because the statute did not sanction all
actions which encroached upon the integrity of the flag.
Relying on the Texas statute itself the Court held:
The Texas law is thus not aimed at protecting the
physical integrity of the flag in all circumstances,
but is designed instead to protect it only against
impairments that would cause serious offense to others.
Texas concedes as much: section 42.09(b) reaches only
those severe acts of physical abuse of the flag carried
out in a way likely to be offensive. The statute
mandates intentional or knowing abuse, that is, the
kind of mistreatment that is not innocent, but rather
is intentionally designed to seriously offend other
individuals.
109 S.Ct. 2543, footnote omitted.
Therefore, the statute was clearly related to free
expression because, ``[w]hether Johnson's treatment of the flag
violated Texas law thus depended on the likely communicative
impact of his expressive conduct.'' Id.\5\
\5\ Texas unsuccessfully argued its interest in preserving the
peace and maintaining the integrity of the flag was sufficient to
overcome the Constitutional barrier. 109 S.Ct. 2541.
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In upholding the Texas Court of Criminal Appeals decision
to strike down the Texas statute, Justice Brennan detailed the
proud history of free expression which has marked this nation's
history since its inception over two hundred years ago:
If there is a bedrock principle underlying the First
Amendment, it is that the Government may not prohibit
expression of an idea simply because society finds the
idea itself offensive or disagreeable. We have not
recognized an exception to this principle even where
our flag has been involved.
Id., at 2544, citations omitted.\6\
\6\ The suggestion that this point is novel or was crafted solely
for the benefit of Gregory Johnson is dispelled by the fact that
Justice Brennan cites no less than thirteen prior Supreme Court cases
relying upon this principle.
---------------------------------------------------------------------------
Brennan continued:
To conclude that the Government may permit designated
symbols to be used to communicate only a limited set of
messages would be to enter territory having no
discernible or defensible boundaries. Could Government,
on this theory, prohibit the burning of state flags? Of
copies of the Presidential seal? Of the Constitution? *
* * There is moreover, no indication--either in the
text of the Constitution or in our cases interpreting
it--that a separate juridical category exists for the
American flag alone. Indeed, we would not be surprised
to learn that the persons who framed our Constitution
and wrote the Amendment that we now construe were not
known for their reverence for the Union Jack. The First
Amendment does not guarantee that other concepts
virtually sacred to our Nation as a whole--such as the
principle that discrimination on the basis of race is
odious and destructive--will go unquestioned in the
marketplace of ideas. We decline, therefore, to create
for the flag an exception to the joust principles
protected by the First Amendment.
Id., at 2546, citations omitted, emphasis added.
Finally, the Court recognized that in the face of a flag
burner, the strongest response is adherence to the
Constitutional principles the flag represents and not retreat
from those principles:
We can imagine no more appropriate response to
burning a flag than waving one's own, no better way to
counter a flag-burner's message than by saluting the
flag that burns, no surer means of preserving the
dignity even of the flag that burned than by--as one
witness here did--according to its remains a respectful
burial. We do not consecrate the flag by punishing its
desecration, for in so doing we dilute the freedom that
this cherished emblem represents.
Id., at 2547, emphasis added.
Contrary to the impression some have created, the Johnson
holding is premised upon constitutional principles settled long
before Gregory Johnson burned the flag. While many may disagree
with the outcome, as is their Constitutional right, Johnson was
not a new or divergent interpretation of the First Amendment.
Following Johnson, the Flag Protection Act of 1989 was
passed into law. (103 Stat. 777, 18 U.S.C. 700 (1990).) The
Supreme Court, in United States v. Eichman, 496 U.S. 310 (1990)
declined to reconsider Johnson in declaring the Flag Protection
Act unconstitutional. The 1989 Act provided:
(a)(1) Whoever knowingly mutilates, defaces,
physically defiles, burns, maintains on the floor or
ground, or tramples upon any flag of the United States
shall be fined under this title or imprisoned for not
more than one year, or both
(2) This section does not prohibit any conduct
consisting of the disposal of a flag when it has become
worn or soiled.
Id., at 314.
The Government contended that the 1989 Act was unlike the
Johnson statute because it did not target expressive conduct
premised upon the content of its message and therefore
regulated expression in a neutral, constitutional manner. Id.,
at 315. Recall that the Texas statute prohibited only conduct
which the actor knew would offend others. Just as they had done
in Johnson however, the Government conceded that the conduct in
question was expressive. Therefore, in the Court's view, the
only question raised by Eichman was, ``whether the Flag
Protection Act is sufficiently distinct from the Texas statute
that it may constitutionally be applied to * * * '' expressive
conduct. Id. The Court held it was not:
Although the Flag Protection Act contains no explicit
content-based limitation on the scope of prohibited
conduct, it is nevertheless clear that the Government's
asserted interest is ``related to the suppression of
free expression'' and concerned with the content of
such expression. 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. For
example, the secret destruction of a flag in one's own
basement would not threaten the flag's recognized
meaning. Rather, the Government's desire to preserve
the flag as a symbol for certain national ideals is
implicated ``only when a person's treatment of the flag
communicates [a] message'' to others that is
inconsistent with those ideals.
Id., citations and footnotes omitted.
The Court also noted that the statute's prohibited actions,
with the possible exception of the term ``burns,'' lead to the
undeniable conclusion that the statute focused solely upon that
conduct which would be deemed disrespectful. In sum, the Court
held that the semantic distinction between the statutes was one
without a difference:
Although Congress cast the Flag Protection Act in
somewhat broader terms than the Texas statute at issue
in Johnson, the Act still suffers from the same
fundamental flaw: it suppresses expression out of
concern for its likely communicative impact.
Id., at 317.\7\
\7\ The Court noted that the wider scope of the Act did not obviate
the need to ``consider the content of the regulated speech'' in
determining if the State's restriction is justified. Id., citations
omitted.
Eichman, therefore, reaffirmed the holding in Johnson that
Government cannot suppress expression based upon the content of
that expression. Despite the fact that the 1989 Act was cast in
more neutral terms than the Texas statute, the Government's
interest still suffered from the fatal flaw of suppressing
expression based upon its message. Following these two
decisions, there can be no doubt that the Constitution of the
United States prohibits content-based restriction. This point
reiterated by Eichman, the proponents now seek to change the
Constitution.
b. senate joint resolution 31 restricts individual rights currently
held pursuant to the first amendment
Despite assertions to the contrary, if the proponents'
intent is carried out, this amendment will undoubtedly restrict
the First Amendment protections currently enjoyed by Americans.
Arguments are repeatedly made that the amendment does not amend
the First Amendment, yet in the accompanying views, the
proponents of S.J. Res. 31 claim that their amendment creates
``that separate juridical category'' which the Supreme Court
has explicitly held does not exist.\8\ In the Committee's own
words: ``Simply put, this amendment creates that `separate
juridical category' for the flag in the Constitution's text * *
* '' (Report at 26.) Therefore, at the same time proponents
argue that the First Amendment remains unchanged, they create
an explicit exception to the First Amendment for expressive
conduct involving the flag of the United States.
\8\ Justice Brennan for the Court; ``There * * * is no indication--
either in the text of the Constitution or in our cases interpreting
it--that a separate juridical category exists for the American flag
alone.'' Johnson at 2546.
---------------------------------------------------------------------------
Equally futile is the argument that because S.J. Res. 31
will become a new and separate amendment, in effect, the
Twenty-eighth Amendment, it is a ``unique exception'' to the
First Amendment which does not undermine freedom of speech.
(Written testimony of Richard D. Parker at page 7.) Regardless
of where within the physical structure of the Constitution this
amendment is placed, by the proponent's own words, it creates a
separate ``category'' of First Amendment rights. How this
amendment can be classified as an ``exception'' or a ``separate
juridical category'' and not be deemed to change the scope of
the First Amendment defies explanation under either of these
theories.
As noted above, the fatal flaw in Johnson was that the
Texas statute sought to punish only people whose conduct was
determined to ``cause serious offense to others.'' The Court
found this to be a prohibited content-based suppression of free
expression. Furthermore, the Federal Statute in Eichman was
found to be directed at the content of the suppressed
expression as well. In delineating the flaws in a possible
content-neutral alternative to S.J. Res. 31, the Majority views
explicitly state their intention to violate the constitutional
principle against content-based restriction be it explicitly or
otherwise:
The Committee does wish to empower Congress and the
States to prohibit the contemptuous or disrespectful
physical treatment of the flag. The Committee does not
wish to compel Congress and the States to penalize
respectful treatment of the flag.
(Report at 39, emphasis included in original.)
The Constitutional principles utilized in Johnson and
Eichman, to strike down content-based restrictions were not the
product of judicial activism on the part of the majority. As
Professor Sunstein noted:
Indeed, offense at the content of ideas--even hateful
ideas--is a classic case of prohibited basis for
regulating speech under the Constitution. That is, I
think, why Justice Scalia, no enthusiast for judicial
activism or for freewheeling use of the Constitution,
joined the majority * * *
(Written testimony of Cass Sunstein at page 3.) \9\
\9\ The majorities in Johnson and Eichman, by any standard, cut
across all ideological lines containing such diverse jurists as the
late Justice Thurgood Marshall and Justice Antonin Scalia as well as
Justices Brennan, Blackmun and Kennedy.
The principles utilized by the Johnson and Eichman Courts
are well established and have developed throughout our history.
The notion that government should not suppress speech based
upon content is a fundamental principle at the very core of our
freedoms. The Committee's desire to sanction conduct based upon
the relative offensiveness of that conduct goes far beyond
overturning Johnson or Eichman--it stands the First Amendment
as we know it, on its head.
Furthermore, to suggest that the Constitution of the United
States should prohibit that speech which society finds
contemptuous or disrespectful is to ignore the inescapable fact
that this nation was born of dissent. One need look no further
than the Boston Tea Party for evidence that the founders were
hardly engaging in conduct which could be termed respectful by
the ruling British. The Supreme Court has long held that a
Constitution that protects only that speech with which we all
agree is a hollow charter at best:
* * * [W]e apply the limitations of the Constitution
with no fear that freedom to be intellectually and
spiritually diverse or even contrary will disintegrate
the social organization * * * Freedom to differ is not
limited to things that do not matter much. That would
be a mere shadow of freedom. The test of its substance
is the right to differ as to things that touch the
heart of the existing order.
(Street v. New York, 394 U.S. 576, (1969) quoting Board of
Education v. Barnette, 319 U.S. 624 (1943) emphasis added.)
\10\
\10\ In Street v. New York, a defendant was convicted under a
statute punishing desecration ``by words or act'' when he burned a flag
and uttered contemptuous words. Without consideration of his burning
the flag, the conviction was overturned because it may have been
premised upon the words he spoke and the government could not provide a
valid interest to sustain the conviction based upon verbal contempt for
the flag. In Barnette, the Court held that requiring unwilling
schoolchildren to salute the flag violated the right to free
expression.
As a nation we have grown and prospered as a result of
dissent. The Civil Rights movement or the Suffrage movement are
but two compelling examples of this fact. If our system of
government and our society is to continue to define freedom and
democracy throughout the world, it must, as a threshold be a
system open to free and diverse debate--that is what separates
us from oppressive nations across the world.\11\ The value of
dissent in our democratic society was stated explicitly by the
Supreme Court in 1949:
\11\ The distinction was never more evident, nor more striking,
than in the headlines of the New York Times the morning after the Court
decided Texas v. Johnson. One headline read; ``Justices, 5-4, back
protestors right to burn the flag.'' In an adjacent column another
headline read; ``Chinese execute 3 in public display for protest
role.'' (New York Times, June 22, 1989, page one.)
* * * [A] function of free speech under our system of
government is to invite dispute. It may indeed best
serve its high purpose when it induces a condition of
unrest, creates dissatisfaction with conditions as they
---------------------------------------------------------------------------
are, or even stirs people to anger.
Justice Douglas, Terminello v. Chicago, 337 U.S. 1, (1949) \12\
\12\ Cited also in Johnson, 109 S.Ct. 2533 at 2541 (1989).
As a free society we have endured dissent and opposing
views, including flag burning, throughout our history. We have
endured flag burning in times of war and in times of peace, in
times of growth and in times of depression, in short, in good
times and bad. Our Constitutional system provides for dissent
and that should give us all comfort for in protecting dissent,
it also provides for the preservation of our individual right
---------------------------------------------------------------------------
to express ourselves freely. Professor Sunstein cautions:
It is far easier to live with the First Amendment as
a slogan or an abstraction than it is to accept it when
we are confronted, concretely, with speech that seems
genuinely despicable or offensive. When one sees, close
up, the hate speech of the Ku Klux Klan, or Nazis
marching in Skokie, or right-wing or left-wing
militants * * * the commitment to the speech ``we
hate'' might seem a bit pale and abstract, and perhaps
easily dispensed with in the particular case. But in
this natural instinct lies a serious risk of danger;
the erosion of our most fundamental liberty. For if
flag-burning is to be prohibited, and if a
Constitutional amendment is to be approved, it will not
be easy to draw the line between that activity and
other sorts of political expression that are also
thought by many or most citizens to be harmful or
offensive. In a pluralistic society, tolerance and
open-mindedness are the watchwords of freedom.
(Written testimony of Cass Sunstein beginning at page 3.)
The proposed resolution is directed specifically at
expression which might offend other people. In so doing, this
resolution disregards the history of the First Amendment and
the history of this nation--it is clearly a limitation on the
freedoms currently held by all Americans.
c. existing constitutional limitations on freedom of expression are
applicable to instances of flag burning
It is important to note that the Johnson Court held that
existing Constitutional limitations on freedom of expression
would, given the presence of the necessary facts, be applicable
to incidents of flag burning. Under particular circumstances
freedom of expression can be, and has been, subject to
limitation. It is well settled doctrine that expression which
is directed to inciting or producing ``imminent lawless
action,'' may be limited. Brandenburg v. Ohio, 395 U.S. 444
(1969). Furthermore, words classified as ``fighting words'' or
those words likely to spur an average citizen to fight may be
restricted. Chaplinsky v. New Hampshire, 315 U.S. 568 (1942).
These limitations, wholly appropriate responses to
violence, both actual and potential, are applicable in cases of
flag desecration just as they are in any other case involving
expression. In fact, Supreme Court precedent is very clear that
flag desecration which could be classified under either the
Brandenburg or Chaplinsky tests, is not worthy of First
Amendment protection. The facts in Johnson failed to provide
any evidence that a breach of the peace was imminent or that
Johnson's action was, ``an invitation to fisticuffs.'' 109
S.Ct. at 2542. However, while the Court noted that every flag
burning is not a per se potential breach of the peace:
[t]he State need not worry that our holding will
disable it from preserving the peace. We do not suggest
that the First Amendment forbids a State to prevent
``imminent lawless action.''
Id.
Thus, just as Johnson was decided based upon long-standing
First Amendment principles, so too does the State maintain
certain rights pursuant to well defined constitutional
doctrine. If warranted by the facts, flag burning or any form
of expression for that matter, may be regulated to avert
imminent lawless action or a breach of the peace. It cannot,
however, be suppressed solely because the broader society finds
it objectionable and remain consistent with the U.S.
Constitution.
IV. Senate Joint Resolution 31 is Vague and its Effect on the
Constitutional Rights of Americans is Uncertain
Beyond the fact that we should maintain this nation's
historic reverence for the integrity of the Constitution,
problems inherent in the drafting of the proposed amendment
counsel caution. The proposed language will subject the
fundamental rights of Americans to a myriad of unclear and
divergent interpretations as to the limits of those rights. The
language of S.J. Res. 31 is as follows:
The Congress and the States shall have power to
prohibit the physical desecration of the flag of the
United States.
While obviously attempting to ``empower'' Congress and the
States to enact statutes prohibiting desecration of the flag,
the resolution provides no guidance whatsoever as to the
parameters of the power. The practical difficulties with this
resolution are apparent from the outset. For example, how is
the term ``flag'' to be defined? In the words of Bruce Fein:
Defining a ``flag'' within the protective ambit of
the amendment, however, is problematic. Would it
include a flag with 49 stars, or one with 12 stripes?
Would a flag portrayal by a youth in a school art
course qualify? What about a flag whose shape was
square rather than rectangular? In sum, the phrase,
``flag of the United States'' is riddled with ambiguity
and wars with the due process norm that the law should
warn before it strikes.
(Written testimony of Bruce Fein at page 4.)
We note that at the outset of their accompanying views, the
proponents include a lengthy discussion of the many different
flags which have flown proudly over this nation throughout our
history. Ironically, it is unclear if this amendment will
protect all of these flags from desecration--or none of them.
The parameters of what constitutes or potentially
constitutes a flag for purposes of this amendment are
limitless. Assistant Attorney General Walter Dellinger noted in
his testimony that in 1989, then-Assistant Attorney General
William Barr, testifying in support of the amendment,
acknowledged that the flag could mean many different things:
* * * then Assistant-Attorney General William Barr
acknowledged that the word ``flag'' is so elastic that
it can be stretched to cover everything from cloth
banners with the characteristics of the official flag,
as defined by statute, to ``any picture or
representation'' of a flag, including ``posters,
murals, pictures, [and] buttons.''
(Written testimony of Walter Dellinger beginning at page 5.)
Ironically, the Majority views on potential interpretations
track closely the explanation given by Mr. Barr six years ago.
However, proponents choose to downplay the seemingly endless
range of potential definitions by simply acknowledging that,
``* * * there is some flexibility in the legislative bodies in
defining the term ``flag of the United States.'' (Report at
31.)
Equally as troubling and potentially more dangerous is the
lack of guidance as to what ``desecration'' entails. Mr. Fein
properly asks:
Its ordinary meaning is the divesting of the sacred
or hallowed character of the flag. But would that
include writing on the flag ``This nation cherishes
freedom of expression.'' ? Would it include flying the
flag over a brothel? Would it include writing
``Benedict Arnold'' across the stars?''
(Written testimony of Bruce Fein at page 5.)
The simple answer to Mr. Fein's question is that nobody
knows. According to the Majority views the term is not
ambiguous and means ``* * * to treat with contempt, to treat
with disrespect, to violate the sanctity of something;
profane.'' (Report at 31.)
This response does little to eliminate the vagueness and
ambiguity that pervade this proposed amendment. Notwithstanding
the proponents' interpretation of desecration, value judgments
remain necessary to determine what is and is not acceptable.
Clearly, respect, contempt and sanctity are all subject to the
eye of the beholder. For example, in Spence v. Washington, 418
U.S. 405 (1974), a Washington man was arrested and charged for
attaching a ``peace symbol'' to his flag following the invasion
of Cambodia and the incident at Kent State. When asked the
basis for attaching the peace symbol to the flag the man
replied:
I felt there had been so much killing and that this
was not what America stood for. I felt that the flag
stood for America and I wanted people to know that I
thought America stood for peace.
Id., at 408.
Under the proposed statute was his action contemptible,
disrespectful, or in violation of the sanctity of the flag? Was
he desecrating the flag or was he seeking to motivate his
fellow Americans to a higher purpose?
It is obvious by the Majority's own admission that not
every person who ``desecrates'' the flag is intended to be
subject to prosecution. Ultimately, a decision must be made so
that the Committee's desire ``not to compel Congress and the
States to penalize respectful treatment of the flag,'' can be
carried out. (Report at 39.) However, as Spence illustrates the
distinction is not so simple. No one can say, not even the
proponents, what these terms will mean in application.
Furthermore, it is far from clear what effect this
amendment will have on the remainder of the Constitution. For
example, does the newly created ``power'' given to Congress and
the States supersede just the First Amendment? Or are other
protections in the Constitution, such as the Fourth and
Fourteenth Amendments implicated? While the discussion above
makes it clear the proposal attempts to limit the First
Amendment, does the proposed resolution, absent a specific
reference to the First Amendment, remain subject to the
existing parameters of that Amendment? While the proponents are
quick to characterize these legitimate inquiries as a ``parade
of horribles'' we do not think it is too much for the American
people to ask the elected officials who propose this amendment,
exactly how they intend to limit their constitutional rights.
(Report at 32.)
Beyond the clear definitional problems of S.J. Res. 31,
this amendment will for the first time in our history apportion
fundamental rights based upon geography. In response to
concerns over the vagueness of the amendment, the proponents
argue that states will make independent determinations of what
conduct and expression is punishable pursuant to the United
States Constitution. By the Committee's own admission:
If Utahns, for example, want to ban only burning and
trampling on the flag as a means of casting contempt on
it, and New Yorkers * * * wish to also ban defacing and
mutilating the flag as a means of physical desecration,
the Committee believes New Yorkers * * * should have
the right to do so.
(Report at 41.)
This will clearly, and apparently intentionally, subject
the First Amendment to as many as fifty-one separate and
distinct interpretations. The suggestion that a citizen of Utah
may have greater First Amendment freedom than his counterpart
in New York in fact understates the potential diversity of
rights. One must assume that the States, pursuant to their new
authority, could in turn ``empower'' local units of government
to prohibit desecration of the flag. Therefore, a woman in
Minneapolis may have substantially greater constitutional
protection than her brother who lives in St. Paul.
Additionally, the scope of individual protection could change
with each election. Using the Committee example, could not a
newly elected majority in the Utah legislature extend or
eliminate the prohibitions established by their predecessor?
Clearly, it would retain that right. We suggest that the
fundamental rights of Americans are simply too important to be
subject to the election cycle and should not be subject to
change depending upon who may or may not hold political power.
As Justice Jackson noted in West Virginia v. Barnette, 319 U.S.
624 (1943): \13\
\13\ Held unconstitutional State action making it compulsory for
children in public schools to salute the flag.
The very purpose of the Bill of Rights was to
withdraw certain subjects from the vicissitudes of
political controversy, to place them beyond the reach
of majorities and officials and to establish them as
legal principles to be applied by the courts. One's
right to life, liberty, and property, to free speech, a
free press, freedom of worship and assembly, and other
fundamental rights may not be submitted to vote; they
---------------------------------------------------------------------------
depend on the outcome of no elections.
Contrary to the proponents' arguments this geographic
distribution of fundamental rights does not ``reflect
federalism.'' This is an unprecedented manner in which to
apportion constitutional rights. Due Process does not mean one
thing in Montana and another in New Mexico. Equal Protection is
not defined one way in New York and completely differently in
Utah. This theory, if applied equally to all of the
Constitution, would make a mockery out of fundamental liberties
as we now know them. The proponents point out that states often
have differing laws on the same subjects. ``States regulate the
sale of liquor and the use of alcohol differently from each
other.'' (Report at 41.)
It is our sincere hope that the proponents of this
amendment are not equating the importance of free speech, a
fundamental liberty on which this nation was founded, with the
regulation of liquor sales? To do so trivializes the very
principles the flag symbolizes.
Finally, the proponents note, in an effort to identify a
situation analogous to what they are proposing, that the
standards for obscenity, which is not protected by the First
Amendment, may differ from community to community.\14\ While
this is true, it is equally true that the differing community
standards are not as unchecked or as limitless as the Committee
is suggesting. The Supreme Court, subsequent to Miller,
explicitly held that while community standards clearly
contribute to determining what is and is not obscene:
\14\ Miller v. California, 413 U.S. 15 (1973).
* * * it would be a serious misreading of Miller to
conclude that juries have unbridled discretion in
---------------------------------------------------------------------------
determining what is ``patently offensive.''
Jenkins v. Georgia, 418 U.S. 153 (1974).\15\
\15\ In Jenkins, the Supreme Court, in an opinion written by
Justice Rehnquist, overturned a Georgia obscenity conviction of a man
charged with showing an ``obscene'' movie. Despite the fact that the
local Georgia jury found the movie to be ``obscene'' the Court held
that the film was not obscene under the Miller standards and overturned
the conviction.
It should also be pointed out that the limited anomaly
created in Miller is the result of judicial interpretation and
not political fiat. As such, it remains possible that over time
a uniform and consistent standard may evolve. Such a
possibility is preferable to the present situation whereby we
are legislatively creating a vague and uncertain standard and
seeking to enshrine it forever in the United States
Constitution.
V. Conclusion
Proponents of S.J. Res. 31 passionately argue that the
flag, as America's most unique symbol, is at risk of being
devalued if the Constitution is not changed to explicitly
protect it. However, their position is contradicted by the
litany of examples of personal devotion to the U.S. Flag
contained at the outset of this report. Americans, since the
dawn of this nation, have loved and respected the United States
Flag--and they will continue to do so. A handful of dissidents
each year cannot shake the devotion of the American people to
the Flag.
We submit, however, that Americans also hold dear the
principles the Flag symbolizes. Principles of equality,
opportunity and freedom--principles embodied in the Bill of
Rights. The flag, as a symbol of these principles cannot truly
be protected if we must depart from these principles to do so.
The proposed amendment asks us to do just that.
Senate Joint Resolution 31 is unprecedented, unjustified,
unclear and perhaps most importantly, unnecessary. The greatest
protection the Flag can obtain is the unwavering respect of the
people over which it flies. The United States Flag already
enjoys such protection.
Accordingly, we respectfully urge that S.J. Res. 31 not be
approved by the Senate.
XIII. SUPPLEMENTAL MINORITY VIEWS OF MR. KOHL
Senator Kohl concurs in the views expressed by Senators
Kennedy, Leahy, Simon, and Feingold, with the exception of
section III.