[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).
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------

                 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.
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    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.
---------------------------------------------------------------------------
    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 
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        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 
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        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.