[House Report 107-115]
[From the U.S. Government Publishing Office]



107th Congress                                                   Report
                        HOUSE OF REPRESENTATIVES
 1st Session                                                    107-115

======================================================================



 
CONSTITUTIONAL AMENDMENT AUTHORIZING CONGRESS TO PROHIBIT THE PHYSICAL 
              DESECRATION OF THE FLAG OF THE UNITED STATES

                                _______
                                

   June 27, 2001.--Referred to the House Calendar and ordered to be 
                                printed

                                _______
                                

 Mr. Sensenbrenner, from the Committee on the Judiciary, submitted the 
                               following

                              R E P O R T

                             together with

                            DISSENTING VIEWS

                      [To accompany H.J. Res. 36]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on the Judiciary, to whom was referred the 
joint resolution (H.J. Res. 36) proposing an amendment to the 
Constitution of the United States authorizing the Congress to 
prohibit the physical desecration of the flag of the United 
States, having considered the same, reports favorably thereon 
without amendment and recommends that the joint resolution do 
pass.

                                CONTENTS

                                                                   Page
Purpose and Summary..............................................     2
Background and Need for the Legislation..........................     2
Hearings.........................................................     6
Committee Consideration..........................................     6
Vote of the Committee............................................     7
Committee Oversight Findings.....................................     8
Performance Goals and Objectives.................................     8
New Budget Authority and Tax Expenditures........................     8
Congressional Budget Office Cost Estimate........................     9
Constitutional Authority Statement...............................    10
Section-by-Section Analysis and Discussion.......................    10
Markup Transcript................................................    11
Dissenting Views.................................................    39

                          Purpose and Summary

    H.J. Res. 36 proposes to amend the United States 
Constitution to allow Congress to prohibit the physical 
desecration of the flag of the United States. The proposed 
amendment reads: ``The Congress shall have the power to 
prohibit the physical desecration of the flag of the United 
States.'' The amendment itself does not prohibit flag 
desecration. It merely empowers Congress to enact legislation 
to prohibit the physical desecration of the flag and 
establishes boundaries within which it may legislate. Prior to 
the United States Supreme Court decision in Texas v. 
Johnson,\1\ forty-eight states and the Federal Government had 
laws prohibiting desecration of the flag. The purpose of the 
proposed amendment is to restore to the Congress the power to 
protect the flag.
---------------------------------------------------------------------------
    \1\ 491 U.S. 397 (1989).
---------------------------------------------------------------------------

                Background and Need for the Legislation

    Since 1994, there have been 86 reports of incidents 
involving flag desecration that have occurred in 29 states, the 
District of Columbia, and Puerto Rico. Since the United States 
Supreme Court's 1989 ruling in Texas v. Johnson,\2\ in which 
the Court held that burning an American flag as part of a 
political demonstration was expressive conduct protected by the 
First Amendment to the U.S. Constitution, neither the States, 
nor the Federal Government, have been able to prohibit the 
desecration of the American flag.
---------------------------------------------------------------------------
    \2\ Id.
---------------------------------------------------------------------------
    Gregory Johnson was convicted of desecrating a flag in 
violation of Texas law after publicly burning a stolen American 
flag in a protest outside of the 1984 Republican National 
Convention in Dallas, Texas.\3\ The Texas law prohibited the 
intentional desecration of a national flag in a manner in which 
``the actor knows will seriously offend one or more persons 
likely to observe or discover his action.'' \4\ His conviction 
was upheld by the Court of Appeals for the Fifth District of 
Texas at Dallas, but reversed by the Texas Court of Criminal 
Appeals. The United States Supreme Court, in a 5 to 4 vote, 
affirmed the Court of Criminal Appeals conclusion that 
Johnson's conviction was inconsistent with the First Amendment 
because his actions constituted ``symbolic free expression.''
---------------------------------------------------------------------------
    \3\ Johnson, 491 U.S. at 399-400.
    \4\ Tex. Penal Code Ann. Section 42.09(a)(3), Desecration of a 
Venerated Object, provided as follows:
---------------------------------------------------------------------------
(a) A person commits an offense if he intentionally or knowingly 
desecrates:
    (1) a public monument;
    (2) a place of worship or burial; or
    (3) a State or national flag.
(b) For purposes of this section, ``desecrate'' means 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.
(c) An offense under this section is a Class A misdemeanor.
    Justice Rehnquist, in a dissenting opinion in which 
Justices O'Connor and White joined,\5\ noted the unique history 
of the American flag:
---------------------------------------------------------------------------
    \5\ Justice Stevens filed a separate dissenting opinion.

        The American flag, then, throughout more than 200 years 
        of our history, has come to be the visible symbol 
        embodying our Nation. It does not represent the views 
        of any particular political party, and it does not 
        represent any particular political philosophy. The flag 
        is not simply another ``idea'' or ``point of view'' 
        competing for recognition in the marketplace of ideas. 
        Millions and millions of Americans regard it with an 
        almost mystical reverence regardless of what sort of 
        social, political, or philosophical beliefs they may 
        have. I cannot agree that the First Amendment 
        invalidates the Act of Congress, and the laws of 48 of 
        the 50 States, which make criminal the public burning 
        of the flag.\6\
---------------------------------------------------------------------------
    \6\ Johnson, 491 U.S. at 429 (emphasis added).

    Justice Rehnquist also found persuasive the fact that Chief 
Justice Earl Warren, and Justices Black and Fortas were also of 
the opinion that the States and the Federal Government had the 
power to protect the flag from desecration and disgrace.
    In response to the Johnson decision, in September 1989, 
Congress passed the ``Flag Protection Act of 1989'' \7\ by a 
vote of a 380 to 38. The Act amended the Federal flag statute, 
18 U.S.C. Sec. 700, attempting to make it ``content-neutral'' 
so that it would pass constitutional muster. As stated in the 
House Judiciary Committee report, ``the amended statute focuses 
exclusively on the conduct of the actor, irrespective of any 
expressive message he or she might be intending to convey.'' 
\8\
---------------------------------------------------------------------------
    \7\ H.R. 2978, 101st Cong. (1989).
    \8\ Flag Protection Act of 1989 H. Rep. No. 101-231, at 2 (1989). 
The Act became law without the President's signature on October 28, 
1989 (Pub. L. No. 101-131).
---------------------------------------------------------------------------
    On June 11, 1990, in U.S. v. Eichman,\9\ the United States 
Supreme Court, in another 5 to 4 decision, struck down the 
recently-enacted ``Flag Protection Act of 1989,'' ruling that 
it infringed on expressive conduct protected by the First 
Amendment. Although the Government conceded that flag burning 
constituted expressive conduct, it claimed that flag burning, 
like obscenity or ``fighting words,'' was not fully protected 
by the First Amendment. The Government also argued the Act was 
constitutional because, unlike the Texas statute struck down in 
Johnson, the Act was ``content-neutral'' and simply sought to 
protect the physical integrity of the flag rather than to 
suppress disagreeable communication.
---------------------------------------------------------------------------
    \9\ 496 U.S. 310 (1990).
---------------------------------------------------------------------------
    Justice Brennan, writing for the majority, rejected the 
Government's argument, noting that:

        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,''' 491 U.S., at 410, 109 S.Ct., at 
        2543, and concerned with the content of such 
        expression. . . . 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. . . . 
        [T]he 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.\10\
---------------------------------------------------------------------------
    \10\ Id. at 315-316.

    Justice Stevens wrote a dissenting opinion in which Chief 
Justice Rehnquist, Justice White, and Justice O'Connor joined. 
He expressed agreement with the proposition expressed by the 
majority which stated that, ``the Government may not prohibit 
the expression of an idea simply because society finds the idea 
itself offensive or disagreeable.'' \11\ He went on, however, 
to note that methods of expression may be prohibited under a 
number of circumstances and set forth the following standard:
---------------------------------------------------------------------------
    \11\ Id. at 319.

        [I]f (a) the prohibition is supported by a legitimate 
        societal interest that is unrelated to suppression of 
        the ideas the speaker desires to express; (b) the 
        prohibition does not entail any interference with the 
        speaker's freedom to express those ideas by other 
        means; and (c) the interest in allowing the speaker 
        complete freedom of choice among alternative methods of 
        expression is less important than the societal interest 
        supporting the prohibition.\12\
---------------------------------------------------------------------------
    \12\ Id.

    Justice Stevens believed that the statute satisfied each of 
these concerns and thus should have withstood constitutional 
scrutiny.
    Opponents of H.J. Res. 36 have argued that it will 
undermine First Amendment protections; however, the prohibition 
of flag desecration is, in fact, consistent with the letter and 
the spirit of the First Amendment. Under United States Supreme 
Court precedent, certain ``expressive'' acts are entitled to 
First Amendment protection based upon the principle that the 
Government may not prohibit the expression of an idea simply 
because society finds the idea itself offensive or 
disagreeable.\13\ Still, not all activity with an expressive 
component is currently afforded First Amendment protection. The 
Court has said that certain modes of expression may be 
prohibited if: 1) the prohibition is supported by a legitimate 
government interest that is unrelated to suppression of the 
ideas the speaker desires to express; 2) the prohibition does 
not interfere with the speaker's freedom to express those ideas 
by other means; and 3) the interest in allowing the speaker 
complete freedom among all possible modes of expression is less 
important than the societal interest supporting the 
prohibition.\14\
---------------------------------------------------------------------------
    \13\ See Texas v. Johnson, 491 U.S. 397, 414 (1989).
    \14\ See U.S. v. O'Brien, 391 U.S. 367, 377 (1968).
---------------------------------------------------------------------------
    Applying these principles in O'Brien, the United States 
Supreme Court upheld a statute prohibiting the destruction of 
draft cards against a First Amendment challenge. The Court 
stated that the prohibition served a legitimate purpose--
facilitating draft induction in time of national crisis--that 
was unrelated to the suppression of the speaker's ideas because 
the law prohibited the conduct regardless of the message sought 
to be conveyed by destruction of the draft card. The Court 
further held that the prohibition did not preclude other forms 
of expression or protest and that the smooth functioning of the 
Selective Service System outweighed the need to extend First 
Amendment protections to the act itself.\15\
---------------------------------------------------------------------------
    \15\ See id. at 381.
---------------------------------------------------------------------------
    In Johnson, the Court rejected Texas' attempt to prohibit 
flag desecration because, the Court concluded, Texas' interest 
in how one treats the flag will only arise ``when a person's 
treatment of the flag communicates some message,'' making the 
prohibition ``related `to the suppression of free expression.' 
'' \16\ Similar to the O'Brien ruling, however, the 
government's interest in preserving the symbolic value of the 
American flag is present regardless of the message sought to be 
conveyed by any particular act of flag desecration. H.J. Res. 
36 does not seek to express approval of, nor does it seek to 
suppress, any particular content of speech or viewpoint. 
Rather, it seeks to remove the physical flag as a means of 
communication, regardless of the content or viewpoint of one's 
speech. Alternative means of expressing ideas are available to 
speakers, from various points of view on all subjects, who 
would desecrate a flag in order to express their message. Such 
was the status quo in 48 states and lands under Federal 
jurisdiction prior to the Johnson and Eichman rulings, during 
which time open debate flourished throughout America's history.
---------------------------------------------------------------------------
    \16\ Johnson, 491 U.S. at 410.
---------------------------------------------------------------------------
    The Eichman dissent provides an instructive analysis of why 
Congressional action prohibiting flag desecration is consistent 
with the First Amendment. In that dissent, Justice Stevens, 
joined by Chief Justice Rehnquist, and Justices White and 
O'Connor, began his analysis stating the well-accepted First 
Amendment principle that ``the Government may not prohibit the 
expression of an idea simply because society finds the idea 
itself offensive or disagreeable.'' \17\ However, Stevens 
concluded that the Federal Government has a legitimate interest 
in protecting the intrinsic value of the American flag because 
it, ``in times of national crisis, inspires and motivates the 
average citizen to make personal sacrifices in order to achieve 
societal goals of overriding importance,'' and, ``at all times 
it serves as a reminder of the paramount importance of pursuing 
the ideas that characterize our society.'' \18\ Speaking of the 
1989 Act, Stevens continued:
---------------------------------------------------------------------------
    \17\ U.S. v. Eichman, 496 U.S. 310, 319 (1990).
    \18\ Id.

        It is, moreover, equally clear that the prohibition 
        does not entail any interference with the speaker's 
        freedom to express his or her ideas by other means. It 
        may well be true that other means of expression may be 
        less effective in drawing attention to those ideas, but 
        that is not itself a sufficient reason for immunizing 
        flag burning. Presumably a gigantic fireworks display 
        or a parade of nude models in a public park might draw 
        even more attention to a controversial message, but 
        such methods of expression are nevertheless subject to 
        regulation.\19\
---------------------------------------------------------------------------
    \19\ Id. at 322.

    Stevens concluded that the societal interest in preserving 
the symbolic value of the flag outweighs the interest of an 
individual who believes that desecrating the flag will be the 
most effective method of expressing his or her views. Although 
the value of the individual's choice is ``unquestionably a 
matter of great importance,'' tolerance of flag burning, 
concluded Stevens, will ``tarnish that value.'' \20\
---------------------------------------------------------------------------
    \20\ Id.
---------------------------------------------------------------------------
    The belief that the prohibition of flag desecration is 
consistent with the First Amendment had gone unquestioned prior 
to the Johnson ruling. Former Chief Justice Earl Warren in 
Street v. New York, stated: ``I believe that the States and the 
Federal Government do have power to protect the flag from acts 
of desecration and disgrace.'' \21\ In the same case, Justice 
Hugo Black, a zealous proponent of freedom of speech wrote: 
``It passes my belief that anything in the Federal Constitution 
bars . . . making the deliberate burning of the American flag 
an offense.'' \22\ Again, in Street, Justice Abe Fortas stated 
that, ``[t]he States and the Federal Government have the power 
to protect the flag from acts of desecration.'' \23\ He 
continued, ``[T]he flag is a special kind of personality. Its 
use is traditionally and universally subject to special rules 
and regulations.'' \24\ It should also be mentioned that, on 
numerous occasions, the Supreme Court has upheld government 
regulation of pure speech. For example, speech that is likely 
to incite an immediate, violent response,\25\ obscenity,\26\ 
and libel \27\ are not protected under the First Amendment.
---------------------------------------------------------------------------
    \21\ 394 U.S. 576, 605 (1969).
    \22\ Id. at 610.
    \23\ Id. at 615.
    \24\ Id. at 616.
    \25\ Chaplinsky v. New Hampshire, 315 U.S. 568 (1942).
    \26\ Miller v. California, 413 U.S. 15 (1973).
    \27\ New York Times, Co. v. Sullivan, 376 U.S. 254 (1964).
---------------------------------------------------------------------------
    H.J. Res. 36 furthers the legitimate interest of the 
Federal Government in protecting the American flag, and it does 
not interfere with a speaker's freedom to express his or her 
ideas by other means. Because of the Johnson and Eichman 
decisions, the only remedy that Congress may pursue in order to 
protect the American flag from acts of desecration is a 
constitutional amendment. Since the Eichman ruling, forty-nine 
states have passed resolutions calling on Congress to pass the 
amendment and send it back to the states for ratification.\28\ 
H.J. Res. 36 would restore the authority of Congress to 
prohibit the physical desecration of the flag. The amendment 
itself does not prohibit flag desecration; it merely empowers 
Congress to enact legislation to prohibit the physical 
desecration of the flag and establishes boundaries within which 
it may legislate. Work on a statute will come at a later date, 
after the amendment is ratified by three-fourths of the States.
---------------------------------------------------------------------------
    \28\ The fiftieth State, Vermont, passed the resolution in both 
Houses, but in separate sessions.
---------------------------------------------------------------------------

                                Hearings

    No hearings were held on H.J. Res. 36. However, hearings 
were held on identical language proposed in the 105th and 106th 
Congress.\29\
---------------------------------------------------------------------------
    \29\ Flag Desecration Constitutional Amendment: Hearing on H.J. 
Res. 54 Before the Subcomm. on the Constitution, House Comm. on the 
Judiciary, 105th Cong. (1997). Flag Burning Constitutional Amendment: 
Hearing on H.J. Res. 33 Before the Subcomm. on the Constitution, House 
Comm. on the Judiciary, 106th Cong. (1999).
---------------------------------------------------------------------------

                        Committee Consideration

    On Thursday, May 24, 2001, the Subcommittee on the 
Constitution met in open session and ordered favorably reported 
the bill, H. J. Res. 36, by a vote of 5 to 3, a quorum being 
present. On Wednesday, June 20, 2001, the Committee met in open 
session and ordered favorably reported the bill, H. J. Res. 36 
without amendment by a recorded vote of 15 to 11, a quorum 
being present.

                         Vote of the Committee

    1. An amendment was offered by Mr. Watt to add the phrase 
``Not inconsistent with the first article of amendment to this 
Constitution,'' changing H.J. Res. 36 to read: ``Not 
inconsistent with the first article of amendment to this 
Constitution, the Congress shall have the power to prohibit the 
physical desecration of the flag of the United States.'' The 
amendment was defeated by rollcall vote of 9 to 13.

                                                   ROLLCALL NO. 1
----------------------------------------------------------------------------------------------------------------
                                                                       Ayes            Nays           Present
----------------------------------------------------------------------------------------------------------------
Mr. Hyde........................................................
Mr. Gekas.......................................................                              X
Mr. Coble.......................................................                              X
Mr. Smith (Texas)...............................................
Mr. Gallegly....................................................
Mr. Goodlatte...................................................                              X
Mr. Chabot......................................................                              X
Mr. Barr........................................................                              X
Mr. Jenkins.....................................................                              X
Mr. Hutchinson..................................................
Mr. Cannon......................................................                              X
Mr. Graham......................................................
Mr. Bachus......................................................
Mr. Scarborough.................................................
Mr. Hostettler..................................................                              X
Mr. Green.......................................................                              X
Mr. Keller......................................................                              X
Mr. Issa........................................................                              X
Ms. Hart........................................................                              X
Mr. Flake.......................................................
Mr. Conyers.....................................................
Mr. Frank.......................................................              X
Mr. Berman......................................................
Mr. Boucher.....................................................
Mr. Nadler......................................................              X
Mr. Scott.......................................................              X
Mr. Watt........................................................              X
Ms. Lofgren.....................................................              X
Ms. Jackson Lee.................................................
Ms. Waters......................................................              X
Mr. Meehan......................................................
Mr. Delahunt....................................................
Mr. Wexler......................................................              X
Ms. Baldwin.....................................................              X
Mr. Weiner......................................................              X
Mr. Schiff......................................................
Mr. Sensenbrenner, Chairman.....................................                              X
                                                                 -----------------------------------------------
    Total.......................................................              9              13
----------------------------------------------------------------------------------------------------------------

    2. An amendment was offered by Mr. Scott to delete the word 
``desecration'' and insert in its place the word ``burning.'' 
The amendment was defeated by a voice vote.
    3. Final Passage. The motion to report favorably the joint 
resolution, H.J. Res. 36, was agreed to by a rollcall vote of 
15 to 11.

                                                   ROLLCALL NO. 2
----------------------------------------------------------------------------------------------------------------
                                                                       Ayes            Nays           Present
----------------------------------------------------------------------------------------------------------------
Mr. Hyde........................................................
Mr. Gekas.......................................................              X
Mr. Coble.......................................................              X
Mr. Smith (Texas)...............................................
Mr. Gallegly....................................................              X
Mr. Goodlatte...................................................              X
Mr. Chabot......................................................              X
Mr. Barr........................................................              X
Mr. Jenkins.....................................................              X
Mr. Hutchinson..................................................
Mr. Cannon......................................................              X
Mr. Graham......................................................              X
Mr. Bachus......................................................
Mr. Scarborough.................................................
Mr. Hostettler..................................................              X
Mr. Green.......................................................              X
Mr. Keller......................................................              X
Mr. Issa........................................................              X
Ms. Hart........................................................              X
Mr. Flake.......................................................
Mr. Conyers.....................................................                              X
Mr. Frank.......................................................                              X
Mr. Berman......................................................                              X
Mr. Boucher.....................................................
Mr. Nadler......................................................
Mr. Scott.......................................................                              X
Mr. Watt........................................................                              X
Ms. Lofgren.....................................................                              X
Ms. Jackson Lee.................................................
Ms. Waters......................................................                              X
Mr. Meehan......................................................                              X
Mr. Delahunt....................................................
Mr. Wexler......................................................                              X
Ms. Baldwin.....................................................                              X
Mr. Weiner......................................................                              X
Mr. Schiff......................................................
Mr. Sensenbrenner, Chairman.....................................              X
                                                                 -----------------------------------------------
    Total.......................................................             15              11
----------------------------------------------------------------------------------------------------------------

                      Committee Oversight Findings

    In compliance with clause 3(c)(1) of rule XIII of the Rules 
of the House of Representatives, the Committee reports that the 
findings and recommendations of the Committee, based on 
oversight activities under clause 2(b)(1) of rule X of the 
Rules of the House of Representatives, are incorporated in the 
descriptive portions of this report.

                    Performance Goals and Objectives

    H.J. Res 36 does not authorize funding. Therefore, clause 
3(c) of rule XIII of the Rules of the House is inapplicable.

               New Budget Authority and Tax Expenditures

    Clause 3(c)(2) of House rule XIII is inapplicable because 
this legislation does not provide new budgetary authority or 
increased tax expenditures.

               Congressional Budget Office Cost Estimate

    In compliance with clause 3(c)(3) of rule XIII of the Rules 
of the House of Representatives, the Committee sets forth, with 
respect to the resolution, H.J. Res. 36, the following estimate 
and comparison prepared by the Director of the Congressional 
Budget Office under section 402 of the Congressional Budget Act 
of 1974:

                                     U.S. Congress,
                               Congressional Budget Office,
                                     Washington, DC, June 22, 2001.
Hon. F. James Sensenbrenner, Jr., Chairman,
Committee on the Judiciary,
House of Representatives, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for H.J. Res. 36, proposing 
an amendment to the Constitution of the United States 
authorizing the Congress to prohibit the physical desecration 
of the flag of the United States.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contacts are Lanette J. 
Walker (for Federal costs), who can be reached at 226-2860, and 
Shelley Finlayson (for the State and local impact), who can be 
reached at 225-3220.
            Sincerely,
                                  Dan L. Crippen, Director.

Enclosure

cc:
        Honorable John Conyers Jr.
        Ranking Member

H.J. Res. 36--Proposing an amendment to the Constitution of the United 
        States authorizing the Congress to prohibit the physical 
        desecration of the flag of the United States.
    H.J. Res. 36 would propose an amendment to the Constitution 
to allow the Congress to enact legislation that would prohibit 
physical desecration of the U.S. flag. The legislatures of 
three-fourths of the states would be required to ratify the 
proposed amendment within seven years for the amendment to 
become effective. By itself, this resolution would have no 
impact on the federal budget. If the proposed amendment to the 
Constitution is approved by the states, then any future 
legislation prohibiting flag desecration could impose 
additional costs on U.S. law enforcement agencies 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. Because enactment of 
H.J. Res. 36 would not affect direct spending or receipts, pay-
as-you-go procedures would not apply.
    H.J. Res. 36 contains no intergovernmental or private-
sector mandates as defined in the Unfunded Mandates Reform Act 
(UMRA) and would impose no costs on state, local, or tribal 
governments. In order for the amendment to become part of the 
Constitution, three-fourths of the state legislatures would 
have to ratify the resolution within seven years of its 
submission to the states by Congress. However, no state would 
be required to take action on the resolution, either to reject 
it or approve it.
    The CBO staff contacts for this estimate are Lanette J. 
Walker (for federal costs), who can be reached at 226-2860, and 
Shelley Finlayson (for the state and local impact), who can be 
reached at 225-3220. This estimate was approved by Robert A. 
Sunshine, Assistant Director for Budget Analysis.

                   Constitutional Authority Statement

    Pursuant to clause 3(d)(1) of rule XIII of the Rules of the 
House of Representatives, the Committee finds the authority for 
this legislation in article V of the Constitution, which 
provides that the Congress has the authority to propose 
amendments to the Constitution.

               Section-by-Section Analysis and Discussion

    H.J. Res. 36 simply states that ``[t]he Congress shall have 
power to prohibit the physical desecration of the flag of the 
Unites States.'' Congress clearly possessed this power prior to 
the decisions of the United States Supreme Court in Texas v. 
Johnson \30\ and U.S. v. Eichman.\31\ Those decisions held that 
the act of physically desecrating the flag by burning was 
expressive conduct protected by the First Amendment. As 
interpreted by the Supreme Court, the First Amendment to the 
U.S. Constitution, which states that, ``Congress shall make no 
law . . . abridging freedom of speech,'' limits the power of 
Congress. H.J. Res. 36 makes clear that Congress does have the 
power to pass legislation to prohibit the physical desecration 
of the flag of the United States.
---------------------------------------------------------------------------
    \30\ 491 U.S. 397 (1989).
    \31\ 496 U.S. 310 (1990).
---------------------------------------------------------------------------
    This proposed constitutional amendment sets the parameters 
for future action by the Congress on this issue. After the 
amendment is ratified, the elected representatives of the 
people will once again have the power, and can decide whether 
to enact legislation, to prohibit the physical desecration of 
the flag.
    There are two key issues that will need to be considered in 
enacting legislation to protect the flag from physical 
desecration.
    First, Congress, must consider the meaning of ``physical 
desecration.'' The amendment itself requires physical contact 
with the flag. Under this amendment, Congress could not punish 
mere words or gestures directed at the flag, regardless of how 
offensive they were. Webster's Ninth New Collegiate Dictionary 
defines ``desecrate'' as follows: ``1: to violate the sanctity 
of: PROFANE 2: to treat irreverently or contemptuously often in 
a way that provokes outrage on the part of others.'' 
``Desecrate'' is defined in Black's Law Dictionary as ``to 
violate sanctity of, to profane, or to put to unworthy use.'' 
Congress could clearly prohibit burning, shredding, and similar 
defilement of the flag.
    Second, Congress will have to decide what representations 
of the flag of the United States are to be protected. Of 
course, the resolution in no way changes the fact that ``what 
constitutes the flag of the United States'' is defined by the 
United States Congress at 4 U.S.C. Sec. 1. In enacting a 
statute, Congress will need to decide which representations of 
the flag are to be protected from physical desecration. They 
may define the flag of the United States as only a cloth, or 
other material readily capable of being waved or flown, with 
the characteristics of the official flag of the United States 
as described in 4 U.S.C. Sec. 1; or a ``flag'' could be 
anything that a reasonable person would perceive to be a flag 
of the Unites States even if it were not precisely identical to 
the flag as defined by statute. This would allow States and the 
Congress to prevent a situation whereby a representation of a 
United States flag with forty-nine stars or twelve red and 
white stripes was burned in order to circumvent the statutory 
prohibition.

                           Markup Transcript



                            BUSINESS MEETING

                        WEDNESDAY, JUNE 20, 2001

                  House of Representatives,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The committee met, pursuant to notice, at 11:07 a.m., in 
Room 2141, Rayburn House Office Building, Hon. F. James 
Sensenbrenner [Chairman of the Committee] presiding.
    AFTERNOON SESSION [1:47 p.m.]
    Chairman Sensenbrenner. The Committee will be in order.
    The next item on the agenda is the consideration of H.J. 
Res. 36, proposing an amendment to the Constitution of the 
United States authorizing the Congress to prohibit the physical 
desecration of the flag of the United States. The Chair 
recognizes the gentleman from Ohio, Mr. Chabot, the Chairman of 
the Subcommittee on the Constitution, for a motion.
    Mr. Chabot. Thank you, Mr. Chairman.
    The Subcommittee on the Constitution reports favorably the 
bill H.J. Res. 36 and move its favorable consideration, its 
recommendation to the full House.
    Chairman Sensenbrenner. Without objection, H.J. Res. 36 
will be considered as read and open for amendment at any point. 
The Chair recognizes the gentleman from Ohio, Mr. Chabot, to 
strike the last word.
    [H.J. Res. 36 follows:]

    
    
    Mr. Chabot. Thank you, Mr. Chairman.
    Since 1994, there have been 86 reported incidences 
involving flag desecration. Since the U.S. Supreme Court's 1989 
ruling in Texas versus Johnson, neither the States nor the 
Federal Government have been able to prohibit the desecration 
of this unique symbol of America's founding principles. In 
Johnson, the Court, by a 5 to 4 vote, held that burning an 
American flag as part of a political demonstration was 
expressive conduct, protected by the First Amendment to the 
U.S. Constitution.
    In response to Johnson, Congress overwhelmingly passed the 
``Flag Protection Act of 1989'', which amended the Federal flag 
statute to focus ``exclusively on the conduct of the actor, 
irrespective of any expressive message he or she might be 
intending to convey.''
    In 1990, however, in another 5 to 4 ruling, the U.S. 
Supreme Court in United States v. Eichman struck down that act 
as an infringement of expressive conduct protected by the First 
Amendment, despite having also concluded that the statute was 
content-neutral.
    According to the Court, the government's desire to protect 
the flag ``is implicated only when a person's treatment of the 
flag communicates a message to others.'' Therefore, any flag 
desecration statute by definition will be related to the 
suppression of free speech and run afoul of the First 
Amendment.
    Vigilant protection of political speech is central to our 
political system, and Americans have a profound national 
commitment to ensuring uninhibited, robust, and wide open 
debate on public issues. Until the Johnson and Eichman cases, 
however, punishing flag desecration had been viewed as 
compatible with both the letter and the spirit of the First 
Amendment, and both Thomas Jefferson and James Madison strongly 
supported Government actions to prohibit flag desecration.
    First amendment freedoms do not extend and should not be 
extended to grant an individual an unlimited right to engage in 
any form of desired conduct. Both State and Federal criminal 
codes prohibit conduct that could conceivably be cloaked in the 
First Amendment, yet the constitutionality of such statutes is 
not questioned. Burning a $10 bill, urinating in public, 
pushing over a tombstone, parading through the streets naked 
are examples of illegal conduct. Such conduct is not a form of 
argument in which the robust exchange of ideas occurs, and 
neither does such an exchange occur when one desecrates a flag. 
Rather, they are examples of conduct that our society has 
chosen not to condone. Until 1989, flag desecration was 
included in that list. As a result of the Court's misguided 
conclusions in Johnson and Eichman, however, disruptive and 
violent conduct has been elevated to the same level as pure 
political speech.
    While amending the Constitution is a power that should not 
be taken lightly, the only remedy left to the American people 
as a result of the Johnson and Eichman rulings is a 
constitutional amendment. The amendment before us will restore 
the authority of Congress to prohibit the physical desecration 
of the flag. The amendment itself does not prohibit flag 
desecration. It merely empowers Congress to enact legislation. 
Work on a statute will come at a later date, after the 
amendment is ratified by three-fourths of the States.
    In a compelling dissent from the Johnson majority's 
conclusion, Chief Justice Rehnquist, joined by Justices 
O'Connor and White, stated as follows: ``The American flag, 
then, throughout more than 200 years of our history, has come 
to be the visible symbol embodying our Nation. It does not 
represent the views of any particular political party, and it 
does not represent any particular political philosophy. The 
flag is not simply another idea or point of view competing for 
recognition in the marketplace of ideas. Millions and millions 
of Americans regard it with almost mystical reverence, 
regardless of what sort of social, political, or philosophical 
beliefs they may have.''
    H.J. Res. 36 simply reflects society's interest in 
maintaining the flag as the national symbol by prohibiting its 
physical desecration. Any statute enacted pursuant to it will 
not interfere with the ability of persons from various opposing 
viewpoints to express their ideas by other means. In his 
Johnson dissent, Chief Justice Rehnquist correctly observed 
that the First Amendment does not guarantee the right to employ 
every conceivable method of communication at all times and in 
all places.
    I urge the Committee to protect this irreplaceable symbol 
of America's founding principles and approve this resolution. 
And I yield back the balance of my time.
    Chairman Sensenbrenner. Who wishes to make the statement 
for the minority? The gentleman from New York, Mr. Nadler, you 
are recognized for 5 minutes.
    Mr. Nadler. Thank you, Mr. Chairman.
    Once again we are going to waste our time on a non-serious 
amendment to the Constitution. There are enough Members of this 
House, thankfully, who value the freedoms the flag represents 
to defeat this amendment this year, as in prior years.
    But we will go through this exercise anyway in an annual 
political rite. I wonder if I am the only Members of this sub--
of this Committee who would be willing to simply read last 
year's debate into the record, allow any new Members to say 
their pieces, consider any amendments, and then reconvene and 
move on.
    Chairman Sensenbrenner. Without objection----
    [Laughter.]
    Mr. Nadler. I would urge my colleagues to revere what the 
flag represents, the freedoms that make this a great Nation 
more than the symbol itself. For example, we have read much in 
the last few weeks of the fact that a flag was burnt at the 
funeral of Mr. Dorisman, an unarmed man in New York, who was 
killed by police for the crime of standing on the street corner 
in my district. I think we all know that disrupting a funeral, 
stealing someone else's flag and destroying it, is already a 
serious crime. And no one doubts the constitutionality of what 
makes it a crime. We do not need to play games with the Bill of 
Rights to deal with that situation.
    I somehow wish the majority would show as much interest in 
the civil rights of the dead man as they seem to show toward 
the protection of the flag at that funeral.
    People have rights in this country that supersede public 
opinion and even supersede the regard we have for the flag. The 
flag is a symbol of those rights which make this Nation great. 
If we do not preserve those rights, then the flag will have 
been desecrated far beyond the capability of any individual 
with a cigarette lighter.
    Let there be no doubt that this amendment is aimed directly 
at ideas, at ideas people have a right to express. Current 
Federal law says the preferable way to dispose of a tattered 
flag--this is the current Federal law--is to burn it. But there 
are those who would criminalize the same act, burning the flag, 
if it were done to express political dissent as opposed to 
being done to express reverence for the flag. So what is really 
being criminalized is not burning the flag, but the wrong 
intent, an intent I thought that we disagree with, and that is 
the heart of the First Amendment that we can't do that.
    Current law, Federal law, which is constitutionally void, 
makes it a misdemeanor to use the flag for advertising or in 
packaging. How many Members of Congress, used-car dealers, 
fast-food restaurants, and other seeming legitimate individuals 
and enterprises have engaged in this act which our laws define 
as criminal desecration. This amendment would presumably make 
that more constitutional once again. If ratified, I think there 
are more than few people in the House who would have to 
redesign their campaign materials to stay out of jail.
    Let me add one thing. As I said at the Subcommittee, today 
we often see movies in which actors portraying Nazi soldiers 
burn the American flag or trample it into the ground. 
Presumably this amendment will not make those actors subject to 
arrest. The only people who will be subject to arrest again 
will be people who do the same thing while expressing an 
unpopular idea, while expressing dissent or disgust with the 
policies of this country. But people who in a play or a movie 
portraying some enemy of the country burn the flag, they're not 
going to be subject to arrest.
    So, again, what is being made criminal, what the desire is 
to make criminal, is not the act of burning the flag or 
trampling it into the ground or doing something else 
disrespectful to the flag. It's doing that in conjunction with 
unpopular thoughts. Doing it in conjunction with a popular 
thought, like saying Nazi soldiers are terrible people and you 
shouldn't do that and we shouldn't follow the example of the 
Nazi, well, that's fine in a movie or a play or even in an 
instructional manual. But we are--this is the core of 
expressive freedom, and the whole purpose of this amendment is 
to say that we want to criminalize certain kinds of expressive 
opinion because we do not agree with that opinion. And the 
Chairman--the Chairman of the Subcommittee started off by 
saying 86 times since 1991. We're going to amend the Bill of 
Rights and start down that terrible road because of eight and a 
half nuts per year in a country of 280 million people? Let 
those eight and a half nuts be nuts. We'll survive that.
    I yield back.
    [The statement of Mr. Nadler follows:]

Prepared Statement of the Honorable Jerrold Nadler, a Representative in 
                  Congress From the State of New York

    Thank you, Mr. Chairman. Well, here we go again with the annual 
Republican Rite of Spring: a proposed amendment to the Bill of Rights 
to restrict what it calls flag ``desecration.''
    Why spring? Because, the calendar tells us, Monday is Memorial Day, 
June 14, is Flag Day, and then we have July 4th. Members need to send 
out a press release extolling the need to ``protect'' the flag. We know 
this is not, thankfully, a serious amendment. There are enough members 
of this Congress who value the freedoms the flag represents more than 
the symbol itself. But we will go through this exercise anyway. I 
wonder if I am the only member of this Subcommittee who would be 
willing to simply read last year's debate into the record, allow any 
new members to say their pieces, consider any amendments, and move on.
    I would urge my colleagues to revere what the flag represents, the 
freedoms that make this a great nation, more than the symbol itself.
    For example, the Majority has made much of the fact that a flag was 
burnt at the funeral of Mr. Dorisman, an unarmed man who was killed by 
police for the crime of standing on a street corner in my district. I 
think we all know that disrupting a funeral, stealing someone else's 
flag and destroying it is already a crime. We do not need to play games 
with the Bill of Rights to deal with that situation. I somehow wish 
that the majority would show as much interest in the civil rights of 
the dead man as they seem to show toward the protection of the flag at 
that funeral. That, in a nutshell is what is wrong with this amendment. 
People have rights in this country that supercede public opinion, and 
certainly a flag. The flag is the symbol of those rights which make 
this nation great. If we do not preserve those rights, then the flag 
will have been desecrated far beyond the capability of any individual 
with a cigarette lighter.
    Let there be no doubt that this amendment is aimed directly at 
ideas. Current federal law says that the preferred way to dispose of a 
tattered flag is to burn it, but there are those who would criminalize 
the same act if it was done to express political dissent. Current 
federal law, which is constitutionally void, also makes it a 
misdemeanor to use the flag for advertising or on packaging. How many 
members of Congress, used car dealers, fast food restaurants, and other 
seeming legitimate individuals and enterprises have engaged in this act 
which our laws define as criminal desecration? This amendment would 
presumably make that law constitutional once more. If ratified, I think 
there are more than a few people who will have to redesign their 
campaign materials to stay out of the pokey.
    People died for the nation and the rights which this flag so 
proudly represents. Let us not destroy the way of life for which they 
made the ultimate sacrifice.

    Chairman Sensenbrenner. Without objection, all Members may 
put statements in the record at this point.
    Chairman Sensenbrenner. Are there amendments to the joint 
resolution?
    Mr. Frank. Mr. Chairman?
    Chairman Sensenbrenner. The gentleman from Massachusetts.
    Mr. Frank. I move to strike the last word.
    Chairman Sensenbrenner. The gentleman is recognized for 5 
minutes.
    Mr. Frank. I understand the need for haste, but we are 
amending the U.S. Constitution here or contemplating that, and 
this is a very grave matter. And I think--I disagree with those 
who want to amend the Constitution in this regard. I honor 
their sentiments, and I think they really are owed a full 
explanation and a full debate of this.
    The problem here is the principle that we operate under. I 
believe the principle ought to be that simply because the 
Government does not punish you for doing something in no way 
indicates that we approve of it or that what we think you're 
doing is correct. The problem here is that we are approaching 
the establishment of a principle that says that which the 
Government does not prohibit, it is in some way countenancing 
or allowing.
    I would hope we would have this view that in this free 
society the general rule is you as an individual are allowed to 
do anything, and no inference is to be drawn from the 
Government not acting. That is, we recognize that there are 
many choices available to individuals in this society which are 
despicable, contemptible, which portray terrible moral values, 
but which precisely because we are free society, individuals 
are allowed to pursue.
    Free speech is, of course, one of the best examples. It is 
relatively easy to come to the aid of speech with which you are 
in agreement. The true test of your commitment to free speech 
is your willingness to allow someone without legal hindrance to 
say violent, contemptible things.
    The Supreme Court of the United States said you have a 
constitutional right not just to burn a flag but to burn a 
cross. Few things in this country's history are as much a 
repudiation of fundamental moral values as race relations. 
Burning a cross is intended to be a validation of some of the 
worst crimes committed in this country against people of color. 
And the Supreme Court said if it's your cross and it's on your 
property, you've got a right to burn it.
    Well, here's the problem. If we amend the Constitution to 
say that it is wrong to burn a flag because we believe that it 
is wrong to burn a flag, what are we then saying when we leave 
standing the Supreme Court opinion that says it's okay to burn 
a cross? Okay in the sense that it is not illegal. Not that 
it's right, not that we have anything but contempt for the 
bigots who do that. And that's the problem. Once you have 
established the principle that if we disagree with an action we 
should make it criminal, what about all of the virtually 
identical actions that we have not criminalized? Are we then 
saying--I guess we are--that although we have the power to make 
it criminal for you to burn a cross or to burn the Bible or to 
burn copies of the Constitution, as was done by some of the 
abolitionists, or to deface and degrade and destroy a number of 
other very important symbols that carry very important weight 
to people, well, then, we don't really object to that because 
we have set the principle. If we don't want you to do it, we 
will stop you legally. And, therefore, what we have not stopped 
we must be indulging. And I think that it is a mistake.
    So that's what we are talking about here. It has nothing to 
do with the merits of the flag or not. It has to do with the 
established--establishing this basic principle of freedom, and 
I would hope the principle would be, as we have all tried to 
hold to, if you are not, in fact, physically injuring someone 
else, if you are not taking that person's property, depriving 
them of the property, as the gentleman from New York pointed 
out, the people who thuggishly burned a flag at the funeral of 
that man who was unjustifiably shot to death by the police, 
they behaved in a fashion that was not only bad but illegal, 
and they could have and should have been prosecuted for a 
number of crimes. That's what the law ought to do. The law 
ought to protect our persons and our property from this sort of 
invasion.
    But once you set down the road of physically preventing 
someone from doing this thing or punishing him or her from 
doing it because we disapprove of it as an expression, because 
it destroys a symbol of great value to all of us, then you have 
breached the principle of freedom and you have set a precedent, 
and I don't know where it stops. And I am prepared to predict 
this will not be the only request we get. If, in fact, the 
constitutional amendment is set up and it's okay to prosecute 
people for burning a flag, what do you say to the people who 
say, Well, how can you let them burn a cross? What do you say 
to African Americans who say, This has been a symbol of the 
most terrible degradation and oppression imposed on people like 
me. How can you allow them freely to burn this cross in this 
way, or destroy the Bible, or destroy these other symbols?
    So I hope we will reject the constitutional amendment, not 
out of any disrespect for the flag but out of recognition of 
the centrality of the freedom principle.
    Chairman Sensenbrenner. The gentlewoman from California, 
Ms. Waters.
    Ms. Waters. Mr. Chairman and Members----
    Chairman Sensenbrenner. Five minutes.
    Ms. Waters. Thank you. I--this is one of those moments and 
pieces of legislation where it would be easy to choose to be 
quiet because, even if you are going to vote to oppose it, you 
buy yourself a bit of trouble by stepping up and saying that 
you're going to oppose it and saying why you're going to oppose 
it. But I think for those of us who really value freedom and 
justice and democracy, it is important for us to always be on 
the cutting edge of this and other issues that we could 
dismantle if we placed our political interest first rather than 
supporting this democracy that we believe has held us all in 
good stead.
    Mr. Frank mentioned how it is absolutely difficult for 
people of color to accept that the burning of a cross is an 
expression that is protected by the Constitution of the United 
States. I have always, from the first time I was taught the 
Constitution and the Bill of Rights, understood why it's so 
important for us to support and value freedom of speech and 
freedom of expression.
    I would dare say that if we allowed freedom of speech and 
freedom of expression to be undermined, we would not have the 
ability to do the kind of protests and marching and rallies 
that moved this country forward and forced this country to deal 
with civil rights.
    I receive some vicious mail, and often times I'm called 
terrible names, and I know other Members of Congress sometimes 
receive this kind of mail. There have been times when I've been 
in various communities where, you know, someone has stopped to 
let me know how much they dislike me, how much they dislike 
people of color, on and on and on. And while for the moment it 
angers me, I always settle down and think about how precious 
and important that right is and how it must be protected.
    I enjoy so much freedom of expression, freedom of speech. I 
try in everything that I do to exercise to the best of my 
ability the right to say and do and be, because this country 
and this Constitution, this democracy, allows us to do that.
    I am--I will not question the motives of my colleague, but 
this is an issue that distresses me, this flag desecration 
issue, because I see some people who have paid some--made some 
terrible sacrifices literally manipulated on this issue. I see 
veterans who care a lot about the flag, as we all do, and 
really do believe that they had the responsibility to try and 
protect the flag, get organized, they come to Congress, and 
they work very hard to pass this kind of legislation.
    And often times I want to say to them so much, you know, 
look at some of the efforts that are made every year about the 
4th of July on this issue and see what is being done, where are 
these people, on trying to straighten out Veterans Affairs 
where we have veterans coming to our doors day in and day out 
who cannot get their disability status. We work long hours to 
try and make sure that veterans get what's coming to them, and 
I have an expert in my office who's been able to get back 
payment, who's been able to work out very difficult issues with 
Veterans Affairs. We need to straighten out Veterans Affairs. 
It's not what it should be. We talk about the flag, but we are 
not talking about putting more money and more resources to make 
sure that veterans are serviced. We need more veteran centers. 
There are communities still without veteran centers where 
veterans can go and get assistance.
    We need to straighten out and strengthen veterans' 
hospitals. We have people who are sitting in those emergency 
rooms and around those hospitals day in and day out. Well, you 
talk to some of the same people who make a big, big deal out of 
flag desecration, and they will tell you they're fiscal 
conservatives, and they will not support the spending of more 
money to do some of the kinds of things that need to be done 
for veterans.
    Well, I'm not a fiscal conservative. I am not going to 
support a bill like this, but I certainly will support veterans 
and spend money on them and try and make sure that whether it 
is Agent Orange or any of the other difficult issues they're 
dealing with, that this country does what it is supposed to do.
    So I would ask my colleagues, and I would ask some of my 
colleagues who have always gone along with this because they 
don't have the courage not to, let's send a different message 
this time. Let us not pass this legislation. Let us oppose it. 
And let us see if we can't commit to see what we can do to 
strengthen the democracy and increase the opportunity for 
people to be able to say what they think is in the best 
interest of the issues that they're working on, and let us work 
hard to protect the veterans.
    I will yield back the balance of my time.
    Chairman Sensenbrenner. Anybody else who wishes to speak?
    Mr. Coble. Mr. Chairman?
    Chairman Sensenbrenner. The gentleman from North Carolina.
    Mr. Coble. Mr. Chairman, I will not use the 5 minutes. Move 
to strike the last word.
    The gentlelady from California said she received hate mail. 
Well, I say to Ms. Waters she does not own a corner on that 
market. I receive hate mail as well, but for different reasons. 
I come down on the side of authorizing the Congress to prohibit 
the physical desecration of the flag of the United States, and 
I, too, have received hate mail. This is a volatile issue, and 
I think many of us are going to have to just learn to disagree 
agreeably. But hate mail is coming both--on both sides of this 
issue.
    I just wanted to weigh in to that extent, Mr. Chairman, and 
yield back. Mr. Chairman, I yield back the balance of my time.
    Chairman Sensenbrenner. Are there any amendments? If there 
are no amendments, we can vote on this. Okay. The Committee 
stands in recess. Please come back promptly after the 
rollcalls.
    [Recess.]
    Chairman Sensenbrenner. The Committee will be in order. 
Pending at the time of the recess was the Joint Resolution, 
H.J. Res. 36, Constitutional Amendment to give Congress the 
power to prohibit the physical desecration of the flag of the 
United States. The Joint Resolution was read and open for 
amendment at any point.
    The gentleman from North Carolina, Mr. Watt, for what 
purpose do you seek recognition?
    Mr. Watt. Thank you, Mr. Chairman. I have an amendment at 
the desk.
    Chairman Sensenbrenner. The clerk will report the 
amendment.
    The Clerk. The amendment to H.J. Res. 36----
    Mr. Watt. Mr. Chairman, I ask unanimous consent the 
amendment be considered as read.
    Chairman Sensenbrenner. Well, if the gentleman will 
withhold, we'd like to take a look at it first.
    Without objection the amendment is considered as read, and 
the gentleman from North Carolina is recognized for 5 minutes.
    [The amendment follows:]

    
    
    Mr. Watt. Thank you, Mr. Chairman. I'll be brief. I think 
this is an amendment which I have offered before at previous 
markups, and at the Subcommittee, in the full Committee, and on 
the floor, which reflects a couple of concerns. Number one, if 
you've got a constitutional amendment in the form that is 
currently being proposed, and you have a First Amendment, which 
already is in the Constitution, one might legitimately be 
concerned which one would take precedence in the event there 
were a conflict, and so I think it's important, although it may 
be redundant, to say that whatever provision might be adopted 
pursuant to the proposed constitutional amendment that is the 
subject of debate here, should be subject to the existing First 
Amendment. If you did it in terms of chronological age, I think 
all of us would understand that the First Amendment has 
certainly been around for a long time, much, much longer than 
anything that--than H.J. Res. 36, the article that would be 
adopted by H.J. Res. 36.
    If you did it in terms of importance, I would dare say that 
the First Amendment would--should be the provision that takes 
precedence, but in the absence of this proposed amendment that 
I'm offering, then basically we are leaving it to the Supreme 
Court to make the determination of which would take precedence, 
and I think we ought to make that decision here, not leave it 
to the Court.
    So I'm not going to belabor this. I know the Chairman wants 
to move on with the markup, and everybody who has been on this 
Committee in prior years has already heard all the arguments 
about this, so I will just yield back the balance of my time.
    Chairman Sensenbrenner. The gentleman from Ohio, Mr. 
Chabot.
    Mr. Chabot. Mr. Chairman, move to strike the last word.
    Chairman Sensenbrenner. The gentleman's recognized for 5 
minutes.
    Mr. Chabot. Thank you, Mr. Chairman. I rise in opposition 
to the amendment. Mr. Watt's amendment is flawed because the 
present Court would declare that any legislation that 
effectively prohibits the physical desecration of the flag is 
inconsistent with the First Amendment.
    As the first phrase of the amendment, any court construing 
the amendment will find Mr. Watt's additional language 
controlling. When the Supreme Court struck down the Flag 
Protection Act passed by Congress in 1989, the majority stated, 
quote, ``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 concern 
with the content of such expression,'' unquote. Thus the 
Johnson and Eichman rulings stand for the proposition that 
legislation prohibiting the desecration of the American flag 
is, per se, unconstitutional under the First Amendment. By 
requiring the Court to apply its strained interpretation of the 
First Amendment when interpreting legislation enacted pursuant 
to H.J. Res. 36, Mr. Watt's amendment will insure that all 
legislation enacted pursuant to H.J. Res. 36 must be struck 
down as violating the First Amendment. And therefore, Mr. 
Watt's proposal here, although certainly interesting--and we 
discussed this at length in the Committee, I believe--would 
really make the passage of the constitutional amendment itself 
pointless, and for that reason, we oppose the amendment.
    Mr. Nadler. Mr. Chairman.
    Chairman Sensenbrenner. The gentleman from New York, Mr. 
Nadler.
    Mr. Nadler. Thank you. It's heartening to hear the 
admission from the----
    Chairman Sensenbrenner. Recognized for 5 minutes.
    Mr. Nadler. Thank you. Mr. Chairman, it's heartening to 
hear the admission from the Chairman of the Subcommittee, Mr. 
Chabot, that indeed the purpose of this seemingly innocuous 
amendment against flag desecration is really to punish and to 
prohibit free speech, which is what he just said, that saying 
it subject to the First Amendment protections of free speech 
would of course make the amendment a nullity because its 
purpose is to deter and to punish some free speech. Well, 
that's exactly what it does. He's entirely correct, and that's 
why we shouldn't pass the amendment, and if we have to pass it, 
we should pass Mr. Watt's amendment.
    Let me read you, at this point, from a letter, a letter 
written to Senator Leahy, which I'm going to ask be put into 
the record, but I want to read part of it first.
    Chairman Sensenbrenner. Without objection.
    Mr. Nadler. Thank you. But I want to read part of the 
letter first. ``If someone is destroying a flag that belongs to 
someone else, that's a prosecutable crime. If it is a flag they 
own, I really don't want to amend the Constitution to prosecute 
someone for foolishly desecrating their own property. We should 
condemn them and pity them instead. I understand how strongly 
so many of my fellow veterans and citizens feel about the flag, 
and I understand the powerful sentiment in State legislatures 
for such an amendment. I feel the same sense of outrage. But I 
step back from amending the Constitution to relieve that 
outrage. The First Amendment exists to insure that freedom of 
speech and expression applies not just to that with which we 
agree or disagree, but also that which we find outrageous. I 
would not amend that great shield of democracy to hammer a few 
miscreants.'' As we heard before, about 8\1\/\2\ per year. 
``The flag will be flying proudly long after they have slunk 
away. Finally, I shudder to think of the legal morass you will 
create trying to implement the body of law that will emerge 
from such an amendment. If I were a Members of Congress, I 
would not vote for the proposed amendment, and would fully 
understand and respect the views of those who would.''
    This is signed by General Colin Powell, USA, retired, and I 
hope that the common sense of this view of this distinguished 
veteran and Secretary of State of the United States will 
commend itself to this body.
    [The letter follows:]

    
    
    Chairman Sensenbrenner. The gentleman yield back? The 
question is on the amendment offered by the gentleman from 
North Carolina, Mr. Watt. Those in favor will signify by saying 
aye.
    Opposed, no.
    The noes appear to have it.
    Recorded vote is ordered. Those in favor of the Watt 
Amendment will, as your names are called, answer ``aye'', those 
opposed, ``no'', and the clerk will call the roll.
    The Clerk. Mr. Hyde?
    [No response.]
    The Clerk. Mr. Gekas?
    Mr. Gekas. No.
    The Clerk. Mr. Gekas, no. Mr. Coble?
    [No response.]
    The Clerk. Mr. Smith?
    [No response.]
    The Clerk. Mr. Gallegly?
    [No response.]
    The Clerk. Mr. Goodlatte?
    [No response.]
    The Clerk. Mr. Chabot?
    Mr. Chabot. No.
    The Clerk. Mr. Chabot, no. Mr. Barr?
    Mr. Barr. No.
    The Clerk. Mr. Barr, no. Mr. Jenkins?
    Mr. Jenkins. No.
    The Clerk. Mr. Jenkins, no. Mr. Hutchinson?
    [No response.]
    The Clerk. Mr. Cannon?
    Mr. Cannon. No.
    The Clerk. Mr. Cannon, no. Mr. Graham?
    [No response.]
    The Clerk. Mr. Bachus?
    [No response.]
    The Clerk. Mr. Scarborough?
    [No response.]
    The Clerk. Mr. Hostettler?
    Mr. Hostettler. No.
    The Clerk. Mr. Hostettler, no. Mr. Green?
    Mr. Green. No.
    The Clerk. Mr. Green, no. Mr. Keller?
    Mr. Keller. No.
    The Clerk. Mr. Keller, no. Mr. Issa?
    Mr. Issa. No.
    The Clerk. Mr. Issa, no. Ms. Hart?
    Ms. Hart. No.
    The Clerk. Ms. Hart, no. Mr. Flake?
    [No response.]
    The Clerk. Mr. Conyers?
    [No response.]
    The Clerk. Mr. Frank?
    Mr. Frank. Aye.
    The Clerk. Mr. Frank, aye. Mr. Berman?
    [No response.]
    The Clerk. Mr. Boucher?
    [No response.]
    The Clerk. Mr. Nadler?
    Mr. Nadler. Aye.
    The Clerk. Mr. Nadler, aye. Mr. Scott?
    Mr. Scott. Aye.
    The Clerk. Mr. Scott, aye. Mr. Watt?
    Mr. Watt. Aye.
    The Clerk. Mr. Watt, aye. Ms. Lofgren?
    Ms. Lofgren. Aye.
    The Clerk. Ms. Lofgren, aye. Ms. Jackson Lee?
    [No response.]
    The Clerk. Ms. Waters?
    [No response.]
    The Clerk. Mr. Meehan?
    Ms. Waters. Aye.
    The Clerk. Ms. Waters, aye. Mr. Meehan?
    [No response.]
    The Clerk. Mr. Delahunt?
    [No response.]
    The Clerk. Mr. Wexler?
    [No response.]
    The Clerk. Ms. Baldwin?
    Ms. Baldwin. Aye.
    The Clerk. Ms. Baldwin, aye. Mr. Weiner?
    Mr. Weiner. Pass.
    The Clerk. Mr. Weiner, pass. Mr. Schiff?
    [No response.]
    The Clerk. Mr. Chairman?
    Chairman Sensenbrenner. No.
    The Clerk. Mr. Chairman, no.
    Chairman Sensenbrenner. Are there additional Members in the 
chamber who wish to cast their votes or change their vote? The 
gentleman from North Carolina, Mr. Coble.
    Mr. Coble. No.
    The Clerk. Mr. Coble, no.
    Chairman Sensenbrenner. Gentleman from Virginia, Mr. 
Goodlatte.
    Mr. Goodlatte. No.
    The Clerk. Mr. Goodlatte, no.
    Chairman Sensenbrenner. Gentleman from New York, Mr. 
Weiner.
    Mr. Weiner. Yes.
    The Clerk. Mr. Weiner, yes.
    Chairman Sensenbrenner. Gentleman from Florida, Mr. Wexler.
    Mr. Wexler. Yes.
    The Clerk. Mr. Wexler, yes.
    Chairman Sensenbrenner. Is there anybody else who wishes to 
record or to change their vote? If not, the clerk will report.
    The Clerk. Mr. Chairman, there are 9 ayes and 13 nays.
    Chairman Sensenbrenner. And the amendment is not agreed to. 
Are there further amendments? The gentleman from Virginia, Mr. 
Scott.
    Mr. Scott. Mr. Chairman, I have an amendment at the desk.
    Chairman Sensenbrenner. The clerk will report the 
amendment.
    The Clerk. Amendment to H.J. Res. 36, offered by Mr. Scott, 
page 2, line 13, delete ``desecration'' and insert ``burning.''
    Chairman Sensenbrenner. The gentleman from Virginia is 
recognized for 5 minutes.
    [The amendment follows:]

    
    
    Mr. Scott. Mr. Chairman, I first want to thank you, Mr. 
Chairman, for holding the markup in Subcommittee and in 
Committee and for going through regular order. Frequently this 
particular amendment just gets brought directly to the floor 
without the regular order. So I want to express, on behalf of 
at least this Members, appreciation for going through the 
regular order as we consider something as important as an 
amendment to the United States Constitution.
    Now, first, Mr. Chairman, I want to apologize to those who 
I have challenged by suggesting that there has not been a rash 
of flag burning of America. I did a computer--had my staff do a 
computer search, and found that in fact there has been a rash 
of flag burning in America. Just recently, June 10th, in the 
Detroit News, it reports that Dearborn, Michigan will hold its 
annual Flag Day ceremony from 6:00 to 7:00 p.m. Thursday at 
Ford Field. The program will include a ceremony to burn 
tattered flags, tattered American flags, in keeping with the 
American Legion protocols for disposal of flags no longer fit 
for public display. So in Michigan there are flag burnings.
    In Allentown, Pennsylvania, June 10th, 2001. It reports 
that the commander of the American Legion Post 379, Bethlehem, 
began planning for the official disposal, more than a year ago, 
more than 7,000 flags were offered. The event Saturday served 
as a token. The bulk of the flags will be disposed of later. 
Color guards, Marines--of Marines, National Guard members, 
police and fire departments, scout troops, march towards the 
site of the fire that would be used to retire the flags. The 
burning was monitored by the Bethlehem Fire Department. Orange 
flames engulfed the flags as veterans and members of Boy Scout 
Troop 352 solemnly dropped flags of all sizes into a 55-gallon 
drum. Often flames leaped more than 4 feet into the air as 
others from the audience chose flags from among those piled 
high into two picnic tables ready for disposal. It went on and 
on talking about the flag burning.
    Also in Chicago. Bartlett Illinois will host its annual 
Memorial Day walk and remembrance on Monday at 10 o'clock. The 
Bartlett American Legion Post 1212 will hold a flag retirement 
ceremony. The legion members will burn 13 flags. Riverside, 
California warns us of a flag disposal ceremony scheduled for 
July 3rd.
    So there is flag burning going on all over the country, Mr. 
Chairman. So this would prohibit flag burning. The Supreme 
Court has considered restrictions on the Bill of Rights that 
are permissible. For example, under the First Amendment, with 
respect to speech, time, place and manner may generally be 
regulated while content cannot. So if you have a march, what 
time it is held, where it was held and so forth, can be 
restricted by the government, but you can't restrict what the 
people are marching about just because you disagree with that 
message, unless you decide to ban all marches. You can't allow 
marches by the Republican Party but not the Democratic Party. 
My amendment has no content-based restrictions and makes the 
underlying amendment content neutral. All flag burning would be 
outlawed. The underlying resolution permits flag burning if you 
say something nice while you're burning the flag, but would 
criminalize flag burning if you say something offensive while 
you're burning the flag.
    If we really intend to bar flag burning, then let's bar all 
flag burning. We should acknowledge that the purpose of the 
underlying amendment is to stifle political expression we find 
offensive. And while I agree that we should all respect the 
flag, I don't think it's appropriate to use a criminal code to 
enforce our views on those who disagree.
    And so this amendment, Mr. Chairman, would change the 
resolution to say what people have been calling it, the Flag 
Burning Amendment, and I would hope that we would have truth in 
legislation and adopt the amendment. Thank you very much.
    Chairman Sensenbrenner. The gentleman's time has expired. 
The Chair recognizes himself in opposition to the gentleman's 
amendment.
    The gentleman's amendment prohibits flag burning, but does 
allow other activity that casts contempt upon the American 
flag. I would like to cite a decision of the Supreme Court of 
Wisconsin, my own State, to show what type of activity the 
gentleman's amendment would legalize that would be illegal 
under an implementing law passed pursuant to H.J. Res. 36, 
should it be adopted and ratified.
    On June 25th, 1998, the Wisconsin Supreme Court, citing 
both the Johnson case and the Eichman case of the United States 
Supreme Court, declared unconstitutional Wisconsin's flag 
desecration statute. The facts of this case, which were 
uncontested, involved a young man named Matthew Jansen, who 
admitted to defecating on the United States flag and leaving it 
at the door of a country club in Appleton, Wisconsin. The 
Wisconsin Supreme Court, citing the precedent of the United 
States Supreme Court, said that Mr. Jansen's disgusting action 
was free speech that was protected by the United States 
Constitution.
    Now, that's the law because two 5 to 4 decisions of the 
United States Supreme Court made it the law of the land. And I 
think what the Supreme Courts both in my State and the United 
States Supreme Court across the street have done, is to say 
that defecating on the United States flag is protected free 
speech, but defecating on the editorial page of the Washington 
Post, when one disagrees with that, is disorderly conduct. And 
the only way that we are going to be able to make the law 
consistent is to defeat the gentleman from Virginia's 
amendment, and to go on and pass this constitutional amendment 
and having the States ratify it.
    I give back the balance of my time.
    Mr. Frank. Mr. Chairman?
    Chairman Sensenbrenner. The gentleman from Massachusetts.
    Mr. Frank. I move to strike the last word.
    Chairman Sensenbrenner. The gentleman's recognized for 5 
minutes.
    Mr. Frank. That summarizes my problem with this amendment, 
because if that's all you do, and you then consider you were 
ratifying the Wisconsin Supreme Court--it is illegal to 
defecate on a bible and leave it at the door of a church. It is 
constitutional to defecate on the Wisconsin State flag and 
leave it at the door of the governor. Indeed, in a rational 
society, anyone who engages in that disgusting behavior ought 
to be prosecuted, and it may be the prosecutor mischarged, but 
I believe in Massachusetts, anyone who engages in that vile 
behavior, no matter what the receptacle is that you choose, 
would be guilty of a violation. The notion that you can do that 
and deposit that on somebody else's doorstep is appalling, and 
that's the problem. You will, by this amendment, make it 
illegal, with appropriate implementing legislation, but it's 
flag specific. So that by this very example, you are--and it's 
the old principle of if you include the one, you exclude the 
others. You are then saying to people, ``Okay, but if in 
Wisconsin you defecate on the bible, on a copy of the US 
Constitution, on the Wisconsin State flag, on a picture of 
someone's wife or children or husband, that that's okay, and 
you can put it on the doorstep.''
    I would urge instead the Wisconsin legislature, of which we 
have several distinguished alumni among us, to look at the 
Wisconsin law, because if it is in fact legal in
    Wisconsin for people to do that, and deposit it on somebody 
else's doorstep, the you need to change the laws of Wisconsin.
    But the problem is, as I said--and this shows my problem 
with this amendment--the behavior there is disgusting. It is an 
intrusion on other people's rights when you go to leave that on 
other people's doorsteps, et cetera, and that ought to be 
criminally prosecuted. That ought to be prohibited, and it 
ought to be prohibited no matter what sacred symbol you choose 
to offend people by so denigrating.
    So I consider this a further explanation of why I believe 
this amendment is inappropriate. And as I said, if in fact you 
pass this amendment, you are then saying, we have--unless you 
want to pass some other amendments--are we going to pass a 
bible amendment? Are we going to pass a Wisconsin State 
Constitution amendment, a Wisconsin State flag amendment, a 
picture of George Washington amendment? That's the problem. 
Once you say that the behavior was not the problem, but it's 
what you choose as a vehicle for carrying it out, and it's okay 
if you do it on anything else but the flag, you've got a major 
gap.
    Instead, I think, as I said, that there ought to be--and I 
want to be very clear--I don't believe the Court has ever 
held--and let's be very clear about this--maybe this is the 
confusion when we talk about the people who violated the 
privacy of that funeral or the decency and dignity of that 
funeral--if something is illegal, if something is physically 
disruptive, if it takes other people's property, it does not 
get immunity because you happen to involve the flag. If you rob 
a bank, the fact that you put the loot in your bag flag doesn't 
make it okay to rob the bank. If you burn somebody else's 
property, the fact that the property you chose to burn that 
belonged to somebody else was a flag, doesn't make it okay. And 
if you, in fact, engage in this kind of disgusting behavior 
that's been described, and then go and infringe on somebody 
else's property, you get no immunity because you chose to use 
the flag or the Constitution or anything else. That I think, in 
fact, defines the difference between us.
    Mr. Chabot. Mr. Chairman?
    Chairman Sensenbrenner. The gentleman from Ohio, Mr. 
Chabot, is recognized for 5 minutes.
    Mr. Chabot. Thank you, Mr. Chairman. There are several 
flaws in Mr. Scott's proposal. The purpose of H.J. Res. 36 is 
to allow Congress to prohibit all conduct that desecrates the 
American flag, not just burning of the flag.
    Webster's Dictionary defines ``desecrate'' as to violate 
the sanctity of, to profane, or to treat irreverently or 
contemptuously, often in a way that provokes outrage on the 
part of others. In Black's Law Dictionary, it's other acts to 
violate sanctity of, profane, or to put to unworthy use.
    There are numerous physical acts other than burning that 
would fall under that definition. The exact definition will be 
debated, then passed by Congress ultimately if this 
constitutional amendment actually becomes law. The Congress 
will then determine what acts exactly should be determined to 
be desecration. Congress has done this in the past and so can 
easily be done in the future.
    Relative to the gentleman's point about the different 
incidents, as I stated in the opening, there have been 86 
separate documented incidents in which the flag has been 
desecrated since 1994, and relative to the very honorable 
practice that veterans groups take part in Veterans Day and 
other decoration--other very formal, very traditional 
practices, I mean, there's a proper way to dispose of a flag, 
and if you didn't have a way, you'd have to maintain the flags 
in perpetuity. Obviously, that's not what's called for, and I 
don't think anybody's going to mix up what is a proper way to 
dispose of a flag and what would be offensive to the law.
    And with that, I'll yield back the balance of my time.
    Chairman Sensenbrenner. The gentleman from North Carolina, 
Mr. Watt.
    Mr. Watt. Move to strike the last word.
    Chairman Sensenbrenner. The gentleman's recognized for 5 
minutes.
    Mr. Watt. Thank you. Mr. Chairman. I think Mr. Chabot 
continues to illustrate the exact concern that those of us who 
believe that people ought to be able to express themselves even 
if we disagree with them should be protected. His whole 
definition of desecration implies that you have to be 
expressing yourself in some negative way to raise a level of 
concern here, and I submit Mr. Scott's amendment clearly 
illustrates. There are flag burnings going on all over, 
regularly I mean. There's probably not a Member of Congress 
that hasn't participated in one of these ceremonies, going to 
an honorable burning of the flag.
    But if you go to a dishonorable burning of the flag, where 
somebody is saying, ``I hate some action of the government'' or 
even ``I hate the government'' or even ``I hate the flag'', we 
may all disagree with that person, but I think what we're 
saying is that that person has the right to say that in this 
country. And thus, a principle that our country was founded on. 
That's what our country is all about. That's what a lot of the 
people who support this flag desecration amendment presumably 
have fought and died for over the years, to preserve the very 
kind of expression that we all think is despicable, but is 
protected under the First Amendment to the United States 
Constitution.
    And so I think as a vehicle for illustrating exactly what 
this proposed constitutional amendment is about, Mr. Scott's 
amendment clearly illustrates that. If this was about burning a 
flag, rather than about what somebody was thinking or saying 
when they burned the flag, then Mr. Scott's amendment would be 
fine. You wouldn't be--you wouldn't have a need for the 
underlying constitutional amendment that's being proposed. And 
so I'm not sure I necessarily agree with Mr. Scott's amendment, 
that we ought to go overboard and do away with all burnings, 
but as a means of illustrating what this is about, it clearly 
illustrates the shortcomings of the underlying amendment.
    So I yield back, Mr. Chairman.
    Chairman Sensenbrenner. The question is on the amendment by 
the gentleman from Virginia, Mr. Scott. Those in favor will 
signify by saying aye.
    Opposed, no.
    The noes appear to have it. The noes have it, and the 
amendment is not agreed to.
    Are there further amendments to the Joint Resolution? The 
gentleman from New York, Mr. Weiner.
    Mr. Weiner. Mr. Chairman, I have an amendment at the desk.
    Chairman Sensenbrenner. The clerk will report the 
amendment.
    Mr. Chabot. Mr. Chairman, reserving a point of order.
    Chairman Sensenbrenner. Point of order is reserved by the 
gentleman from Ohio. The clerk will report the amendment.
    The Clerk. Amendment to H.J. Res. 36----
    Mr. Weiner. Request unanimous consent to have it accepted 
as read or considered as read.
    Chairman Sensenbrenner. Without objection, the reading is 
waived. The amendment is open for amendment at any point, and 
the gentleman is recognized for 5 minutes.
    [The amendment follows:]

    
    
    Mr. Weiner. Mr. Chairman, I thank you. I guess I believe 
that flag burning should be illegal, and I believe--I believe 
that this constitutional amendment is another example of things 
we do from time to time in this House that might make us feel 
good, but at the end of the day don't result in any change. I 
think we all know, as we sit here, that the constitution will 
not be amended with this amendment. I think we know that it 
lacks the support in this Congress, it lacks the support in the 
various State legislatures. However, I do believe that there is 
a way for us to cure and to find remedy for what the Supreme 
Court has struck down in previous statutes.
    I believe that what we should be doing here is offer a 
statutory fix for a statutory problem. I believe that if we 
look at the Supreme Court judgments that have been handed down 
till now, the critique by the Supreme Court has been first that 
the statutes were vague, and more recently, that they were 
violative of the First Amendment.
    The amendment I'm offering today, which was originally 
authored by Mr. Boucher, seeks to cure those problems in a 
statutory confine. What it does is it prevents flag burning by 
looking at the language that is permitted, already 
constitutionally about stopping anything that would provoke 
imminent violence or breach of the peace, or anything that is 
in the government's right to protect its own property. It 
provides protection for several--in several areas, on any of 
the--if it's deemed that the action of burning the flag would 
promote violence, it is a crime. If the flag is burning to the 
United States Government, meaning it's on any Federal property, 
it is a crime. If it's damaging the flag of another country on 
any Federal land, it is a crime. Flag burning would be illegal. 
I believe that this is a legitimate way that we can pass from 
this House a fix that does not continue the fiction of this 
constitutional amendment.
    And there are some who believe that as a matter of--a 
matter of philosophy, that this should be fixed via 
constitutional amendment. And I believe that this is a 
legislative problem that legislators should fix with 
legislation. And I guess I share the sentiments of Secretary of 
State Colin Powell, who said--and if you'll permit me to 
quote--``I understand how strongly so many of my fellow 
veterans and citizens feel about the flag, and I understand the 
powerful sentiment in State legislatures for such an amendment. 
I feel the same sense of outrage, but I step back from amending 
the Constitution to relieve that outrage. The First Amendment 
exists to insure that freedom of speech and expression applies, 
not just to that with which we agree or disagree, but also that 
which we find outrageous. I would not amend the great shield of 
democracy to hammer a few miscreants. The flag will be flying 
proudly long after they have slunk away.'' Close quote.
    I, however, do believe that we should ban flag burning and 
I ask for favorable consideration of this amendment.
    Chairman Sensenbrenner. Does the gentleman from Ohio insist 
upon his point of order?
    Mr. Chabot. Yes, Mr. Chairman, I do.
    Chairman Sensenbrenner. The gentleman will state his point 
of order.
    Mr. Chabot. This does not comply with House rules requiring 
that amendments be germane. This amendment would amend the 
Federal criminal code and is not related to the fundamental 
purpose of the joint resolution.
    Chairman Sensenbrenner. Does anybody else wish to be heard 
on the point of order? The gentleman from New York?
    Mr. Weiner. Mr. Chairman, I request unanimous consent to 
withdraw the amendment.
    Chairman Sensenbrenner. Without objection.
    Are there further amendments?
    [No response.]
    Chairman Sensenbrenner. There are no further amendments. 
The question occurs on the motion to report H.J. Res. 36 
favorably. All those in favor will say aye.
    Opposed, no.
    Chairman Sensenbrenner. The ayes appear to have it. The 
ayes have it, and the motion to report is favorably adopted.
    A record vote is demanded by the gentleman from 
Massachusetts. The question is on favorably reporting H.J. Res. 
36. Those in favor will, as your names are called, answer aye, 
those opposed, no, and the clerk will call the roll.
    The Clerk. Mr. Hyde?
    [No response.]
    The Clerk. Mr. Gekas?
    Mr. Gekas. Aye.
    The Clerk. Mr. Gekas, aye. Mr. Coble?
    [No response.]
    The Clerk. Mr. Smith?
    [No response.]
    The Clerk. Mr. Gallegly?
    Mr. Gallegly. Aye.
    The Clerk. Mr. Gallegly, aye. Mr. Chabot?
    Mr. Chabot. Aye.
    The Clerk. Mr. Chabot, aye. Mr. Goodlatte?
    Mr. Goodlatte. Aye.
    The Clerk. Mr. Goodlatte, aye. Mr. Barr?
    Mr. Barr. Aye.
    The Clerk. Mr. Barr, aye. Mr. Jenkins?
    Mr. Jenkins. Aye.
    The Clerk. Mr. Jenkins, aye. Mr. Hutchinson?
    [No response.]
    The Clerk. Mr. Cannon?
    Mr. Cannon. Yes.
    The Clerk. Mr. Cannon, aye. Mr. Graham?
    [No response.]
    The Clerk. Mr. Bachus?
    [No response.]
    The Clerk. Mr. Scarborough?
    [No response.]
    The Clerk. Mr. Hostettler?
    Mr. Hostettler. Aye.
    The Clerk. Mr. Hostettler, aye. Mr. Green?
    Mr. Green. Aye.
    The Clerk. Mr. Green, aye. Mr. Keller?
    Mr. Keller. Aye.
    The Clerk. Mr. Keller, aye. Mr. Issa?
    Mr. Issa. Aye.
    The Clerk. Mr. Issa, aye. Ms. Hart?
    Ms. Hart. Aye.
    The Clerk. Ms. Hart, aye. Mr. Flake?
    [No response.]
    The Clerk. Mr. Conyers?
    [No response.]
    The Clerk. Mr. Frank?
    Mr. Frank. No.
    The Clerk. Mr. Frank, no. Mr. Berman.
    [No response.]
    The Clerk. Mr. Boucher?
    [No response.]
    The Clerk. Mr. Nadler?
    [No response.]
    The Clerk. Mr. Scott?
    Mr. Scott. No.
    The Clerk. Mr. Scott, no. Mr. Watt?
    Mr. Watt. No.
    The Clerk. Mr. Watt, no. Ms. Lofgren?
    Ms. Lofgren. No.
    The Clerk. Ms. Lofgren, no. Ms. Jackson Lee?
    [No response.]
    The Clerk. Ms. Waters?
    Ms. Waters. No.
    The Clerk. Ms. Waters, no. Mr. Meehan?
    Mr. Meehan. No.
    The Clerk. Mr. Meehan, no. Mr. Delahunt?
    [No response.]
    The Clerk. Mr. Wexler?
    Mr. Wexler. No.
    The Clerk. Mr. Wexler, no. Ms. Baldwin?
    Ms. Baldwin. No.
    The Clerk. Ms. Baldwin, no. Mr. Weiner?
    Mr. Weiner. No.
    The Clerk. Mr. Weiner, no. Mr. Schiff?
    [No response.]
    The Clerk. Mr. Chairman?
    Chairman Sensenbrenner. Aye.
    The Clerk. Mr. Chairman, aye.
    Chairman Sensenbrenner. Are there additional Members in the 
room who wish to cast or change their vote? The gentleman from 
North Carolina.
    Mr. Coble. Aye.
    Chairman Sensenbrenner. Mr. Coble. The gentleman from South 
Carolina?
    Mr. Graham. Aye.
    The Clerk. Mr. Graham, aye.
    Chairman Sensenbrenner. Is there anybody else who wishes to 
cast or change their vote? If not, the clerk will report.
    Ms. Lofgren. Mr. Chairman?
    Chairman Sensenbrenner. For what purpose the gentlewoman 
from California seek recognition?
    Ms. Lofgren. May I ask how I am recorded?
    Chairman Sensenbrenner. How is Ms. Lofgren recorded?
    The Clerk. Ms. Lofgren is recorded as a no.
    Ms. Lofgren. Thank you, Mr. Chairman.
    Chairman Sensenbrenner. The gentleman from Michigan, Mr. 
Conyers?
    Mr. Conyers. Votes no.
    The Clerk. Mr. Conyers, no.
    Chairman Sensenbrenner. The gentleman from California, Mr. 
Berman?
    Mr. Berman. No.
    The Clerk. Mr. Berman, no.
    Mr. Chairman, there are 15 ayes and 11 noes.
    Chairman Sensenbrenner. And the Joint Resolution is 
favorably reported. Without objection, the Chairman is 
authorized to move to go to conference pursuant to House rules. 
Without objection, the staff is directed to make any technical 
and conforming changes, and all Members will be given 2 days, 
as provided by House rules, in which to submit additional 
dissenting supplemental or minority views.

                            Dissenting Views

    We oppose H.J. Res. 36, which would--for the first time in 
our Nation's history--modify the Bill of Rights to limit 
freedom of expression. Although the motives of the 
proposition's supporters are well-intended, we believe that 
adopting H.J. Res. 36 is wrong as a matter of principle, wrong 
as a matter of precedent, and wrong as a matter of practice.
    H.J. Res. 36 responds to a perceived problem--flag 
burning--that is all but nonexistent in American life today. 
Studies indicate that in all of American history from the 
adoption of the United States flag in 1777 through the Texas v. 
Johnson \1\ decision in 1989 there were only 45 reported 
incidents of flag burning.\2\ Moreover, most incidents of flag 
burning can be successfully prosecuted today under laws 
relating to breach of the peace--all fully within current 
constitutional constraints.\3\
---------------------------------------------------------------------------
    \1\ 491 U.S. 397 (1989). In a 5-4 decision authored by Justice 
Brennan, the Court found that the Texas flag desecration law was 
unconstitutional as applied in that it was a ``content-based'' 
restriction. Subsequent to Johnson, Congress enacted the Flag 
Protection Act in an effort to craft a more content-neutral law. In 
United States v. Eichman, 496 U.S. 310 (1990), the Court overturned 
several flag burning convictions brought under the new law, finding 
that the Federal law continued to be principally aimed at limiting 
symbolic speech.
    \2\ Robert J. Goldstein, Two Centuries of Flagburning in the United 
States, 163 Flag Bull. 65 (1995).
    \3\ See Hearing on H.J. Res. 79, Proposing an Amendment to the 
Constitution of the United States Before the Subcomm. on Constitution 
of the House Comm. on the Judiciary, 104th Cong., 1st Sess. (May 24. 
1995) [hereinafter, 1995 House Judiciary Hearings] (statement of Bruce 
Fein, at 1).
---------------------------------------------------------------------------
    By embedding a principle prohibiting flag desecration into 
the Constitution, we will have elevated the flag over other 
cherished symbols, including not only national symbols such as 
the Declaration of Independence and Statue of Liberty, but 
religious symbols such as crosses and bibles.
    Ironically, H.J. Res. 36 will not even achieve the 
sponsors' stated purpose--protecting the American flag and 
honoring American's veterans. History has taught us that 
restrictive legislation merely encourages more flag burning in 
an effort to protest the law itself,\4\ and a vaguely worded 
constitutional amendment such as H.J. Res. 36 will surely cause 
such efforts to increase many times over. If we truly want to 
honor our veterans, it would be far more constructive for 
Congress to ensure that money is available under the budget to 
provide them promised health care benefits and pension 
payments. Thus, while we condemn those who would dishonor our 
nation's flag, we believe that rather than protecting the flag, 
H.J. Res. 36 will merely serve to dishonor the Constitution and 
compromise the very ideals our nation was founded on. Retired 
General Colin L. Powell echoed this sentiment, stating,
---------------------------------------------------------------------------
    \4\ In his extensive survey of the history of American flag 
desecration law, Robert Goldstein writes that ``[a]lthough the purpose 
of the [Flag Protection Act adopted by Congress in 1968] was to 
supposedly end flag burnings, its immediate impact was to spur perhaps 
the largest single wave of such incidents in American history.'' Robert 
J. Goldstein, Saving ``Old Glory''--The History of the American Flag 
Desecration Controversy 215 (1995).

        The First Amendment exists to insure that freedom of 
        speech and expression applies not just to that with 
        which we agree or disagree, but also that which we find 
        outrageous. I would not amend that great shield of 
        democracy to hammer a few miscreants. The flag will be 
        flying proudly long after they have slunk away.\5\
---------------------------------------------------------------------------
    \5\ Letter from Colin L. Powell to Hon. Patrick Leahy, May 18, 
1999.
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                  IMPORTANCE OF FREEDOM OF EXPRESSION

    Freedom of expression is one of the preeminent human rights 
and is central to fostering all other forms of freedom. 
Professor Emerson notes that since as early as the Renaissance, 
free and open expression has been considered to be an essential 
element of human fulfillment: ``The theory [of free expression] 
grew out of an age that was awakened and invigorated by the 
idea of a new society, in which man's mind was free, his fate 
determined by his own powers of reason, and his prospects of 
creating a rational and enlightened civilization virtually 
unlimited.'' \6\
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    \6\ Thomas Emerson, Toward a General Theory of the First Amendment, 
72 Yale L.J. 877, 886 (1963).
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    Freedom of expression also provides an important safety 
valve for society. Professor Greenwalt writes that ``those who 
are resentful because their interests are not accorded fair 
weight, and who may be doubly resentful because they have not 
even had a chance to present those interests, may seek to 
attain by radical changes in existing institutions what they 
have failed to get from the institutions themselves. Thus 
liberty of expression, though often productive of divisiveness, 
may contribute to social stability.'' \7\
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    \7\ Kent Greenwalt, Speech and Crime, Am. B. Found. Res. J. 645, 
672-3 (1980). See also Rotunda, Treatise on Constitutional Law: 
Substance and Procedure Sec. 20.6 at 18 (2d ed. 1992).
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    Freedom of expression also serves as an important tool in 
checking the abuse of powers by public officials. Professor 
Blasi has noted that this ``checking function'' should be 
accorded a level of protection higher than that given any other 
type of communication because ``the particular evil of official 
misconduct is of a special order.'' \8\
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    \8\ Vincent Blasi, The Checking Valve in First Amendment Theory, 
1977 Am. B. Found. Res. J. 521, 526
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    Perhaps the most important function served by a system of 
free expression is that it allows for free and open exchange of 
thoughts--referred to by Justice Holmes as the ``marketplace of 
ideas.'' \9\ In a 1644 speech before the English Parliament 
criticizing censorship laws, Milton articulated the notion that 
free expression helps to prevent human error through ignorance:
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    \9\ Justice Holmes articulated his ``marketplace of ideas'' theory 
of free speech in his dissent in Abrams v. United States, 250 U.S. 616, 
630 (1919): ``[T]he ultimate good desired is better reached by free 
trade in ideas . . . the best test of truth is the power of the thought 
to get it accepted in the competition in the market.''

        [T]hough all the winds of doctrine were let loose to 
        play upon the earth, so truth be in the field, we do 
        injuriously, by licensing and prohibiting, to misdoubt 
        her strength. Let her and falsehood grapple, whoever 
        knew truth put to the worse in a free and open 
        encounter? \10\
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    \10\ J. Milton, Areopagitica, A Speech for the Liberty of 
Unlicensed Printing to the Parliament of England (1644).

    In his 1859 essay On Liberty, John Stuart Mill further 
expanded upon this vision when he recognized the public good 
and enlightenment which results from the free exchange of 
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ideas:

        First, if any opinion is compelled to silence, that 
        opinion for aught we can certainly know, be true. . . . 
        Secondly, though this silenced opinion be in error, it 
        may, and very commonly does, contain a portion of the 
        truth. . . . Thirdly, even if the received opinion be 
        not only true but the whole truth; unless it is 
        suffered to be and actually is, vigorously and 
        earnestly contested, it will by most of those who 
        receive it, be held in the manner of a prejudice.\11\
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    \11\ J.S. Mill, On Liberty Ch. II. (1859).

    The American system of government is itself premised on 
freedom of expression. Professor Emerson notes, ``Once one 
accepts the premise of the Declaration of Independence that 
governments derive `their just powers from the consent of the 
governed'--it follows that the governed must, in order to 
exercise their right of consent, have full freedom of 
expression both in forming individual judgments and in forming 
the common judgments.'' \12\
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    \12\ Emerson, supra note 6, at 883.
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    The founding fathers recognized the difficulties in 
maintaining a system of free expression against the ``tyranny 
of the majority.'' In The Federalist Papers, James Madison 
expressed concern as to the unfettered power of the majority: 
``By a faction I understand a number of citizens, whether 
amounting to a majority or a minority of the whole who are . . 
. adverse to the rights of other citizens, or to the permanent 
and aggregate interests of the community.'' \13\ It is for 
these reasons that the Constitution not only explicitly 
protected freedom of expression,\14\ but created a judiciary 
possessing the power of review over all legislative and 
executive action. These twin safeguards--a written constitution 
and an independent judiciary--have served to foster in this 
country the freest society in human history.
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    \13\ The Federalist No. 10 (J. Madison) at 57 (J. Cooke ed. 1961).
    \14\ Indeed, the framers chose to include freedom of speech in the 
First Amendment of the Bill of Rights, and wrote its protection in 
absolute terms: ``Congress shall make no law . . . abridging freedom of 
speech. . . .'' The strictness of the language is in contrast with the 
Fourth Amendment, for example, which prohibits only ``unreasonable 
searches and seizures.''
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             H.J. RES. 36 IS WRONG AS A MATTER OF PRINCIPLE

    Unfortunately, H.J. Res. 36 belies our system of unfettered 
political expression. In so doing, it not only undermines our 
commitment to freedom of expression and opens the door to 
selective prosecution based on political belief, but diminishes 
our nation's international standing.
    The true test of any nation's commitment to freedom of 
expression lies in its ability to protect unpopular expression, 
such as flag desecration. In 1929, Justice Holmes wrote that it 
was the most imperative principle of our Constitution that it 
protect not just freedom for the thought and expression we 
agree with, but ``freedom for the thought we hate.'' \15\ As 
Justice Jackson so eloquently wrote in 1943:
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    \15\ United States v. Schwimmer, 254 U.S. 644, 655 (1929) (Holmes, 
J., dissenting).

        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. 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.\16\
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    \16\ West Virginia Board of Education v. Barnette, 319 U.S. 624, 
642 (1943).

    As Jim Warner, a Vietnam veteran and prisoner of the North 
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Vietnamese from October 1967 to March 1973, has written:

        The fact is, the principles for which we fought, for 
        which our comrades died, are advancing everywhere upon 
        the Earth, while the principles against which we fought 
        are everywhere discredited and rejected. The flag 
        burners have lost, and their defeat is the most fitting 
        and thorough rebuke of their principles which the human 
        could devise. Why do we need to do more? An act 
        intended merely as an insult is not worthy of our 
        fallen comrades. It is the sort of thing our enemies 
        did to us, but we are not them, and we must conform to 
        a different standard. . . . Now, when the justice of 
        our principles is everywhere vindicated, the cause of 
        human liberty demands that this amendment be rejected. 
        Rejecting this amendment would not mean that we agree 
        with those who burned our flag, or even that they have 
        been forgiven. It would, instead, tell the world that 
        freedom of expression means freedom, even for those 
        expressions we find repugnant.\17\
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    \17\ See Hearing on H.J. Res. 54, Proposing an Amendment to the 
Constitution of the United States Before the Subcomm. on the 
Constitution of the House Comm. on the Judiciary, 105th Cong., 2nd 
Sess. (April 30, 1997) [hereinafter 1997 House Judiciary Hearings] 
(statement of Jim Warner). These thoughts are echoed by Terry Anderson, 
a former U.S. Marine Staff Sergeant and Vietnam veteran who was held 
hostage in Lebanon, who wrote that ``[H.J. Res. 54] is an extremely 
unwise restriction of every American's Constitutional rights. The 
Supreme Court has repeatedly held that the First Amendment protects 
symbolic acts under its guarantee of free speech. Burning or otherwise 
damaging a flag is offensive to many (including me), but it harms no 
one and is so obviously an act of political speech that I'm amazed 
anyone could disagree with the Court.'' (Id. statement of Terry 
Anderson).

    And there can be no doubt that ``symbolic speech'' relating 
to the flag falls squarely within the ambit of traditionally 
protected speech. Our nation was borne in the dramatic symbolic 
speech of the Boston Tea Party, and our courts have long 
recognized that expressive speech associated with the flag is 
protected speech under the First Amendment.
    Beginning in 1931 with Stromberg v. California \18\ and 
continuing through the mid-1970's with Smith v. Goguen \19\ and 
Spence v. Washington,\20\ the Supreme Court has consistently 
recognized that flag-related expression is entitled to 
constitutional protection. Indeed, by the time Gregory Johnson 
was prosecuted for burning a U.S. flag outside of the 
Republican Convention in Dallas, the State of Texas readily 
acknowledged that Johnson's conduct constituted ``symbolic 
speech'' subject to protection under the First Amendment.\21\ 
Those who seek to justify H.J. Res. 36 on the grounds that flag 
desecration does not constitute ``speech'' are therefore 
denying decades of well understood court decisions.\22\
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    \18\ 283 U.S. 359 (1931) (State statute prohibiting the display of 
a ``red flag'' overturned). Absent this decision, a State could 
theoretically have prevented its citizens from displaying the U.S. 
flag.
    \19\ 415 U.S. 94 (1972).
    \20\ 418 U.S. 405 (1974) (overturning convictions involving wearing 
a flag patch and attaching a peace sign to a flag).
    \21\ Texas v. Johnson, 491 U.S. at 397.
    \22\ See also, Note, The Supreme Court--Leading Cases, 103 Harv. L. 
Rev. 137, 152 (1989) (``the majority opinion [in Johnson] is a 
relatively straightforward application of traditional first amendment 
jurisprudence''); Sheldon H. Nahmod, The Sacred Flag and the First 
Amendment, 66 Ind. L.J. 511, 547 (1991) (``Johnson is an easy case if 
well-established first amendment principles are applied to it''). 
Survey results show that the majority of Americans who initially 
indicate support for a flag protection amendment oppose it once they 
understand its impact on the Bill of Rights. In a 1995 Peter Hart poll, 
64 percent of registered voters surveyed said they were in favor of 
such an amendment, but when asked if they would op pose or favor such 
an amendment if they knew it would be the first in our Nation's history 
to restrict freedom of speech and freedom of political protest, support 
plummeted from 64 percent to 38 percent.
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    While we deplore the burning of an American flag in hatred, 
we recognize that it is our allowance of this conduct that 
reinforces the strength of the Constitution. As one Federal 
court wrote in a 1974 flag burning case, ``[T]he flag and that 
which it symbolizes is dear to us, but not so cherished as 
those high moral, legal, and ethical precepts which our 
Constitution teaches.'' \23\ The genius of the Constitution 
lies in its indifference to a particular individual's cause. 
The fact that flag burners are able to take refuge in the First 
Amendment means that every citizen can be assured that the Bill 
of Rights will be available to protect his or her rights and 
liberties should the need arise.
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    \23\ U.S. ex rel Radich v. Criminal Court of N.Y., 385 F. Supp. 
165, 184 (1974).
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    H.J. Res. 36 will also open the door to selective 
prosecution based purely on political beliefs. When Peter 
Zenger was charged with ``seditious libel'' in the very first 
case involving freedom of speech on American soil, his lawyer, 
James Alexander warned:

        The abuses of freedom of speech are the excrescences of 
        Liberty. They ought to be suppressed; but whom dare we 
        commit the care of doing it? An evil Magistrate, 
        entrusted with power to punish Words, is armed with a 
        Weapon the most destructive and terrible. Under the 
        pretense of pruning the exuberant branches, he 
        frequently destroys the tree.\24\
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    \24\ Philadelphia Gazette, Nov. 17, 1737, quoted in Levy, Legacy of 
Suppression 135 (1960).

    The history of the prosecution of flag desecration in this 
country bears out these very warnings. The overwhelming 
majority of flag desecration cases have been brought against 
political dissenters, while commercial and other forms of flag 
desecration have been almost completely ignored. An article in 
Art in America points out that during the Vietnam War period, 
those arrested for flag desecration were ``invariably critics 
of national policy, while `patriots' who tamper with the flag 
are overlooked.'' \25\ Whitney Smith, director of the Flag 
Research Center has further observed that commercial misuse of 
the flag was ``more extensive than its misuse by leftists or 
students, but this is overlooked because the business interests 
are part of the establishment.\26\
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    \25\ See Robert J. Goldstein, supra note 4, at 154.
    \26\ Id.
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    Supporters of H.J. Res. 36 argue that many flag desecration 
``incidents'' involve the burning of the flag. Yet the burning 
of the flag is also considered to be the proper way to retire a 
flag, and such flag burning events are common throughout the 
country.\27\ H.J. Res. 36 seeks to alter the present First 
Amendment implications of flag burning. It is clear under H.J. 
Res. 36 that burning a flag while saying something respectful 
would not be inconsistent with the proposed Amendment, while 
burning a flag while saying something which offended the local 
sheriff could be a criminal offense. Thus, what would be 
regulated by H.J. Res. 36 is not the physical action of burning 
a flag, but the sentiments expressed with the burning.
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    \27\ A June 19, 2001 search of recent news articles conducted by 
the Congressional Research Service revealed four articles, all of which 
referred to flag burning by the American Legion. See ``Wayne Briefly,'' 
The Detroit News June 10, 2001, at 3 (the town of Dearborn, Michigan 
would burn tattered American flags during its annual Flag Day ceremony 
from 6:00 to 7:00 p.m. on June 14, 2001); Sonia Csencsits, ``Ex-POW 
Tells What To Do Before Disrespecting Flag--Ask Someone To Whom It's 
Meaningful, He Urges at Disposal Event,'' The Morning Call, June 10, 
2001, at B3 (The town of Bethlehem, PA disposed of more than 7,000 
flags by burning them. ``Orange flames engulfed the flags as veterans 
and members of Boy Scout Troop 352, Bethlehem, solemnly dropped flags 
of all sizes into a 55-gallon drum. Often flames leaped more than 4 
feet in the air as others from the audience chose flags from among 
those piled high on two picnic tables, ready for disposal.''); LaTanya 
Letcher & Sue Ter Maat, ``War Dog Memorial To Be Unveiled in 
Streamwood,'' Chicago Daily Herald, May 24, 2001, at C1 (the annual 
Memorial Day walk in Bartlett, Illinois would include a flag retirement 
ceremony where 13 flags would be burned); Melissa Eiselein, ``Legion 
Shares Etiquette, Symbolism of Old Glory,'' The Press-Enterprise, June 
14, 2001, at B02 (flags would be destroyed in a ceremony on July 3). No 
incidents of flag burning aside from these American Legion events were 
found.
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    Almost as significant as the damage H.J. Res. 36 would do 
to our own Constitution, is the harm it will inflict on our 
international standing in the area of human rights. 
Demonstrators who cut the communist symbols from the center of 
the East German and Romanian flags prior to the fall of the 
Iron Curtain committed crimes against their country's laws, yet 
freedom-loving.
    Americans justifiably applauded these brave actions. If we 
are to maintain our moral stature in matters of human rights, 
it is essential that we remain fully open to unpopular dissent, 
regardless of the form it takes.\28\
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    \28\ See, e.g., 1997 House Judiciary Hearings, supra note 5 
(statement of PEN American Center, Feb. 5, 1997) (``To allow for the 
prosecution of [flag burners] would be to dilute what has hitherto been 
prized by Americans everywhere as a cornerstone of our democracy. The 
right to free speech enjoys more protection in our country than perhaps 
any other country in the world.'').
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    To illustrate, when the former Soviet Union adopted 
legislation in 1989 making it a criminal offense to 
``discredit'' a public official, Communist officials sought to 
defend the legislation by relying on, among other things, the 
United States Flag desecration statute.\29\ By adopting H.J. 
Res 36 we will be unwittingly encouraging other countries to 
enact and enforce other more restrictive limitations on speech 
while impairing our own standing to protest such actions.
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    \29\ Rotunda, supra note 7, Sec. 20.49 at 352.
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             H.J. RES. 36 IS WRONG AS A MATTER OF PRECEDENT

    Adoption of H.J. Res. 36 will also create a number of 
dangerous precedents in our legal system. The Resolution will 
encourage further departures from the First Amendment and 
diminish respect for our Constitution.
    If we approve H.J. Res. 36, it is unlikely to be the last 
time Congress acts to restrict our First Amendment liberties. 
As President Reagan's Solicitor General Charles Fried testified 
in 1990:

        Principles are not things you can safely violate ``just 
        this once.'' Can we not just this once do an injustice, 
        just this once betray the spirit of liberty, just this 
        once break faith with the traditions of free expression 
        that have been the glory of this nation? Not safely; 
        not without endangering our immortal soul as a nation. 
        The man who says you can make an exception to a 
        principle, does not know what a principle is; just as 
        the man who says that only this once let's make 2 + 2 = 
        5 does not know what it is to count.\30\
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    \30\ Measures to Protect the American Flag, Hearing Before the 
Senate Comm. on the Judiciary, 101st Cong., 2d Sess. (June 21, 1990) 
(statement of Charles Fried at 113) [hereinafter 1990 Senate Judiciary 
Hearings].

    Adoption of H.J. Res. 36 will also diminish and trivialize 
our Constitution.\31\ If we begin to second guess the courts' 
authority concerning matters of free speech, we will not only 
be carving an awkward exception into a document designed to 
last for the ages, but will be undermining the very structure 
created under the Constitution to protect our rights. This is 
why Madison warned against using the amendment process to 
correct every perceived constitutional defect, particularly 
concerning issues which inflame public passion.\32\ 
Conservative legal scholar Bruce Fein emphasized this concern 
when he testified before the Subcommittee at 1995 House 
Judiciary hearings:
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    \31\ Inserting the term ``desecration'' into the Constitution would 
in and of itself seem highly inappropriate. Webster's New World 
Dictionary defines ``desecrate'' as ``to violate the sacredness of,'' 
and in turn defines ``sacred'' as ``consecrated to a god or God; holy; 
or having to do with religion.'' The introduction of these terms could 
create a significant tension within our constitutional structure, in 
particular with the religion clause of the First Amendment.
    \32\ Legal philosopher Lon Fuller also highlighted this very 
problem over four decades ago: ``We should resist the temptation to 
clutter up [the Constitution with amendments relating to substantive 
matters. In that way we avoid] . . . the obvious unwisdom of trying to 
solve tomorrow's problems today. But [we also escape the] more 
insidious danger of the weakening effect [such amendments] have on the 
moral force of the Constitution itself.'' L. Fuller, American Legal 
Philosophy at Mid-Century, 6 J.L. Ed. 457, 465 (1954), as cited in 
Hearings on Proposed Flag Desecration Amendment before the Subcomm. on 
Constitution of the Senate Comm. on the Judiciary, 104th Cong., 1st 
Sess. (June 6, 1995) [hereinafter, 1995 Senate Judiciary Hearings] 
(statement of Gene R. Nichol).

        While I believe the Johnson and Eichman decisions were 
        misguided, I do not believe a Constitutional amendment 
        would be a proper response. . . . To enshrine authority 
        to punish flag desecrations in the Constitution would 
        not only tend to trivialize the Nation's Charter, but 
        encourage such juvenile temper tantrums in the hopes of 
        receiving free speech martyrdom by an easily beguiled 
        media. . . . It will lose that reverence and 
        accessibility to the ordinary citizen if it becomes 
        cluttered with amendments overturning every wrong-
        headed Supreme Court decision.\33\
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    \33\ 1995 House Judiciary Hearings, supra note 3 (statement of 
Bruce Fein at 1-2).

    And, as Professor Norman Dorsen points out in his 
testimony, ``not including the Bill of Rights, which was 
ratified in 1791 as part of the original pact leading to the 
Constitution, only 17 amendments have been added to it, and 
very few of these reversed constitutional decisions of the 
Supreme Court. To depart from this tradition now . . . would be 
an extraordinary act that could lead to unpredictable mischief 
in coming years.'' \34\
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    \34\ See 1997 House Judiciary Hearings, supra note 5 (statement of 
Professor Norman Dorsen, New York University School of Law).
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             H.J. RES. 36 IS WRONG AS A MATTER OF PRACTICE

    As a practical matter, H.J. Res. 36 is so poorly drafted 
and conceived that there can be no doubt it will open up a 
``Pandora's Box'' of litigation. Not only are its terms 
incredibly open-ended and vague, but the Resolution gives us no 
guidance as to its intended Constitutional scope or parameter. 
While the amendment's supporters claim they are merely drawing 
a line between legal and illegal behavior, in actuality, they 
are drawing no line at all, but merely granting the Federal 
Government open-ended authority to prosecute dissenters who use 
the flag in a manner deemed inappropriate.
    There is little understanding or consensus concerning the 
meaning of such crucial terms as ``desecration'' and ``flag of 
the United States.'' Depending on the statute ultimately 
adopted under the Amendment's authority, ``desecration'' could 
apply to canceling flag postage stamps or use of the flag by 
Olympic athletes. The term ``flag of the United States'' could 
include underwear from the ``Tommy Hilfiger'' collection as 
well as a Puerto Rican flag including a likeness of the U.S. 
flag.\35\
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    \35\ 1995 House Judiciary Hearings, supra note 3 (statement of 
Representative Serrano). See also, Rotunda, supra note 7, Sec. 20.49 at 
Sec. 90 (If we adopt laws outlawing flag desecration ``there will be 
future problems defining what is a flag. Will it be a crime for someone 
to burn a flag? Or burning fireworks in the shape of an American flag? 
May a movie director (filming Francis Scott Key watching Fort McHenry) 
order that the American flag of 1812 be shot at and otherwise defaced? 
Will it be a crime for the post office to cancel (i.e. deface) a stamp 
that has on it a copy of the American flag? If a flag design is on a 
birthday cake, will it be a Federal crime to light the birthday candies 
on the cake? Will cutting the cake deface it? Is it defacing the flag 
to display it upside down?'').
---------------------------------------------------------------------------
    The Resolution's sponsors also appear to have little 
understanding as to its Constitutional scope or breadth. H.J. 
Res. 36 gives us no guidance whatsoever as to what if any 
provisions of the First Amendment, the Bill of Rights, or the 
Constitution in general that it is designed to overrule.\36\ 
During debate of the 1995 proposed amendment, amendment sponsor 
Charles Canady (R-FL) asserted that the flag desecration 
amendment would simply restore the status quo before the 
Supreme Court ruled in 1989.\37\ He later insisted, however, 
that the amendment would also allow the States to criminalize 
wearing clothing with the flag on it.\38\ The latter 
interpretation goes well beyond overturning Johnson and 
indicates that the flag desecration amendment could permit 
prosecution under statutes that were otherwise 
unconstitutionally void for vagueness. For example, the Supreme 
Court in 1974 declared unconstitutionally vague a statute that 
criminalized treating the flag contemptuously and did not 
uphold the conviction of an individual wearing a flag patch on 
his pants.\39\ Rep. Canady's interpretation of the flag 
desecration amendment would allow such a prosecution despite 
the statute's vagueness.
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    \36\ Since H.J. Res. 36 is drafted to modify the entire 
Constitution, rather than any portion of the First Amendment, it is 
unclear whether and to what extent it will supersede provisions in the 
Bill of Rights relating to ``void for vagueness'' (First and Fifth 
Amendments), overbreadth and least restrictive alternatives test (First 
Amendment), search and seizure (Fourth Amendment), due process and 
self-incrimination (Fifth Amendment), cruel and unusual punishment 
(Eighth Amendment) and provisions in the Constitution relating to the 
supremacy clause (Article VI, Section 2) and the speech and debate 
clause (Article 1, Section 6). See e.g., 1990 Senate Judiciary 
Hearings, supra note 29 (statement of Walter Dellinger); William Van 
Alstyne, Stars and Stripes and Silliness Forever, Legal Times, at 34 
(October 2, 1989).
    \37\ House Comm. on the Judiciary, Markup Session of H.J. Res. 79, 
104th Cong., 1st Sess. 109 (1995).
    \38\ Id. at 110.
    \39\ Smith v. Goguen, 415 U.S. 566, 568-69 (1974).
---------------------------------------------------------------------------
    It is insufficient to respond to these concerns by 
asserting that the courts can easily work out the meaning of 
the terms in the same way that they have given meaning to other 
terms in the Bill of Rights such as ``due process.'' Unlike the 
other provisions of the Bill of Rights, H.J. Res. 36 represents 
an open-ended and unchartered invasion of our rights and 
liberties, rather than a back-up mechanism to prevent the 
government from usurping our rights.

                               CONCLUSION

    Adoption of H.J. Res. 36 will undermine our commitment to 
freedom of expression and do real damage to the constitutional 
system set up by our forefathers. If we amend the Constitution 
to outlaw flag desecration, we will be joining ranks with 
countries such as China and Iran and the regimes of the former 
Soviet Union and South Africa.\40\
---------------------------------------------------------------------------
    \40\ Roman Rolinick, ``Flag Amendment would put U.S. with Iran, 
China,'' UPI (July 1, 1989).
---------------------------------------------------------------------------
    We believe we have come too far as a nation to risk 
jeopardizing our commitment to freedom in such a fruitless 
endeavor to legislate patriotism. As the Court wrote in West 
Virginia State Board of Education v. Barnette:

        [The] ultimate futility of . . . attempts to compel 
        coherence is the lesson of every such effort from the 
        Roman drive to stamp out Christianity as a disturber of 
        its pagan unity, the Inquisition as a means to 
        religious and dynastic unity, the Siberian exiles as a 
        means of Russian unity, down to the last failing 
        efforts of our present totalitarian enemies. Those who 
        begin coercive elimination of dissent soon find 
        themselves exterminating dissenters. Compulsory 
        unification of opinion achieves only the unanimity of 
        the graveyard.\41\
---------------------------------------------------------------------------
    \41\ 319 U.S. at 641.

    If we adopt H.J. Res. 36, we will be denigrating the vision 
of Madison and Jefferson, and glorifying the simple-mindedness 
of Johnson and Eichman. If we tamper with our Constitution, we 
will have turned the flag, an emblem of unity and freedom, into 
a symbol of intolerance. We will not go on record as supporting 
a proposal which will do what no foreign power has been able to 
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do--limit the freedom of expression of the American people.

                                   John Conyers, Jr.
                                   Barney Frank
                                   Howard L. Berman
                                   Jerrold Nadler
                                   Robert C. Scott
                                   Melvin L. Watt
                                   Zoe Lofgren
                                   Sheila Jackson Lee
                                   Maxine Waters
                                   Tammy Baldwin

