[House Report 108-131]
[From the U.S. Government Publishing Office]



108th Congress                                                   Report
                        HOUSE OF REPRESENTATIVES
 1st Session                                                    108-131

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



 
                FLAG PROTECTION CONSTITUTIONAL AMENDMENT

                                _______
                                

June 2, 2003.--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. 4]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on the Judiciary, to whom was referred the 
joint resolution (H.J. Res. 4) 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.........................................................     9
Committee Consideration..........................................     9
Vote of the Committee............................................    10
Committee Oversight Findings.....................................    11
New Budget Authority and Tax Expenditures........................    11
Congressional Budget Office Cost Estimate........................    11
Performance Goals and Objectives.................................    13
Constitutional Authority Statement...............................    13
Section-by-Section Analysis and Discussion.......................    13
Changes in Existing Law Made by the Bill, as Reported............    14
Markup Transcript................................................    14
Dissenting Views.................................................    55

                          Purpose and Summary

    House Joint Resolution 4 proposes to amend the Constitution 
of the United States to restore to Congress the authority that 
it possessed for over 200 years to prohibit the physical 
desecration of the American flag. The proposed resolution 
simply states: ``The Congress shall have power to prohibit the 
physical desecration of the flag of the United States.'' This 
proposed amendment, by itself, does not effectively prohibit 
the physical desecration of the flag. Rather, H.J. Res. 4 
merely gives Congress authority to legislate in this area and 
sets boundaries by which Congress can enact legislation, if it 
so chooses, to prohibit such conduct. For more than two 
centuries, Congress and the States possessed such power without 
constitutional objection. It was not until the United States 
Supreme Court decision in Texas v. Johnson \1\ in 1989 that the 
traditional interpretation and understanding of the First 
Amendment was effectively altered. Prior to the Johnson ruling, 
forty-eight states and the Federal Government had outlawed such 
conduct consistent with the Bill of Rights. Today, all fifty 
states have passed resolutions calling on Congress to approve a 
constitutional amendment to protect the flag and to send it to 
the states for ratification. This proposed constitutional 
amendment has also engendered the consistent support of an 
overwhelming majority of the American public for over a 
decade.\2\ Consistent with the wishes of the American public, 
H.J. Res. 4 will simply restore that original understanding of 
the First Amendment which was approved by our Founding Fathers 
and had been in place since our country's very existence, 
allowing Congress to prohibit the physical desecration of the 
American flag.
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    \1\ 491 U.S. 397 (1989).
    \2\ See Public Opinion Poll by Market Strategies, Inc. (March 13, 
2002) at http://www.cfa-inc.org/issues/poll2.htm (finding seventy-five 
percent (75%) of Americans support such an amendment).
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                Background and Need for the Legislation

    The flag of the United States of America is the most 
recognized symbol of freedom and democracy in the world today. 
Ever since the flag was adopted in a resolution by the 
Continental Congress on June 14, 1777,\3\ the flag has served a 
unique role as the symbol of our country's values and the 
embodiment of the rights guaranteed to all Americans under the 
Constitution. Indeed, Thomas Jefferson, the author of the 
Declaration of Independence, and James Madison, commonly 
referred to as the Father of the Constitution, both supported 
government actions to prohibit flag desecration and believed 
such prohibitions to be consistent with the First Amendment.\4\ 
The movement to pass specific legislation prohibiting the 
desecration of the American flag began in the late 1800's, with 
all of the states having flag desecration laws on the books by 
1932.\5\ In 1968, the Federal Government passed its statute 
prohibiting such conduct.\6\ By 1989, every state in the Union 
except Alaska and Wyoming outlawed such conduct.\7\
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    \3\ 8 Journal of the Continental Congress 1774-1789 at 464 (W. Ford 
ed. 1907).
    \4\ Thomas Jefferson, while serving as George Washington's 
Secretary of State, instructed American consuls to punish ``usurpation 
of our flag.'' Amicus Curiae Brief for the Speaker and Leadership Group 
of the U.S. House of Representatives at 33, United States v. Eichman, 
496 U.S. 310 (1990) [hereinafter ``Brief''], citing 9 Writings of 
Thomas Jefferson 49 (mem. ed. 1903). James Madison pronounced a flag 
defacement in Philadelphia as actionable in Court. As Judge Robert Bork 
described this historic pronouncement: ``The tearing down in 
Philadelphia in 1802 of the flag of the Spanish Minister `with the most 
aggravating insults,' was considered actionable in the Pennsylvania 
courts as a violation of the law of nations.'' Brief at 34, citing 4 J. 
Moore, Digest of International Law 627 (1906) (quoting letter from 
Secretary of State Madison to Governor McKean (May 11, 1802)).
    \5\ Desecrating the American Flag: Key Documents of the Controversy 
From the Civil War to 1995 at xix (Robert Justin Goldstein ed., 1996).
    \6\ Pub. L. No. 90-381, 82 Stat. 291 (codified as amended at 18 
U.S.C. Sec. 700 (2003)).
    \7\ See Johnson, 491 U.S. at 428 n.1 (1989) (C.J., dissenting)
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    Throughout our nation's history, there have been countless 
acts of such desecration. Since 1994 alone, there have been 
over 115 reported incidents of flag desecration in 35 states, 
the District of Columbia, and Puerto Rico.\8\ States and the 
Federal Government, however, have been prevented from 
proscribing such acts since the United States Supreme Court's 
ruling in Texas v. Johnson \9\ in 1989. In Johnson, the Supreme 
Court held in a 5-4 decision that burning an American flag as 
part of a political demonstration was expressive conduct 
protected by the First Amendment to the United States 
Constitution. In that case, Gregory Johnson was convicted of 
violating a Texas law prohibiting the desecration of a 
``venerated object'' after he publicly burned a stolen American 
flag in a protest outside of the 1984 Republican National 
Convention in Dallas, Texas. 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.'' \10\ His conviction 
was upheld by the Court of Appeals for the Fifth District of 
Texas, but reversed by the Texas Court of Criminal Appeals. The 
United States Supreme Court subsequently affirmed the holding 
of the Texas Court of Criminal Appeals, finding that the act of 
burning an American flag during a protest rally was expressive 
conduct entitled to protection under the First Amendment.
---------------------------------------------------------------------------
    \8\ While opponents of H.J. Res. 4 argue that there are few 
incidents of flag desecration occurring today, they overlook the 
overarching point. It is not the number of flag desecrations that 
matter so much as the actual act of flag desecration itself. If there 
had only been one act of flag desecration in the more than 200 hundred 
years since our country's founding, and an overwhelming majority of the 
American public along with every single state legislature called for a 
remedy to this problem, then it would necessarily fall to Congress to 
address and rectify this issue pursuant to the wishes of the American 
citizenry and in accordance with the process set forth in Article V of 
the Constitution.
    \9\ 491 U.S. 397 (1989)
    \10\ Tex. Penal Code Ann. Sec. 42.09 (1989), ``Desecration of 
Venerated Object,'' provided as follows:
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  (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.
    Chief Justice Rehnquist filed a dissenting opinion in which 
Justices O'Connor and White joined.\11\ Rehnquist noted the 
unique history of the American flag:
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    \11\ 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.\12\
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    \12\ Johnson, 491 U.S. at 429 (Rehnquist, C.J., dissenting).

Rehnquist also found persuasive the opinions of former Chief 
Justice Earl Warren and former Justices Hugo Black and Abe 
Fortas, which had noted that the states and the Federal 
Government had the power to protect the flag from desecration 
and disgrace.\13\
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    \13\ In Street v. New York, 394 U.S. 576 (1969), these three 
legendary Justices set forth their views on the government's regulation 
of acts of flag desecration. Former Chief Justice Earl Warren stated, 
``I believe that the States and the Federal Government do have power to 
protect the flag from acts of desecration and disgrace.'' Id. at 605 
(Warren, C.J., dissenting). In a similar tone, former Justice Hugo 
Black noted, ``It passes my belief that anything in the Federal 
Constitution bars . . . making the deliberate burning of the American 
flag an offense.'' Id. at 610 (Black, J., dissenting). Finally, former 
Justice Abe Fortas remarked that ``the States and the Federal 
Government have the power to protect the flag from acts of desecration 
in public. . . . [T]he flag is a special kind of personality. Its use 
is traditionally and universally subject to special rules and 
regulations. . . .'' Id. at 615-617 (Fortas, J., dissenting).
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  It is also interesting to note that just a few years later, former 
Justice Byron White reinforced this view in expounding a similar 
interpretation of the Constitution: ``There is no doubt in my mind that 
it is well within the powers of Congress to adopt and prescribe a 
national flag and to protect the integrity of that flag.'' Smith v. 
Goguen, 415 U.S.566, 586 (1974).
    In response to the Johnson decision, Congress approved the 
``Flag Protection Act of 1989'' \14\ in September 1989 by a 
vote of a 371 to 43 in the House and 91-9 in the Senate. The 
Act amended the Federal flag statute, 18 U.S.C. Sec. 700, in an 
attempt 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.'' \15\
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    \14\ Pub. L. No. 101-131, 103 Stat. 777.
    \15\ ``Flag Protection Act of 1989,'' H. Rep. No. 101-231, 101st 
Cong., 1st Sess. 2 (1989). The Act became law without the President's 
signature on October 28, 1989.
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    On June 11, 1990, in United States v. Eichman,\16\ the 
United States Supreme Court, in another 5-4 decision, struck 
down the recently-enacted ``Flag Protection Act of 1989,'' 
ruling that the Act 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 Flag Protection 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.
---------------------------------------------------------------------------
    \16\ 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. . . . [T]he 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. . . . 
        Rather, the Government's desire to preserve the flag as 
        a symbol for certain national ideals is implicated 
        ``only when a person's treatment of the flag 
        communicates [a] message'' to others that is 
        inconsistent with those ideals.\17\
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    \17\ 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 that ``the Government may not prohibit the expression 
of an idea simply because society finds the idea itself 
offensive or disagreeable.'' \18\ He went on, however, to note 
that methods of expression may be prohibited under a number of 
circumstances and set forth the following standard:
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    \18\ Id. at 319 (Stevens, J., dissenting).

        If (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.\19\
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    \19\ Id.

Justice Stevens believed that the statute at issue in this case 
satisfied each of these concerns and thus should have been held 
constitutional.
    As the Johnson and Eichman decisions illustrate, a 
statutory remedy is not, and will never be, sufficient to 
correct the problem of flag desecration. Therefore, the only 
avenue remaining by which Congress can validly protect the 
American flag from acts of desecration is through a 
constitutional amendment. The Framers of the Constitution 
understood that there would be times in our nation's history 
necessitating a change in the Constitution and hence provided 
the people with an amendment process embodied in Article V of 
the Constitution.\20\ While there have been over 11,000 
constitutional amendments proposed since the ratification of 
the Bill of Rights, there have only been 17 amendments actually 
approved and ratified to be included in the Constitution.\21\ 
Some amendments have been used to correct mistaken Court 
decisions, as H.J. Res. 4 intends to do, and it is this process 
that is absolutely vital to maintaining the democratic 
legitimacy of the Constitution and of judicial review itself.
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    \20\ See U.S. Const. art. V.
    \21\ See Flag Protection Amendment: Hearing Before the Subcomm. on 
the Constitution of the House Comm. on the Judiciary, 108th Cong., 1st 
Sess. (statement of Professor Richard D. Parker, Harvard Law School).
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                H.J. RES. 4 DOES NOT AMEND OR OTHERWISE 
                     UNDERMINE THE FIRST AMENDMENT

    Opponents of H.J. Res. 4 argue that the proposed 
constitutional amendment will amend the Bill of Rights for the 
first time in our nation's history and significantly undermine 
rights guaranteed under the First Amendment. H.J. Res. 4, 
however, will not alter the First Amendment in the slightest. 
The express language of the First Amendment does not 
specifically forbid protection of the flag. Indeed, for over 
two centuries, the First Amendment was understood to permit 
flag protection. It was not until the United States Supreme 
Court in a 5-4 opinion just fourteen years ago that this long-
standing interpretation was altered. Conduct has always, and 
continues to be, regulated by the Government under valid 
constitutional interpretation. This type of conduct was 
regulated in the past without prosecutorial abuse or 
exaggerated implementation, illustrating that the same can 
occur once again in the future.\22\
---------------------------------------------------------------------------
    \22\ Some opponents of H.J. Res. 4 claim that unconscionable 
enforcement will result from ratification of this proposed 
constitutional amendment by giving the example that actors portraying 
the burning of the American flag on film or on stage will be prosecuted 
pursuant to the amendment. Whether this is an actual fear of the 
opponents of H.J. Res. 4 or just a ploy to build hysteria in opposition 
to the amendment is irrelevant. What is relevant however, is the fact 
that just as there were no prosecutions of this type before 1989, there 
will be no such prosecutions in the future under this proposed 
amendment. To say that an actor could be prosecuted for such conduct 
under this constitutional amendment would be like saying an actor who 
``murders'' someone on the big screen could be prosecuted for 
homicide--an illogical and erroneous conclusion. The issue of 
implementation will ultimately be debated at great lengths when 
Congress considers an authorizing statute for this constitutional 
amendment.
---------------------------------------------------------------------------
    H.J. Res. 4 seeks only to correct the Supreme Court's 
conclusions in Johnson and Eichman, which improperly 
characterized flag desecration as expressive speech when in 
fact almost any act can be construed as expressive speech. Both 
state and Federal criminal codes prohibit conduct that could 
conceivably be cloaked in the First Amendment, yet their 
constitutionality is unquestioned. For instance, burning a $10 
bill, urinating in public, pushing over a tombstone, or 
parading through the streets naked are all actions which can be 
utilized to express a particular political or social message 
but are unquestionably illegal. These types of conduct are not 
forms of argument in which the robust exchange of ideas occur 
and neither does such an exchange occur when one desecrates a 
flag.\23\ Rather, these acts are examples of conduct that our 
society has chosen not to condone. Flag desecration was once 
included in that list as a form of conduct our society chose 
not to condone. However, the Supreme Court's opinions in 
Johnson and Eichman usurped the people's will in this respect. 
As illustrated by Article V of the Constitution, however, the 
Founding Fathers intended that ``We the People'' should be the 
final arbiter in deciding what the ultimate law of the land 
is.\24\ The very narrow decision in Johnson is all that will be 
altered by the proposed amendment. H.J. Res. 4 will simply 
effectuate the will of an overwhelming majority of the American 
public in a manner pursuant to the mechanisms of Article V of 
the Constitution by restoring the original meaning to the First 
Amendment that had persisted for over 200 years and preserving 
the First Amendment from recent ``tampering'' by the Supreme 
Court.
---------------------------------------------------------------------------
    \23\ See Johnson, 491 U.S. at 430 (C.J., dissenting). If 
desecrating the flag is speech, although most would argue that it is 
not, then it would fall into the ``certain well-defined and narrowly 
limited classes of speech'' the utterances of which contain ``no 
essential part of any exposition of ideas, and are of such slight 
social value as a step to truth that any benefit that may be derived 
from them is clearly outweighed by the social interest in order and 
morality.'' Chaplinsky v. New Hampshire, 315 U.S. 568, 571-572 (1942).
---------------------------------------------------------------------------
  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, 
Chaplinsky v. New Hampshire, 315 U.S. 568 (1942); obscenity, Miller v. 
California, 413 U.S. 15 (1973); and libel, New York v. Sullivan, 367 
U.S. 254 (1970) are not protected under the First Amendment.
---------------------------------------------------------------------------
    \24\ As Abraham Lincoln stated in his first inaugural address: ``If 
the policy of the government upon vital questions affecting the whole 
people is to be irrevocably fixed by decisions of the Supreme Court . . 
. the people will have ceased to be their own rulers.'' Abraham 
Lincoln, First Inaugural Address (Mar. 4, 1861), reprinted in Inaugural 
Addresses of the Presidents of the United States, S. Doc. No. 101-10, 
p. 139 (1989).
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  PHYSICAL DESECRATION OF THE FLAG IS CONDUCT WHICH CAN BE REGULATED 
                     VALIDLY UNDER THE CONSTITUTION

    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.\25\ However, ``the right of 
free speech is not absolute at all times and under all 
circumstances'' \26\ and not all activity with an expressive 
component is afforded First Amendment protection. In United 
States v. O'Brien,\27\ the United States Supreme Court held 
that certain modes of expression may be prohibited if: (1) the 
government regulation is within the constitutional power of the 
government; (2) the government regulation furthers an important 
or substantial governmental interest; (3) the government 
interest is unrelated to suppression of free expression; and 
(4) the incidental restriction on alleged First Amendment 
freedoms is no greater that is essential to the furtherance of 
that interest.\28\
---------------------------------------------------------------------------
    \25\ Johnson, 491 U.S. at 414.
    \26\ Chaplinsky, 315 U.S. at 571-572.
    \27\ 391 U.S. 367 (1968)
    \28\ Id. at 377.
---------------------------------------------------------------------------
    In O'Brien, the 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, since the law prohibited the conduct regardless of the 
message sought to be conveyed by destruction of the draft card. 
The prohibition also did not preclude other forms of expression 
or protest, and the court held that the smooth functioning of 
the Selective Service System outweighed the need to extend 
First Amendment protections to the act itself.\29\
---------------------------------------------------------------------------
    \29\ Id. at 381.
---------------------------------------------------------------------------
    H.J. Res. 4 simply seeks to remove the physical flag as a 
mode of communication, without regard to the content of such 
speech or the particular viewpoint attempting to be expressed. 
As Justice Stevens noted in Eichman:

        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.\30\
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    \30\ Eichman, 496 U.S. at 322.

The removal of a mode of communication is consistent with past 
pronouncements of the Supreme Court, as the Court has noted 
that ``the First Amendment does not guarantee the right to 
employ every conceivable method of communication at all times 
and in all places.'' \31\ Alternative means of expressing ideas 
are available to political protestors who would have otherwise 
desecrated a flag in order to express their message. H.J. Res. 
4 would deprive an individual of only ``one rather inarticulate 
symbolic form of protest'' and leave that person with ``a full 
panoply of other symbols and every conceivable form of verbal 
expression'' to express whatever it is that one desires to 
express.\32\ Such was the status quo in forty-eight states 
prior to the Johnson ruling in 1989. During this long period 
when flag desecration statutes were valid, wide open debate 
flourished, as it has throughout America's history.
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    \31\ City Council of Los Angeles v. Taxpayers for Vincent, 466 U.S. 
789 (1984).
    \32\ Johnson, 491 U.S. at 432 (Rehnquist, C.J., dissenting).
---------------------------------------------------------------------------

  THE GOVERNMENT HAS A LEGITIMATE INTEREST IN PREVENTING THE PHYSICAL 
                        DESECRATION OF THE FLAG

    The dissents in Johnson and Eichman collectively provide an 
instructive analysis of why Congressional action prohibiting 
flag desecration is a legitimate interest consistent with the 
First Amendment. In Johnson, the Court rejected Texas's attempt 
to prohibit flag desecration because the Court viewed the 
government's interest in the treatment of the flag as only 
arising ``when a person's treatment of the flag communicates 
some message[,]' thus making it ``related `to the suppression 
of free expression.' '' \33\ The governmental interest in 
preserving the symbolic value of the Flag, however, is present 
regardless of the message sought to be conveyed by any 
particular act of flag desecration. H.J. Res. 4 does not seek 
to express approval of, nor does it seek to suppress, the 
content of speech or any particular viewpoint.\34\ Justice 
Stevens's dissent in Johnson extolled the significant and 
legitimate interest in preserving the flag:
---------------------------------------------------------------------------
    \33\ Id. at 410.
    \34\ Justice Stevens provided the best analogy to this legitimate 
governmental interest cloaked in content-neutrality in a footnote in 
Johnson:

      It seems obvious that a prohibition against the desecration 
      of a gravesite is content neutral even if it denies some 
      protesters the right to make a symbolic statement by 
      extinguishing the flame in Arlington Cemetery where John F. 
      Kennedy is buried while permitting others to salute the 
      flame by bowing their heads. Few would doubt that a 
      protester who extinguishes the flame has desecrated the 
      gravesite, regardless of whether he prefaces that act with 
      a speech explaining that his purpose is to express deep 
      admiration or unmitigated scorn for the late President. 
      Likewise, few would claim that the protester who bows his 
      head has desecrated the gravesite, even if he makes clear 
      that his purpose is to show disrespect. In such a case, as 
      in a flag burning case, the prohibition against desecration 
      has absolutely nothing to do with the content of the 
---------------------------------------------------------------------------
      message that the symbolic speech is intended to convey.

Id. at 439 n.* (Stevens, J., dissenting).

        [S]anctioning the public desecration of the flag will 
        tarnish its value--both for those who cherish the ideas 
        for which it waves and for those who desire to don the 
        robes of martyrdom by burning it. That tarnish is not 
        justified by the trivial burden on free expression 
        occasioned by requiring that an available, alternative 
        mode of expression--including uttering words critical 
        of the flag, see Street v. New York, 394 U.S. 576, 89 
        S.Ct. 1354, 22 L.Ed.2d 572 (1969)--be employed.\35\
---------------------------------------------------------------------------
    \35\ Id. at 437 (Stevens, J., dissenting).

Former Chief Justice John Marshall Harlan echoed these 
sentiments over half a century earlier when he stated that 
``love both of the common country and of the State will 
diminish in proportion as respect for the flag is weakened. 
Therefore a State will be wanting in care for the well-being of 
its people if it ignores the fact that they regard the flag as 
a symbol of their country's power and prestige, and will be 
impatient if any disrespect is shown towards it.'' \36\ Just as 
the Federal Government has a legitimate interest in preserving 
the quality of an important national asset, such as the Lincoln 
Memorial, from desecration, so too does the government have 
just as important an interest in prohibiting the desecration of 
the American flag.\37\
---------------------------------------------------------------------------
    \36\ Halter v. Nebraska, 205 U.S. 34, 41-42 (1907).
    \37\ Johnson, 491 U.S. at 438-439 (Stevens, J., dissenting).
---------------------------------------------------------------------------
    In Eichman, Justice Stevens, joined by Chief Justice 
Rehnquist, Justice White, and Justice O'Connor, began his 
dissent by noting 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.'' \38\ However, Stevens noted that the Federal 
Government has a legitimate interest in protecting the 
intrinsic value of the American flag, because the flag, ``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.'' \39\ 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 will ``tarnish that 
value.'' \40\
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    \38\ Eichman, 496 U.S. at 319 (Stevens, J., dissenting).
    \39\ Id.
    \40\ Id.
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                                Hearings
    The Subcommittee on the Constitution held a hearing on H.J. 
Res. 4 on May 7, 2003. Testimony was received from four 
witnesses, Major General Patrick H. Brady (USA-ret.), Chairman 
of the Board, The Citizens Flag Alliance, Inc.; Lieutenant 
Antonio J. Scannella, The Port Authority of New York and New 
Jersey; Mr. Gary E. May, Chairman, Veterans Defending the Bill 
of Rights; and Professor Richard D. Parker, Harvard Law School. 
Additional material was submitted for the record by one 
organization: The Citizens Flag Alliance, Inc.

                        Committee Consideration
    On May 7, 2003, the Subcommittee on the Constitution met in 
open session and ordered favorably reported to the full 
Committee the joint resolution H.J. Res. 4 without amendment by 
a voice vote, a quorum being present. On May 21, 2003, the 
Committee met in open session and ordered favorably reported 
the joint resolution H.J. Res. 4 without amendment by a 
recorded vote of 18 to 13, a quorum being present.

                         Vote of the Committee
    In compliance with clause 3(b) of rule XIII of the Rules of 
the House of Representatives, the Committee notes that the 
following rollcall votes occurred during the Committee's 
consideration of H.J. Res. 4.
    1. 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.
    2. 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. 4 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 12 to 19.

                                                   ROLLCALL NO. 1
----------------------------------------------------------------------------------------------------------------
                                                                       Ayes            Nays           Present
----------------------------------------------------------------------------------------------------------------
Mr. Hyde........................................................
Mr. Coble.......................................................                              X
Mr. Smith.......................................................                              X
Mr. Gallegly....................................................                              X
Mr. Goodlatte...................................................
Mr. Chabot......................................................                              X
Mr. Jenkins.....................................................                              X
Mr. Cannon......................................................                              X
Mr. Bachus......................................................                              X
Mr. Hostettler..................................................                              X
Mr. Green.......................................................                              X
Mr. Keller......................................................                              X
Ms. Hart........................................................                              X
Mr. Flake.......................................................
Mr. Pence.......................................................                              X
Mr. Forbes......................................................                              X
Mr. King........................................................                              X
Mr. Carter......................................................                              X
Mr. Feeney......................................................                              X
Mrs. Blackburn..................................................                              X
Mr. Conyers.....................................................
Mr. Berman......................................................                              X
Mr. Boucher.....................................................
Mr. Nadler......................................................              X
Mr. Scott.......................................................              X
Mr. Watt........................................................              X
Ms. Lofgren.....................................................              X
Ms. Jackson Lee.................................................              X
Ms. Waters......................................................              X
Mr. Meehan......................................................              X
Mr. Delahunt....................................................
Mr. Wexler......................................................              X
Ms. Baldwin.....................................................              X
Mr. Weiner......................................................              X
Mr. Schiff......................................................              X
Ms. Sanchez.....................................................              X
Mr. Sensenbrenner, Chairman.....................................                              X
                                                                 -----------------------------------------------
    Total.......................................................             12              19
----------------------------------------------------------------------------------------------------------------

    The motion to report H.J. Res. 4 favorably was agreed to by 
a rollcall vote of 18-13.

                                                   ROLLCALL NO. 2
----------------------------------------------------------------------------------------------------------------
                                                                       Ayes            Nays           Present
----------------------------------------------------------------------------------------------------------------
Mr. Hyde........................................................
Mr. Coble.......................................................              X
Mr. Smith.......................................................              X
Mr. Gallegly....................................................              X
Mr. Goodlatte...................................................
Mr. Chabot......................................................              X
Mr. Jenkins.....................................................              X
Mr. Cannon......................................................              X
Mr. Bachus......................................................              X
Mr. Hostettler..................................................              X
Mr. Green.......................................................              X
Mr. Keller......................................................              X
Ms. Hart........................................................              X
Mr. Flake.......................................................
Mr. Pence.......................................................              X
Mr. Forbes......................................................              X
Mr. King........................................................              X
Mr. Carter......................................................              X
Mr. Feeney......................................................              X
Mrs. Blackburn..................................................              X
Mr. Conyers.....................................................                              X
Mr. Berman......................................................                              X
Mr. Boucher.....................................................
Mr. Nadler......................................................                              X
Mr. Scott.......................................................                              X
Mr. Watt........................................................                              X
Ms. Lofgren.....................................................                              X
Ms. Jackson Lee.................................................                              X
Ms. Waters......................................................                              X
Mr. Meehan......................................................                              X
Mr. Delahunt....................................................
Mr. Wexler......................................................                              X
Ms. Baldwin.....................................................                              X
Mr. Weiner......................................................                              X
Mr. Schiff......................................................
Ms. Sanchez.....................................................                              X
Mr. Sensenbrenner, Chairman.....................................              X
                                                                 -----------------------------------------------
    Total.......................................................             18              13
----------------------------------------------------------------------------------------------------------------

                      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.

               New Budget Authority and Tax Expenditures

    Clause 3(c)(2) of rule XIII of the Rules of the House of 
Representatives 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. 4, 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, May 27, 2003.
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. 4, 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 Mark 
Grabowicz (for Federal costs), who can be reached at 226-2860, 
and Marjorie Miller (for the State and local impact), who can 
be reached at 225-3220.
            Sincerely,
                                       Douglas Holtz-Eakin.

Enclosure

cc:
        Honorable John Conyers, Jr.
        Ranking Member
H.J. Res. 4--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. 4 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 7 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. H.J. Res. 4 would not 
affect direct spending or revenues.
    H.J. Res. 4 contains no intergovernmental or private-sector 
mandates as defined in the Unfunded Mandates Reform Act 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 7 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 Mark Grabowicz 
(for Federal costs), who can be reached at 226-2860, and 
Marjorie Miller (for the State and local impact), who can be 
reached at 225-3220. This estimate was approved by Peter H. 
Fontaine, Deputy Assistant Director for Budget Analysis.

                    Performance Goals and Objectives

    H.J. Res. 4 does not authorize funding. Therefore, clause 
3(c)(4) of rule XIII of the Rules of the House of 
Representatives is inapplicable.

                   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 resolution in Article V of the Constitution.

               Section-by-Section Analysis and Discussion

    H.J. Res. 4 simply states: ``The Congress shall have power 
to prohibit the physical desecration of the flag of the Unites 
States.'' It further provides for a 7-year ratification period.
    Congress clearly possessed this power prior to the 
decisions of the United States Supreme Court in Texas v. 
Johnson \41\ and U.S. v. Eichman.\42\ Those decisions held that 
the act of burning a flag during a protest was expressive 
conduct protected by the First Amendment. As interpreted by the 
Supreme Court, the First Amendment to the United States 
Constitution, which states that, ``Congress shall make no law . 
. . abridging freedom of speech,'' limits the power of Congress 
in this respect. H.J. Res. 4 makes clear that Congress does 
have the power to pass legislation to prohibit the physical 
desecration of the flag of the United States.
---------------------------------------------------------------------------
    \41\ 491 U.S. 397 (1989).
    \42\ 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 to decide whether to 
enact legislation to prohibit the physical desecration of the 
flag.
    There are two key issues Congress will need to consider 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.
    In any event, the word ``desecration'' was selected because 
of its broad nature in encompassing many actions against the 
flag. Such broad terms are commonly used in constitutional 
amendments; for example, ``free exercise'' in the First 
Amendment; ``unreasonable searches and seizures'' and 
``probable cause'' in the Fourth Amendment; ``due process'' and 
``equal protection'' in the Fourteenth Amendment. The use of 
broad terms in constitutional amendments, such as the word 
``desecration,'' must continue in order to give Congress 
discretion when it moves to enact implementing legislation. 
Debate and discussion as to what forms of desecration should be 
outlawed, such as burning, will come at a later date in 
Congress. Otherwise, Congress would be restricted and unduly 
limited in achieving its objective and purpose in approving a 
constitutional amendment such as H.J. Res. 4.
    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. The 
flag of the United States may be defined in this future 
authorizing statute 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. A ``flag'' could also be defined as 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 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. However the 
future permutations of these words may develop, that is for a 
future Congress to address.

         Changes in Existing Law Made by the Bill, as Reported

    In compliance with clause 3(e) of rule XIII of the Rules of 
the House of Representatives, the Committee notes H.J. Res. 4 
makes no changes in existing law.

                           Markup Transcript



                            BUSINESS MEETING

                        WEDNESDAY, MAY 21, 2003

                  House of Representatives,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The Committee met, pursuant to notice, at 10:01 a.m., in 
Room 2141, Rayburn House Office Building, Hon. F. James 
Sensenbrenner, Jr. (Chairman of the Committee) presiding.
    [Intervening business.]
    Chairman Sensenbrenner. The next item on the agenda is 
House Joint Resolution 4, 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 resolution H.J. Res. 4 
and moves its favorable recommendation to the full House.
    Chairman Sensenbrenner. Without objection, H.J. Res. 4 will 
be considered as read and open for amendment at any point.
    [The resolution, H.J. Res. 4, follows:]
    
    
    Chairman Sensenbrenner. The Chair recognizes the gentleman 
from Ohio to strike the last word.
    Mr. Chabot. Move to strike the last word. Thank you, Mr. 
Chairman.
    This morning we consider for purposes of markup, House 
Joint Resolution 4, a proposed constitutional amendment to 
restore authority to Congress to prohibit the physical 
desecration of the American flag. The Subcommittee on the 
Constitution, which I chair, held a hearing on the proposed 
amendment on May 7, 2003, with witnesses testifying as to the 
necessity for such authority, and that a proposed 
constitutional amendment is the only means through which 
Congress may restore this protection to our national symbol. 
This is an important proposal, but some will say otherwise.
    The flag is the most recognized symbol of freedom and 
democracy in the world today, and the embodiment of the ideals 
upon which America was founded. It is a national asset that 
helps to preserve our unity, our freedom and our liberty as 
Americans.
    As our country has grown and welcomed those from diverse 
religious and cultural backgrounds, the flag's power to unify 
our Nation has become even more evident, bringing together all 
Americans, young and old, to champion those principles upon 
which this country was built. Vigilant protection of freedom of 
speech, in particular, political speech, is central to our 
political system. Contrary to what some have argued, the Flag 
Protection Amendment will not abridge long-held guarantees of 
free speech embodied in the First Amendment or otherwise limit 
the freedoms guaranteed under the Bill of Rights. Rather, H.J. 
Res. 4 will simply restore the traditional interpretation of 
the First Amendment that had prevailed in this country since 
its founding, that flag burning is conduct that can be validly 
prohibited under the Constitution.
    Until the United States Supreme Court's decision in Johnson 
in 1989, the regulation of such conduct had been viewed as 
compatible with both the letter and the spirit of the First 
Amendment. Even the framers of the Constitution supported this 
conclusion, as both Thomas Jefferson and James Madison strongly 
favored Government action to prohibit flag desecration. The 
approval and ultimate ratification of H.J. Res. 4 will restore 
this traditional interpretation of the First Amendment. As we 
all know, the First Amendment does not grant an individual an 
unlimited right to engage in any form of desired conduct under 
the cloak of free expression. Both State and Federal criminal 
codes are full of examples of conduct that is prohibited in our 
country, regardless of whether it is cloaked in the First 
Amendment. Obscenity laws, libel and slander laws, copyright 
laws, and even perjury laws, all reflect the fact that some 
forms of expression and sometimes even the content of that 
expression may be regulated or even prohibited without 
violating the First Amendment. The Flag Protection Amendment is 
consistent with the First Amendment, while reflecting society's 
interest in maintaining the flag as a national symbol by 
protecting it from acts of physical desecration.
    I would ask my colleagues to join me in restoring the 
original interpretation to the First Amendment that had 
persisted for over 200 years, and with that, the protection to 
the American flag. This amendment is now more important than 
ever and is necessary in order to preserve our values for 
future generations. With this in mind I encourage the Members 
of this Committee to pass this proposed amendment in Committee 
today.
    I yield back the balance of my time.
    [Intervening business.]
    Chairman Sensenbrenner. Who wishes to make the minority 
opening statement on the flag amendment? Gentleman from 
Virginia.
    Mr. Scott. Mr. Chairman, I have an amendment. I can make my 
statement with the amendment.
    Chairman Sensenbrenner. Without objection, all opening 
statements will be placed in the record at this point in time.
    [The prepared 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. Today we endure 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 that Memorial Day will 
soon be upon us, 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 as if the flag somehow needed Congress to protect 
it. The flag is a symbol of a great nation and the fundamental freedoms 
that have made this nation great. If the flag needs protection at all, 
it is from members of Congress who value the symbol more than the 
freedoms the flag represents. Quite frankly the crass political use of 
the flag to question the patriotism of those who value our fundamental 
freedoms is a greater insult to those who died in the service of our 
nation than the burning of the flag. It is the civic equivalent of 
carrying the L-rd's name in vain.
    People have rights in this country that supercede public opinion, 
even strongly held public opinion. 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 
seemingly legitimate individuals and enterprises have engaged in this 
act which our laws define as flag 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.
    At the Subcommittee hearing, I was proud to welcome as a witness an 
officer of the Port Authority Police. No New Yorker who lived through 
that day, the days after, and the memorials we all attended, could ever 
forget their service and how moving it was to see that flag.
    I am, however, getting a bit tired of that act of barbarism being 
used to justify a plethora of political causes. As the President has 
often remarked, the people who murdered 3,000 of my neighbors did so 
because they hated our free society. Yet to use that atrocity to 
justify a curtailment of our freedoms strikes me as a desecration of 
their memory. Similarly, many people who marched against the war 
objected to the political use of their loved ones deaths to justify the 
war. For example, Rita Lasar, became angry when the attacks were used 
to justify the war. Her brother, Abe Zelmanowitz, died in the north 
tower, refusing to leave his quadriplegic coworker. Adele Welty of 
Flushing, whose son, Timothy Welty, was a member of Rescue Squad 288 
and who died in the Trade Center said, ``He would not have wanted 
innocent people killed in his name.'' She was later arrested for her 
dissent against the war.
    So people who claim to speak for the dead of September 11, should 
show a bit of modesty. I represent that community in Congress, and I 
can tell you they do not all hold the same views on this issue. In 
fact, there is probably more opposition to this proposed amendment in 
my district than in almost anywhere else in the country.
    People have 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.
    Thank you, Mr. Chairman.

    [The prepared statement of Ms. Jackson Lee follows:]
       Prepared Statement of the Honorable Sheila Jackson Lee, a 
           Representative in Congress From the State of Texas
    Thank you, Mr. Chairman. I oppose H.J. Res.4, an amendment to the 
Constitution to prohibit physical desecration of the flag of the United 
States. I oppose H.J. Res. 4 because this resolution is an overly broad 
infringement on the First Amendment Right to Freedom of Speech.
    This is not the first time the Judiciary Committee has considered 
this very Amendment to the Constitution. In 1990, Congress considered 
and rejected H.J. Res 350--an Amendment to the U.S. Constitution 
specifying that ``The Congress and the States have the power to 
prohibit the physical desecration of the flag of the United States.'' 
This failed to get the necessary two-thirds congressional majority by a 
vote of 254-177 in the House and 58-43 in the Senate. Again in 1995 
Congress considered the same amendment, H.J. Res. 79, but did not get 
the necessary two third majority vote of the Senate. In 1999, this 
Constitutional Amendment, then call H.J. Res. 33, also failed to be 
passed.
    I renew my opposition to this Constitutional Amendment. Despite my 
opposition, I agree with the proponents of this Constitutional 
Amendment that the American flag is a symbol of all of the principles 
and ideals that this country is built upon--freedom of assembly, 
freedom of religion, equality, and justice to name a few.
    One of the most important ideals that the flag symbolizes is the 
First Amendment protection of freedom of speech. I believe that freedom 
of speech should be protected without condition. The Supreme Court of 
the United States, as it relates to desecration of the flag, appears to 
agree.
    In 1989 the Supreme Court addressed the issue of flag desecration 
as it related to the First Amendment. In Texas v. Johnson, 491 U.S. 
397, the Supreme Court upheld the finding of Texas Court of Criminal 
Appeals that a Texas law that criminalized flag desecration or 
mistreatment in a way that the, ``actor knows will seriously offend one 
or more persons'' was unconstitutionally applied. In a 5-4 decision 
written by Justice Brennan, the court first found that burning the flag 
in political protest was a form of expressive conduct and symbolic 
speech subject to First Amendment protection.
    While the Court acknowledge that Texas had a legitimate interest in 
preserving the flag as a ``symbol of national unity,'' this interest 
was not sufficiently compelling to justify a ``content based'' legal 
restriction on freedom of speech. The potential First Amendment and 
freedom of speech implications of this resolution is most frightening. 
If passed, this would be the first time in our nation's history that we 
have altered the Bill of Rights to drastically limit one of the prized 
freedoms we hold dear. This would be a dangerous precedent to set, thus 
opening the door to the erosion of our other protected fundamental 
freedoms.
    H.J. Res. 4 is particularly dangerous to freedom of speech because 
as written the proposed Constitutional amendment is overly broad and 
vague. It states that, ``Congress shall have power to prohibit the 
physical desecration of the flag of the United States.'' What does the 
term desecration actually mean? Is it the burning of the flag? Flag 
burning is the preferred means of disposing of the flag when it is old.
    The Court noted in Texas v. Johnson, that according to Congress it 
is proper to burn the flag, ``When [the flag] is in such a condition 
that it is no longer a fitting emblem for display.'' What criteria will 
be used to determine when the flag is no longer fit for display and can 
thus be burned without penalty?
    It is rare that a flag is ever burned in our country as a form of 
political speech or otherwise. For example, from 1777 through 1989, 
only 45 incidents of flag burning were reported. Since the Supreme 
Court's decision in 1989, fewer than ten (10) flag burning incidents 
have been reported per year.
    The flag is a symbol of our freedoms. The right to speak openly, 
even if that speech is unpopular, is a freedom. As we consider this 
Amendment we are faced with a difficult question: Do we protect a 
symbol of freedom of speech, or do we protect free speech itself? When 
given the choice, I choose to protect freedom itself over a symbol of 
freedom.
    Mr. Chairman, for these reason, I urge my colleagues to vote no on 
H.J. Res. 4.

    Chairman Sensenbrenner. Are there any amendments? The 
gentleman from Virginia.
    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. 4 offered by Mr. Scott. 
Page 2, line 7, delete ``desecration'' and insert ``burning.''
    [Mr. Scott's amendment follows:]
    
    
    Chairman Sensenbrenner. The gentleman from Virginia is 
recognized for 5 minutes.
    Mr. Scott. Mr. Chairman, this amendment would prohibit, 
would change the constitutional amendment to prohibit flag 
burning. The Supreme Court has considered the restrictions in 
the Bill of Rights are permissible by Government. For example, 
under the First Amendment with respect to speech, time, place 
and manner may generally be regulated, while content cannot. So 
you can restrict the particulars of a march, what time it's 
held, where it's held, but you can't restrict what people are 
marching about. You can't ban a particular march because you 
disagree with the message unless you deal with all marches. You 
can't have marches by the Republican Party but not by the 
Democratic Party.
    We should acknowledge that the purpose of the underlying 
amendment is to stifle political expression we find offensive. 
While I agree that we should all respect the flag, I don't 
think it's appropriate to use the criminal code to enforce our 
views on those who disagree with us.
    Some refer to the underlying resolution as the anti-flag 
burning amendment, and they speak about the necessity of this 
amendment to keep people from burning flags, but really, the 
only place that we ever see flags burn is in compliance with 
the Federal Code at flag ceremonies, disposing the flag, a worn 
out flag, the appropriate way to dispose of it is in fact to 
burn it.
    The amendment, underlying amendment without my amendment, 
is about expression and about prohibiting expression in 
violation of the spirit of the First Amendment. By using the 
word ``desecration'' we're giving Government officials the 
power to decide that one can burn a flag if he is saying 
something nice or respectful, but he is a criminal if he burns 
a flag while saying something insulting or offensive. This is 
absurd and in direct contravention of the whole purpose of the 
First Amendment.
    So to make this amendment consistent with the ideals of the 
First Amendment's provision involving freedom of expression, I 
am proposing that we just burn--we just ban all flag burning. 
My amendment has no content based restrictions. It makes the 
underlying amendment content neutral. All flag burning would be 
outlawed. The underlying resolution permits flag burning while 
you're burning the flag, but would criminalize flag burning if 
you're saying something bad. But if we really intend to bar 
flag burning, then let's bar all flag burning consistent with 
the ideals of the First Amendment.
    Mr. Chairman, I yield back the balance of my time.
    Chairman Sensenbrenner. I recognize myself in opposition to 
the amendment.
    This amendment is too narrowly drafted, and I can state 
that it's too narrowly drafted from a decision that the 
Wisconsin Supreme Court made following the precedent in the 
Johnson case. There they reversed the conviction of a person 
who admitted to defecating on the United States flag to make a 
political statement, and they held that this disgusting act was 
free speech, that it was protected by the First Amendment. I 
guess doing that on the flag is free speech and doing the same 
thing on the editorial page of the New York Times or the 
Washington Post is disorderly conduct. But what this amendment 
does is that it would allow these types of acts that continue 
to be constitutionally protected under the Johnson decision, 
and that is reason alone, since there is a State Supreme Court 
decision in at last one State, to reject the Scott amendment, 
and I would urge a no vote. Yield back the balance of my time.
    Mr. Chabot. Mr. Chairman?
    Chairman Sensenbrenner. The gentleman from Ohio, Mr. 
Chabot.
    Mr. Chabot. Move to strike the last word.
    Chairman Sensenbrenner. The gentleman's recognized for 5 
minutes.
    Mr. Chabot. Thank you, Mr. Chairman. I agree with the 
Chairman's point and would like to make the further point that 
I also believe it should be rejected because the word 
``burning'' would unduly limit the protection of the flag that 
this amendment is seeking to establish. The word 
``desecration'' was selected because of its broad nature in 
encompassing many actions against the flag. Such broad terms 
are commonly used in constitutional amendments. For example, 
``free exercise'' in the First Amendment, ``unreasonable search 
and seizures'' and ``probable cause'' in the Fourth Amendment, 
``due process'' and ``equal protection'' in the Fourteenth 
Amendment. Thus, it is essential that we continue to use broad 
terms in constitutional amendments such as the word 
``desecration,'' in order to give Congress discretion when it 
moves to an act implementing legislation. A debate and 
discussion as to what forms of desecration should be outlawed, 
such as ``burning'' will come at a later date in Congress. 
Therefore, this amendment should be rejected as unduly limiting 
the object and purpose of the Flag Protection Amendment, which 
is to protect the flag from any acts of physical defilement or 
defacement, or as is described in this, desecration.
    I yield back the balance of my time.
    Mr. Watt. Mr. Chairman?
    Chairman Sensenbrenner. The gentleman from North Carolina, 
Mr. Watt.
    Mr. Watt. Thank you, Mr. Chairman. I move to strike the 
last word.
    Chairman Sensenbrenner. The gentleman is recognized for 5 
minutes.
    Mr. Watt. Thank the Chairman. I think the comments of the 
Chairman and my good friend, Mr. Chabot, the Chairman of the 
Subcommittee, illustrate precisely why this amendment is 
necessary, and the statements of Mr. Scott from Virginia 
illustrate precisely why this amendment is necessary. If this 
is about banning conduct for speech expression, then the Court 
is going to hold this unconstitutional anyway, or whatever the 
Congress could pass in furtherance of this constitutional 
amendment would be held unconstitutional. If it's really about 
burning the flag as opposed to controlling what somebody is 
saying or thinking or expressing as they burn the flag, then 
Mr. Scott's amendment would be broad enough to serve that 
purpose.
    So I don't think anything either the Chairman of the 
Subcommittee or the Chairman of the full Committee said 
carries--expresses a real reason if we want this to be 
constitutional for voting against the amendment, and I would 
encourage my colleagues, if they would rather have a 
constitutional bill to support the amendment, if they would 
rather have a sound bite and be able to beat on their chests 
and tell people how patriotic they are, then vote against it 
and vote for the underlying bill.
    I yield to Mr. Scott.
    Mr. Scott. Thank you. I thank the gentleman for yielding.
    Mr. Chairman, I think it should not go without some comment 
when you talk about things that would be crimes, that would 
apparently somehow get some kind of protection if you're doing 
it with the flag. I mean if you steal somebody's flag and burn 
it, you are not protected from the criminal code involving 
theft and destruction of somebody else's property merely 
because it was a flag that you stole. I'm not sure exactly what 
the fact situation was, Mr. Chairman, on that defecating case, 
but I suspect that wherever you did it, if it were a crime to 
do it on the New York Times, I'm sure it would still be a crime 
to do it just because you had a flag somewhere around.
    I suppose, using that same logic, if you used a flag to 
beat somebody over the head and murder them, that you would not 
be protected from the murder statutes because you used a flag. 
These are crimes regardless of whether a flag is used or not.
    What this amendment will do is take the content out of it. 
It says that if you burn the flag, that would be a crime, not 
if you burn the flag and say something insulting to the 
sheriff, that would be a crime, but if you say something nice 
about the sheriff, it would not be a crime. That is an absurd 
distinction contrary to the ideals of the First Amendment 
provisions involving freedom of expression, and I would hope 
that we would be consistent with those ideals by taking the 
content out of the equation and making the act criminal if 
that's what we want to do, and not make the expression 
criminal. I yield back.
    Mr. Watt. I yield back, Mr. Chairman.
    Mr. Nadler. Mr. Chairman?
    Chairman Sensenbrenner. The gentleman from New York, Mr. 
Nadler.
    Mr. Nadler. Thank you, Mr. Chairman. I speak in support of 
this amendment. Mr. Chairman, if the flag needs protection at 
all, it is from Members of Congress who value the symbol more 
than the freedom the flag represents. Quite frankly, the crass 
political use of the flag to question the patriotism of those 
who value our fundamental freedoms is a far greater insult to 
those that died in the service of our Nation, than is the 
burning of the flag. It is the civic equivalent of taking the 
Lord's name in vain.
    People have rights in this country that supersede public 
opinion, even strongly held public opinion. 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 directly aimed 
at ideas. Current Federal law says that the preferred way to 
dispose of a tattered flag is to burn it, and that's fine. So 
it's fine to burn a flag if you stand there saying wonderful 
things about the flag and respectful things about the 
Administration, but if you burn the flag by saying the war in 
Iraq was terrible or we disagree with the Administration or the 
President is not a nice guy, that's a crime. And what is being 
made criminal is not actually the burning of the flag, but the 
desecration of the flag. Defining the desecration as burning 
it, a neutral act, which is praiseworthy under some 
circumstances, but it made criminal if associated with 
unpopular ideas. That's why the Supreme Court declared that 
these statutes were unconstitutional and that's why we should 
not amend the Constitution.
    Secondly, I'll give you another example. If someone 
produced a film, a movie, in which actors played Nazi soldiers, 
and as part of their portrayal of Nazi soldiers trampled upon 
the flag, I doubt that anyone would suggest that the police 
ought to march in and arrest the actors and the producers and 
the director of the film because no one thinks they mean the 
terrible things they are saying as actors in the film. But if 
they meant it, then they should be arrested for flag 
desecration. That's what this amendment is all about, directly 
criminalizing an act that otherwise is okay when associated 
with ideas we don't like, the essence of free speech.
    At the Subcommittee hearing, Mr. Chairman, I was proud to 
welcome as a witness an officer of the Port Authority Police. 
No New Yorker who lived through that day, the days after and 
the memorials we all attended, could never forget their service 
and how moving it was to see that flag. I am however getting 
very tired of that act of barbarism being used to justify a 
plethora of political causes. As the President has often 
remarked: The people who murdered 3,000 of my neighbors did so 
because they hated our free society. Yet to use that atrocity 
to justify a curtailment of our freedoms, as has been done in 
this debate, not today but on many occasions, strike me as a 
desecration of the memory of the people who died. Similarly, 
many people who marched against the war objected to the 
political use of their loved ones' deaths to justify the war. 
For example, Rita Lasar became angry when the attacks were used 
to justify the war. Her brother, Abe Zelmanowitz, died in the 
North Tower, refusing to leave his quadriplegic coworker. Adele 
Welty of Flushing, whose son, Timothy Welty, was a member of 
Rescue Squad 288 and died in the Trade Center, said: ``He would 
not have wanted innocent people killed in his name.'' She was 
later arrested for her dissent against the war.
    So people who claim to speak for the dead of September 11th 
or for our other honored dead should show a bit more modesty. I 
represent that community in Congress, and I can tell you they 
do not all hold the same views on this issue. In fact, there's 
probably more opposition to this proposed amendment in my 
district than almost anywhere else in the country. People have 
indeed died for the Nation and for the rights which this flag 
so proudly represents. We should not destroy the way of life 
and desecrate their memory by passing this amendment which 
would desecrate freedom.
    I would also point out that some of our foremost patriots 
who support this amendment, such as those sitting in the first 
row, are violating the law. Specifically look at that tie with 
the American flag on it. Section 8 of title IV of the United 
States Code says: The flag should never be used as a wearing 
apparel, bedding or drapery, et cetera, et cetera. No one is 
suggesting that this gentleman ought to be arrested, because if 
he were doing that and if he tore off his tie while criticizing 
the Administration or criticizing some policy, then under the 
amendment we're considering, he could be arrested. But sitting 
there supporting this amendment, wearing that tie that 
according to the statute desecrates the flag, he's doing 
nothing wrong, and I support his right to wear that tie, and if 
he considers it good, so be it. That's freedom. We should not 
strip him of this freedom which this amendment essentially 
would do.
    I yield back and I thank you, Mr. Chairman.
    Chairman Sensenbrenner. The question is on the amendment 
offered by the gentleman from Virginia, Mr. Scott. Those in 
favor will say aye.
    Opposed no.
    The noes appear to have it. The noes have it, and the 
amendment is not agreed to. Are there further amendments?
    Mr. Watt. Mr. Chairman.
    Chairman Sensenbrenner. The gentleman from North Carolina, 
Mr. Watt?
    Mr. Watt. I have an amendment at the desk.
    Chairman Sensenbrenner. The clerk will report the 
amendment.
    The Clerk. Amendment to H.J. Res. 4 offered by Mr. Watt.
    Mr. Watt. I ask unanimous consent the amendment be 
considered as read.
    The Clerk. On page 2----
    Chairman Sensenbrenner. Without objection, the amendment is 
considered as read, and the gentleman is recognized for 5 
minutes.
    [Mr. Watt's amendment follows:]
    
    
    Mr. Watt. Thank you, Mr. Chairman. I feel like this is kind 
of deja vu all over again because this is the same amendment 
that we have debated previously in the consideration of this 
bill, and it is consistent with Mr. Scott's and my effort to 
try to make what we are doing here fit within the confines of 
the existing Constitution.
    Mr. Chabot and those who support this amendment, go out of 
their way to say that they're not trying to do anything that 
violates the Constitution, that they are not trying to do 
anything that violates the First Amendment. Yet, if we are ever 
put to the test of having this proposed constitutional 
amendment and the First Amendment to the Constitution, I don't 
want there to be any doubt that the First Amendment is going to 
take precedence. It has been in the Constitution for years and 
years and years. We don't have any idea of what the Supreme 
Court might do with this proposed constitutional amendment. We 
don't have any idea what the Congress might do in furtherance 
of this proposed amendment. But we do know that the First 
Amendment to our Constitution has served our country well for 
years and years and years. And so this amendment would simply 
say that this proposed constitutional amendment that we are 
offering here must be construed to be consistent with the First 
Amendment to the Constitution, and if in fact it is flag 
desecration as opposed to the content of somebody's speech or 
action that we are trying to outlaw, then this should really 
not cause anybody any problem. So I would encourage my 
colleagues to support this amendment and I yield back the 
balance of my time.
    Chairman Sensenbrenner. Gentleman from Ohio, Mr. Chabot.
    Mr. Chabot. Thank you. Move to strike the last word.
    Chairman Sensenbrenner. The gentleman's recognized for 5 
minutes.
    Mr. Chabot. Thank you, Mr. Chairman. This amendment should 
also be rejected because the Supreme Court would declare as 
unconstitutional, per se, any legislation enacted under this 
constitutionally proposed language that effectively prohibits 
the physical desecration of the flag as such legislation would 
be inconsistent with the First Amendment pursuant to the 
Johnson case and the Eichman case, through its use of limiting 
language and as a result of its position as the first phrase in 
the amendment, courts would construe Mr. Watt's amendment as 
controlling all other aspects of the constitutional amendment 
itself. Thus, Mr. Watt's amendment would require the Court to 
apply the reasoning and the holding of the Johnson and Eichman 
cases, which were decided based upon the first article of the 
amendment of the Constitution, thus ensuring that all 
legislation enacted pursuant to the amendment version of H.J. 
Res. 4 would be struck down as unconstitutional in violation of 
the First Amendment.
    So if this amendment were passed, in essence, any 
legislation that we would pass subsequent to this would be 
struck down. Just in response to a couple other things that my 
good friends on the other side mentioned, is the argument that 
an actor portraying the burning of a flag on stage in a play or 
in a movie or something like that could be arrested is like 
saying that we could arrest actors for homicide when they are 
portraying a murder on screen. It just does not happen, and it 
would not happen.
    Mr. Nadler. Will the gentleman yield for a question?
    Mr. Chabot. Let me finish, and then I would be happy to 
yield. There are other, I think, examples. The arguments that 
are made that we wouldn't be able to differentiate between a 
veteran's--which many of us have attended on Memorial Day for 
example--when a flag is burned in a respectful manner for a 
particular purpose by statute, that we wouldn't be able to 
differentiate between somebody desecrating the flag by burning 
or defecating on it, as the Chairman's example was, just 
ultimately says that the American people, that the courts, the 
prosecutors, had no common sense, that there's no common sense 
in the law. You know, we can differentiate between many 
different things that take place. When a doctor operates on a 
person and puts a scalpel in somebody, he's not going to be 
prosecuted for doing that, but if somebody takes a knife and 
puts it in another human being, he's going to be prosecuted. 
There's common sense in the law. There are courts that 
ultimately protect the people and prosecutors hopefully also 
have common sense, and if they don't there are defense lawyers 
who will take their cases. I mean it happens all the time in 
this country. When you take a person to the grocery store and a 
movie, that's very different than somebody who, against their 
will, kidnaps a person, but in essence you're conveying the 
person to another location, and the difference is whether it's 
with their consent or not. There are many different things 
which are similar, which are used--and we've gone through this, 
as the gentlemen have also mentioned, a number of times prior 
to this. Hopefully this time I hope that we get it passed into 
the Constitution and protect the flag, as it was protected and 
had been for over 200 years, as has been stated. This has only 
been the case since 1989, 1990. Prior to that, as I mentioned 
before, Thomas Jefferson, James Madison, all these folks took 
it for granted that the flag was going to be protected. It's 
only recently, you know. And we look like because it's been 
this for a decade or so now, we sort of think, well, this is 
what we have to put up with. We don't have to put up with it. 
And that's why these veterans are here, and that's why veterans 
groups in particular feel so strongly about this, because those 
are the men and women who put their lives on the line for us, 
and these arguments that I hear again, and they're very 
craftily made and in a very articulate manner, but they just 
don't hold water if one really examines them, and I'll yield 
the balance of my time.
    Mr. Nadler. Thank you. I think you misunderstood the 
argument. I was not worried about the----
    Chairman Sensenbrenner. The time belongs to the gentleman 
from Ohio.
    Mr. Nadler. He yielded to me.
    Mr. Chabot. I did yield.
    Mr. Nadler. I did not argue that we would be in danger of 
arresting the actors or that it would be hard to figure out how 
not to do that. My argument was that we would not think of 
arresting the actors because they obviously didn't mean the 
terrible things that they were saying as they trampled the 
flag. If they meant the terrible things they were saying, then 
we would arrest them and that's the point of this amendment.
    Ms. Lofgren. Mr. Chairman
    Mr. Chabot. Reclaiming my time. Can we make this the 
differentiation--it takes common sense. One has to assume that 
there's some common sense in the law and there are protections 
in the law. That's why we have courts who can ultimately make a 
determination.
    Chairman Sensenbrenner. The gentleman's time has expired. 
For what purpose does the gentlewoman from California, Ms. 
Lofgren, seek recognition?
    Ms. Lofgren. Strike the last word.
    Chairman Sensenbrenner. Gentlewoman's recognized for 5 
minutes.
    Ms. Lofgren. Mr. Chairman, I realize that on this subject 
passions can be very high, but it seems to me that when our 
brave Americans go off to fight in a war, they look to the flag 
as a symbol of the country, but the symbol isn't the same as 
the essence, and I'd like to reference just one brave veteran 
and that is my father-in-law, who fought in the South Pacific 
in World War II. He made captain in the field. It was so 
horrible that he really doesn't like to discuss the details of 
it, and his generation has been called the greatest generation. 
They saved the world for freedom from the Nazis and other 
forces, and he has urged me to support the First Amendment and 
not to support this constitutional amendment, because he felt 
that when he was over there in World War II, he was fighting 
for the First Amendment, for freedom, and I think that we ought 
to take that advice to heart. I think the amendment offered by 
the gentleman from North Carolina really is a compromise that 
really does everything for all of us, and I would like to yield 
to the gentleman to further discuss this amendment.
    Mr. Watt. I thank the gentlelady for yielding. I just want 
to take the opportunity to respond to a couple things that Mr. 
Chabot said. If you look at the proposed amendment that is--
that's the underlying bill, it says that the constitutional 
amendment will be, quote, ``The Congress shall have power to 
prohibit the physical desecration of the flag of the United 
States.''
    It seems to me that whatever Congress does in furtherance 
of this language is going to have to be very well thought out 
and well crafted and is going to have to be subject to the 
First Amendment anyway. I don't see how Congress could pass a 
statute prohibiting the desecration of the flag, the burning of 
the flag, doing anything with the flag that could be 
inconsistent with the First Amendment and have that legislative 
act that Congress takes be held constitutional.
    Now, what you would like to do is pass this amendment and 
tell people that you have done something. You haven't done a 
thing but empower the Congress to pass a statute that has to be 
consistent with the First Amendment, and this notion that you 
are somehow getting around these decisions that the Supreme 
Court has entered, related to the Constitution by passing this, 
is just folly. So all my amendment does really is reaffirm 
exactly what the law is going to be regardless of whether you 
pass my amendment or not. And all I'm doing really is sending 
up a red flare over Congress that says whatever you do, 
whatever statute we pass in furtherance of this constitutional 
amendment, you better be darn sure that it is carefully done, 
and done in a way that is consistent with the First Amendment, 
and that's all this proposed amendment to the amendment would 
do. And I can't imagine why anybody would have problems with 
that.
    You're going to be stuck with the First Amendment anyway. I 
know there are a lot of people here who hate to hear that, but 
you're going to be stuck with the First Amendment. It is not 
going away. So let's just reaffirm our commitment to the First 
Amendment, give Congress the right to ban desecration, if we 
can figure out a way to do it that's not inconsistent with the 
First Amendment, and at some point come back here and let 
Congress try to face up to that challenge. I yield back.
    Mr. Hostettler. Mr. Chairman?
    Chairman Sensenbrenner. The gentlewoman's time has expired. 
The gentleman from Indiana, Mr. Hostettler.
    Mr. Hostettler. Move to strike the last word.
    Chairman Sensenbrenner. The gentleman is recognized for 5 
minutes.
    Mr. Hostettler. Mr. Chairman, I rise in opposition to the 
amendment, and just stating that the amendment is not 
necessary. As Andrew Jackson stated in his veto message of the 
reauthorization of the national bank, that the President, the 
Executive, is not compelled to construe the Constitution in the 
same manner as the Court is; neither is the Legislative Branch 
compelled to do likewise. There is nothing sacred in the 
Constitution that grants the Federal courts any greater ability 
to construe the Constitution, especially with regard to 
amending the Constitution, as the legislature, and in fact, we 
in this body, are fully capable of construing the meaning of 
the First Amendment according to what we believe the 
Constitution and the First Amendment specifically means. That's 
what we are doing here today.
    And so what the gentleman seeks to do is I think, as the 
Chairman of the Subcommittee noted, is just to boot this 
obligation to construe the Constitution and the First Amendment 
back to the Supreme Court. I don't want to do that. I don't 
think the Supreme Court makes good decisions in these areas. I 
think they made several bad decisions in the past and----
    Mr. Watt. Would the gentleman yield?
    Mr. Hostettler. Just one moment. I'll yield in just a 
moment.
    Likewise, the gentleman from North Carolina suggests that 
if we legislate according to the authority given in this 
amendment with regard to the meaning of ``desecration'' that 
the Court will go back to the previous amendment and strike 
down the statute which we have passed and has been ultimately 
enacted as a result of the Court's believing there is a 
difference or is an inconsistency with regard to the First 
Amendment. If that logic would hold, then the Court would have 
struck down virtually every civil rights act that had been put 
in place as a result of the Fourteenth Amendment, and the 
legislative clause in section 5 of the Fourteenth Amendment due 
to the Tenth Amendment to the Constitution. That's not going to 
happen. Just as the Fourteenth Amendment gave the Federal 
legislature the authority in section 5 to legislate on issues 
regarding the States and rights of citizens of States, this 
amendment will give the Congress the authority to legislate 
with regard to desecration of the flag. I would hope that the 
Court would not be as inconsistent with this new amendment, it 
would not be as inconsistent with this new amendment just as it 
has not been inconsistent with the application of the 
Fourteenth Amendment and Congress's utilization of section 5 of 
the Fourteenth Amendment to grant civil rights to American 
citizens.
    I'd be happy to yield to the gentleman from North Carolina.
    Mr. Watt. I thank the gentleman for yielding. I'm not going 
to get into a debate about the Fourteenth Amendment. This is 
about the First Amendment, and I honor all of the amendments to 
the Constitution. But let me just walk the gentleman through 
this. This proposed bill that we are dealing with says that 
Congress shall have power to prohibit the physical desecration 
of the flag of the United States. Does the gentlemen believe 
that this amendment would itself prohibit anything without 
Congress acting?
    Mr. Hostettler. Reclaiming my times, just as the framers of 
the Fourteenth Amendment believe that they had to add the 
section 5 of the Fourteenth Amendment to it, this will grant 
Congress the authority to legislate in this area.
    Mr. Watt. So the gentleman agrees that this doesn't 
prohibit the physical desecration that the Congress must do 
something pursuant to this for it to be prohibited; is that 
right?
    Mr. Hostettler. Just as subsequent civil rights act, after 
the Fourteenth Amendment were passed----
    Mr. Watt. I just want to----
    Mr. Chabot. Will the gentleman yield?
    Mr. Watt.--establish that point. Now, the next question I 
have----
    Mr. Hostettler. Reclaiming my time, I'll yield to the 
gentleman.
    Mr. Chabot. I will be quick because your time's ready to 
run out. Nobody is making the allegation that this amendment 
itself takes care of the problem. What it does is it gives 
Congress the power to prohibit the physical desecration of the 
flag.
    Mr. Watt. Would the gentleman yield?
    Mr. Chabot. That's what this does and nobody's arguing to 
the contrary.
    Mr. Watt. Would the gentleman yield?
    Mr. Chabot. We could have done that, but we didn't. And so 
a subsequent Congress or perhaps this Congress, could then pass 
a law that it could craft to make sure that the First Amendment 
and every other amendment is taken care of. So clearly the 
Court will interpret this amendment in light of the First 
Amendment, but this amendment would remove the Court's 
discretion on the matter and require the Court to apply the 
Johnson and Eichman holdings, and that's why we oppose this 
particular gentleman's amendment.
    Mr. Watt. Would the gentleman yield?
    Mr. Hostettler. Will the gentleman answer my question 
that----
    Chairman Sensenbrenner. The gentleman's time has expired.
    Mr. Watt. I ask unanimous consent the gentleman be given 
one additional minute, and I ask the gentleman to yield.
    Chairman Sensenbrenner. Without objection.
    Mr. Hostettler. I'd like to ask the gentleman a question. I 
appreciate that. Does the gentleman believe that according to 
the power to amend the Constitution and the oath that you took 
to support the Constitution, does the gentleman not believe 
that the Constitution grants the Congress the authority to 
construe the Constitution according to the will of the 
Congress?
    Mr. Watt. I absolutely believe that Congress has the 
initial authority to do that, but the Supreme Court has the 
ultimate authority to decide whether what we do is 
constitutional. I do believe that, yes.
    I've at least answered the question. Would you answer a 
question now?
    Mr. Hostettler. Yes.
    Mr. Watt. And Mr. Chabot, if he wants to answer it too. 
Once the Congress does something pursuant to this amendment, 
would you gentlemen agree that it must be consistent with the 
First Amendment?
    Chairman Sensenbrenner. The gentleman's time has once again 
expired.
    Mr. Watt. I ask unanimous consent for two additional 
minutes so that maybe they'll answer the question that I'm 
asking.
    Chairman Sensenbrenner. Without objection.
    Mr. Watt. I'm asking you whether once Congress does 
something pursuant to this amendment, you would have to do it 
consistent with the provisions of the First Amendment?
    Mr. Hostettler. Given that it's my time, yes, and that's 
why I'm going to vote for the statute to stop the physical 
desecration of the flag, because I have that capability to 
construe the First Amendment just as the Supreme Court does, as 
the gentleman just suggested in his response to my question.
    Mr. Watt. Would the gentleman yield further if you would. 
And does the gentleman think that his determination of what 
desecration means can be inconsistent with what the Supreme 
Court says it means, and that he will win ultimately?
    Mr. Hostettler. Well, as the gentleman knows, the Supreme 
Court is more than capable of opining on anything that they so 
desire.
    Mr. Watt. Opining? What are you talking about? The Supreme 
Court is the ultimate opiner in this process. What do you mean 
is capable of opining?
    Mr. Hostettler. Well, that--I agree with that. I agree with 
that.
    Mr. Watt. There are many times that I disagree with what 
the Supreme Court opines, but you don't argue with the fact 
that they are the ultimate opiner, I assume?
    Mr. Hostettler. Well, no, not the ultimate opiner, exactly.
    Chairman Sensenbrenner. In my opinion, the time of the 
gentleman has once again expired.
    For what purpose does the gentleman from California seek 
recognition?
    Mr. Berman. I move to strike the last word, Mr. Chairman.
    Chairman Sensenbrenner. The gentleman is recognized for 5 
minutes.
    Mr. Berman. I'm wondering if on my time the gentleman from 
Indiana could indicate--has he heard of this case, Marbury v. 
Madison? Have you heard of the case, Marbury v. Madison?
    Mr. Hostettler. Yes, I have.
    Mr. Berman. And do you accept that decision as affecting 
the question of who is chief opiner, about the 
constitutionality of----
    Mr. Hostettler. Chief opiner, yes, I do.
    Mr. Berman. You accept that?
    Mr. Hostettler. I do, I do. Will the gentleman yield?
    Mr. Berman. Yes.
    Mr. Hostettler. Has the gentleman read Marbury v. Madison?
    Mr. Berman. Yes.
    Mr. Hostettler. And what was the practical result of John 
Marshall's suggestion to Jefferson that he seat Mr. Marbury? 
Did Mr. Jefferson--in other words, did Mr. Jefferson seat Mr. 
Marbury?
    Mr. Berman. Whether he did? You mean afterwards?
    Mr. Hostettler. Yes.
    Mr. Berman. Tell me why that's relevant.
    Mr. Hostettler. Well, you're asking me if they're the 
opiner. My question to you is, is did what the Supreme Court 
opined come to pass?
    Mr. Berman. I take your point. Therefore----
    Mr. Hostettler. The question----
    Mr. Berman. I take your point. Given your view of this, why 
do you need this constitutional amendment? You, as a Member of 
Congress, and apparently a majority of the Congress, presumably 
at one point in the recent history and now, think that physical 
desecration of the flag, prohibiting that is not an 
infringement on First Amendment rights. So why do you need a 
constitutional amendment to pass a law that prohibits physical 
desecration of the flag?
    Mr. Hostettler. Will the gentleman yield?
    Mr. Berman. Yes.
    Mr. Hostettler. I personally believe that the flag is the 
very most unique symbol of the United States of America, and I 
believe that it requires the respect due to it----
    Mr. Berman. So what--I appreciate that. Why don't you 
just--why do you need to amend the Constitution? You don't 
think physical desecration of the flag violates the First 
Amendment? You accept there is a First Amendment. You don't 
think physical desecration of the flag violates the First 
Amendment? Why do you need a constitutional amendment?
    Mr. Hostettler. Do you want me to repeat what I just said? 
Because I believe that the flag is a very unique instrument, 
representing the United States of America.
    Mr. Berman. So why don't you introduce a bill to prohibit 
the physical desecration of the flag because it is a unique 
symbol of the United States.
    Mr. Hostettler. Will the gentleman yield?
    Mr. Berman. Yes.
    Mr. Hostettler. Because as being a unique symbol of the 
United States, I believe it deserves attention of the United 
States Constitution.
    Mr. Berman. All right, I understand.
    Mr. Chabot. Would the gentleman yield for a moment? The 
gentleman yield?
    Mr. Berman. I will be happy to yield.
    Mr. Chabot. I thank the gentleman for yielding. Just 
getting back to the ultimate opiner, I think the ultimate 
opiner is really the people of this country, and when the 
Supreme Court gets it wrong, and once in a while they do, the 
people of this country, through their elected representatives, 
and that's us, can amend the Constitution, and then that's the 
document that the Supreme Court will review and will act 
through, and a lot of us think the Supreme Court did get it 
wrong in this one, and that's why we're attempting to do the 
only thing that we can do, which is to amend the Constitution. 
If we could do it through a statute, we'd do it. We tried that. 
They threw that out. So the only thing----
    Mr. Berman. Reclaiming my time, that I understand, and 
that's why you want a constitutional amendment. My question 
then to the author of this amendment, is, I'm not sure what you 
mean when you--when you offered this amendment and say that 
this amendment, plus any law adopted pursuant to it, could be 
struck down as violating the First Amendment, I don't 
understand that argument, and I was wondering if you could 
explain that. Because it seems to me this amendment is intended 
to limit and narrow the First Amendment of the Constitution, 
and your amendment seems to be the same as just defeating the 
underlying constitutional amendment, and why isn't the right 
position for one who agrees with your position to simply vote 
no on this matter, on the underlying constitutional amendment? 
I thought I heard you say that even if Congress passes this 
constitutional amendment and it's ratified by the States, and 
Congress passes a law prohibiting physical desecration of the 
flag, to the extent that that law infringes on First Amendment 
rights, that law will be rendered unconstitutional by the 
Supreme Court.
    To me, that doesn't seem to be the case. It sounds to me 
like this amendment has a very specific limitation.
    Chairman Sensenbrenner. The gentleman's time has expired.
    Mr. Berman. I'd ask unanimous consent for one additional 
minute.
    Chairman Sensenbrenner. Without objection.
    Mr. Berman. To explain to me why you're offering--what your 
point is with this amendment.
    Mr. Watt. My point is that whenever Congress gets around to 
doing whatever it must do to prohibit the desecration of the 
flag, I want Congress to be absolutely cognizant that it must 
do that carefully and consistently with the First Amendment.
    Mr. Berman. And to reclaim my time, I don't understand why 
you say that, because it seems to me what this amendment is 
about is to tell the Congress you don't have to care about the 
First Amendment when you're legislating on the physical 
desecration of the flag because this amendment narrows, I think 
inappropriate and wrongly, the breadth of the First Amendment.
    Mr. Nadler. Will Mr. Berman yield?
    Mr. Berman. I'm happy to yield.
    Mr. Nadler. Would the gentleman yield for a second? I think 
the point of this amendment----
    Chairman Sensenbrenner. The gentleman's time has once again 
expired.
    Mr. Nadler. Mr. Chairman?
    Chairman Sensenbrenner. For what purpose does the gentleman 
from New York seek recognition?
    Mr. Nadler. To strike the last word.
    Chairman Sensenbrenner. The gentleman is recognized for 5 
minutes.
    Mr. Nadler. I think the purpose of this amendment is 
precisely to illustrate the point the gentleman from California 
makes. Obviously this amendment infringes on the First 
Amendment. Obviously, if passed, it would supersede the First 
Amendment to the extent to which it conflicted with it, and the 
amendment offered by the gentleman from North Carolina is 
simply intended to point that out, so that the nonsense about 
this amendment not being a restriction of freedom of speech 
rights is pointed out for the nonsense which it is.
    Mr. Chairman, I want to read two letters, one from General 
Colin Powell. It was written 3 years ago, 4 years ago to 
Senator Leahy, in which he says: ``Dear Senator Leahy, I love 
our flag, our Constitution and our country with a love that has 
no bounds. I defended all three for 35 years as a soldier, and 
was willing to give my life in their defense. Americans revere 
their flag as a symbol of the Nation. Indeed it is because of 
that reverence that the amendment is under consideration. We 
are rightfully outraged when anyone attacks or desecrates our 
flag. Few Americans do such things, and when they do, they are 
subject to the rightful condemnation of their fellow citizens. 
They may be destroying a piece of cloth, but they do no damage 
to our system of freedom which tolerates such desecration. If 
they're 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 the State legislatures to 
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 ensure that freedom of speech and 
expression applies not just to that with which we agree or 
disagree, but also to 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. Finally, I shudder to think of the legal 
morass we will create trying to implement the body of law that 
will emerge from such an amendment. If I were a Member of 
Congress I would not vote for the proposed amendment. I would 
fully understand and respect the views of those who would. For 
or against we all love our flag with equal devotion. Sincerely, 
Colin Powell. P.S. The attached 1989 article by a Vietnam POW 
gave me further inspiration for my position.''
    And I will now read an excerpt from that article in which I 
think it's Captain--Major James Warner writes as follows. ``In 
March 1973, when we were released from a prisoner of war camp 
in North Vietnam, we were flown to Clark Air Base in the 
Philippines. As I stepped out of the aircraft, I looked up and 
saw the flag. I caught my breath then as tears filled my eyes. 
I saluted it. I never loved my country more than at that 
moment, although I have received the Silver Star Medal and two 
Purple Hearts, they were nothing compared with the gratitude I 
felt then for having been allowed to serve the cause of 
freedom. Because the mere sight of the flag meant so much to me 
when I saw it for the first time after 5\1/2\ years, it hurts 
me to see other Americans willfully desecrate it. But I have 
been in a communist prison where I looked into the pit of hell. 
I cannot compromise on freedom. It hurts to see the flag 
burned, but I part company with those who want to punish the 
flag burners. Let me explain myself.''
    And he goes on to talk about his time in a communist POW 
camp, in which he said, ``I did not appreciate this power that 
is the power of ideas, the teaching of these communist captors 
before I was a prisoner of war. I remember one interrogation 
where I was shown a photograph of some Americans protesting the 
war by burning a flag. There, the officer said, people in your 
country protest against your cause. That proves you are wrong. 
No, I said. That proves that I am right. In my country we are 
not afraid of freedom even if it means that people disagree 
with us. The officer was on his feet in an instant, his face 
purple with rage. He smashed his fist onto the table and 
screamed at me to shut up. While he was ranting I was 
astonished to see pain compounded by fear in his eyes. I have 
never forgotten that look, nor have I forgotten the 
satisfaction I felt at using his tool, the picture of the 
burning flag, against him.''
    And Irwin Bevin of the British Labor Party was once asked 
by Nikita Kruschev how the British definition of democracy 
differed from the Soviet view. Bevin responded forcefully that 
if Kruschev really wanted to know the difference, he should 
read the funeral oration of Pericles. In that speech Pericles 
contrasts the Democratic Athens with totalitarian Sparta. 
Unlike the Spartans, he said the Athenians did not fear 
freedom. Rather they viewed freedom as the very source of their 
strength. As it was for Athens, so it is for America. Our 
freedom is not to be feared, for our freedom is our strength. 
We don't need to amend the Constitution in order to punish 
those who burn our flag. They burn the flag because they hate 
America and they are afraid of freedom. What better way to hurt 
them than with the subversive idea of freedom? Spread freedom. 
The flag in Dallas was burned to protest the nomination of 
Ronald Reagan, and he told us how to spread the idea of freedom 
when he said that we should turn America into a city shining on 
a hill, a light to all nations. Don't be afraid of freedom is 
the best weapon we have.
    I think this letter from Colin Powell, which I ask 
unanimous consent to insert in the record----
    Chairman Sensenbrenner. Without objection.
    [Secretary Powell's letter follows:]

    
    
    Mr. Nadler. And this article by Major James Warner, which I 
also ask unanimous consent to----
    Chairman Sensenbrenner. Without objection, and the 
gentleman's time has expired.
    [The Washington Post article follows:]

    
    
    Mr. Nadler. 30 additional seconds, please, Mr. Chairman?
    Chairman Sensenbrenner. Without objection.
    Mr. Nadler. Thank you. Really explain probably better than 
most of us at this table could, the fundamental objection to 
this amendment. This amendment is intended to narrow freedom of 
expression because of the expression of ideas which we don't 
agree with, and therefore, this amendment ought to be rejected.
    Thank you and I yield back.
    Chairman Sensenbrenner. The gentleman's time has once again 
expired.
    The question is on the----
    Mr. Jenkins. Mr. Chairman?
    Chairman Sensenbrenner. For what purpose does the gentleman 
from Tennessee, Mr. Jenkins, seek----
    Mr. Jenkins. To strike the last word.
    Chairman Sensenbrenner. The gentleman's recognized for 5 
minutes.
    Mr. Jenkins. Mr. Chairman, I would like to yield to the 
gentleman from Ohio, the Chairman of the Subcommittee, who has 
additional letters that need to be read into the record.
    Mr. Chabot. I thank the gentleman for yielding.
    I have great respect for Secretary Powell, as I think most 
of the people in this room probably do. The fact is, 
approximately 80 percent of the American people, the 
overwhelming number of veterans in this country, support this 
particular, the flag amendment, and I'd like to take a moment 
to read--and I don't want to have dueling letters here--but I 
have a letter from General Schwartzkopf.
    ``With the recent introduction of the Flag Protection 
constitutional amendment, which I understand may soon some up, 
I'm writing to urge your support for this important measure. I 
am aware and respectful of the difficulty of this decision. My 
purpose in writing is to share with you my views and reasons 
for supporting the Flag Amendment in hopes that you will factor 
them into your deliberations on the matter. I regard legal 
protections for our flag as an absolute necessity and a matter 
of critical importance to our Nation. The American flag, far 
from a mere symbol or a piece of cloth, is an embodiment of our 
hopes, freedoms and unity. The flag is our national identify. I 
am honored to have commanded our troops in the Persian Gulf 
War, and humbled by the bravery, sacrifice and love of country 
so many great Americans exhibited in that conflict. These men 
and women fought and died for the freedoms contained in the 
Constitution and the Bill of Rights and for the flag that 
represents these freedoms. Their service and valor are worthy 
or our eternal respect. Most of these great heroes share my 
view that there is no threat to any right or freedom in 
protecting the flag for which they fought. Perhaps as much as 
any American, they embrace the right to free speech. Indeed, 
they risk death to protect it. I do, however, see a very real 
threat in the defilement of our flag. We are a diverse people, 
living in a complicated, fragmented society. I believe we are 
imperiled by a growing cynicism toward certain traditions that 
bind us, particularly service to our Nation. The flag remains 
the single preeminent connection among all Americans. It 
represents our basic commitment to each other and to our 
country. Legally sanctioned flag desecration can only serve to 
further undermine this national unity and identity that must be 
preserved. I am proud to lend my voice to those of a vast 
majority of Americans who support returning legal protections 
for the flag. This is an effort inspired by our Nation's 
history and our common traditions and understanding under 
which, until a very recent and controversial Supreme Court 
decision, the American flag was afforded legal protection from 
acts of desecration. The Flag Protection constitutional 
amendment is the only means of returning to the people the 
right to protect their flag. H. Norman Schwartzkopf, General, 
U.S. Army Retired.''
    I yield back. Thank the gentleman for yielding.
    Ms. Jackson Lee. Mr. Chairman?
    Chairman Sensenbrenner. The gentlewoman from Texas, Ms. 
Jackson Lee?
    Ms. Jackson Lee. Mr. Speaker, I ask to strike the last 
word.
    Chairman Sensenbrenner. The gentlewoman is recognized for 5 
minutes.
    Ms. Jackson Lee. Thank you very much, Mr. Speaker.
    Thank you, Mr. Watt. I put Mr. Sensenbrenner in an 
uplifting position, but I know he prefers to be called 
``Chairman.''
    In any event, I do want to put this in the context of where 
we are today. I'm not sure whether we are discussing this 
legislation inasmuch as a couple of days from now we will have 
the opportunity to pay tribute to the fine men and women who 
live but, in particular, those who are willing to give the 
ultimate sacrifice on behalf of this Nation. And there is no 
greater honor and respect that can be given than to acknowledge 
that freedom is not free, and that every day that we're allowed 
to debate in the manner that we're debating here in this room 
and on the floor of the House, we can be grateful not only for 
those who provide protection today but for the thoughtfulness 
and the depth of understanding of what freedom and democracy 
means that seem to be evidenced by the Founding Fathers who 
designed the Constitution and the Bill of Rights.
    The Bill of Rights has in it the First Amendment, which 
allows the freedom of expression, speech, freedom of 
association, and freedom of religion. We have clearly been 
aided by the fact that we do not have an established religion 
in this Nation, and so everyone is allowed to go to their 
respective houses of worship, worship on any day, and utilize 
their religion for defense of many actions.
    Freedom of movement allows us to move about this country. 
In spite of the threats of terrorism and recent legislation 
this Nation is unique in its ability to move about, the freedom 
of which its people have access to.
    And I think this amendment that Mr. Watt has offered is an 
amendment that is precise in its language, if I am reading it 
correctly: that we add to this legislation that whatever we do 
not be inconsistent with the First Amendment.
    And what is the First Amendment? I don't believe we should 
use the freedom that we have to threaten others who are using 
the freedom that they have. I don't believe that one's sense of 
handling of the flag of the United States because someone 
desires to express their opposition by handling the flag is a 
reflection on my respect and admiration for the flag and my 
right to worship it or love it or nurture it or respect it.
    But I do believe that if we pass this legislation, though I 
know that this has been moving through the Congress for a very 
long time, or it seems that we vote on this every single year, 
I do believe that despite the intensity of emotions that are 
expressed here even in this room, that we're really not 
capturing what this Nation is about.
    I would imagine someone would say someone's disrespect--or 
someone's freedom is someone else's disrespect, and I disagree 
with it. Freedom is within your heart, your understanding, and 
the Constitution and the Bill of Rights. And the Bill of Rights 
makes it very clear. We're not allowed to say ``Fire'' or we 
can challenge the idea of saying ``Fire'' in a crowded stadium 
or crowded theater, but I see that there is no seemingly basis 
in the Constitution to prevent someone from expressing their 
viewpoint, whether it is to reject the Constitution by some 
action or reject the flag of the United States by some action.
    We do ourselves a disservice if we take the Constitution 
today and burn it, by suggesting that we cannot express our 
viewpoints, and that you will be diminished, your service will 
be diminished because someone else does something to the flag 
of the United States.
    My respect for it will be no less than it is today. I have 
never burned a flag, never desired to do so, never desecrated 
it----
    Chairman Sensenbrenner. The gentlewoman's time has expired.
    Ms. Jackson Lee.--but I understand the necessity of not 
having this legislation and support this amendment. And I would 
ask my colleagues to support the amendment and respect the 
Constitution.
    I yield back.
    Chairman Sensenbrenner. The gentleman from Virginia, Mr. 
Scott?
    Mr. Scott. Thank you, Mr. Chairman. I move to strike the 
last word.
    Chairman Sensenbrenner. The gentleman is recognized for 5 
minutes.
    Mr. Scott. Mr. Chairman, I think we need to put this debate 
in a little context, and I would advise my friends in the first 
row to keep a good look as we discuss this on the budget as it 
pertains to veterans' benefits and to employee rights in the 
Department of Transportation as they're being sabotaged. 
There's a lot more going on in this Congress than just this 
bill.
    Mr. Chairman, this amendment points to the inconsistency 
with the idea of the First Amendment, time, place, and manner. 
Recent reports, news reports in the last week or so, reflect 
that the President had appeared at a public event, and someone 
was holding up a sign critical of the President. Others in the 
same area were holding up signs consistent with the President, 
supportive of the President. And this protester was told to 
take his sign down if he expected to stay. He kept his 
insulting sign up, and he was arrested.
    Now, I believe that is inconsistent with the ideals of the 
First Amendment, and we will just have to see how that 
prosecution goes. But the fact of the matter is, Mr. Chairman, 
this amendment will have to--this amendment will have to be 
dealt with one way or another. Either the underlying 
constitutional amendment will override the First Amendment or 
it won't. This at least answers the question that it will not 
override the First Amendment to the Constitution. My view is 
that whatever you do, as the gentleman from North Carolina has 
said, has got to be consistent with the rest of the 
Constitution. But that's the question.
    Now, if it's not consistent--if it's overrides the First 
Amendment, what else does it override? Does it say--does it 
override the First Amendment in terms of speech? Well, if this 
amendment is not adopted, then maybe it does. What about 
religion? If you pass a statute saying that you could establish 
a prayer for the flag, that would be inconsistent with the 
other part of the First Amendment. Will that be overridden? How 
about some people can burn a flag and some cannot in violation 
of the 14th, the equal protection clauses? Will that be 
overridden by this? Or will the rest of the Constitution be 
there as it is?
    Anything that you do under this is either consistent with 
the rest of the Constitution or you're trumping the rest of the 
Constitution. At least we ought to be honest and answer that 
question.
    I would suggest if you do not agree with this as it's 
written, then offer a second-degree amendment that says whether 
or not it's inconsistent with the First Amendment to the 
Constitution, whatever you do under this provision will be 
okay. At least we'd know what the rules are, and as has been 
pointed out, it will be part of the Constitution, and you're 
home free.
    But before we pass this amendment, let's at least let the 
people of the United States know what we pass. This says that 
you can't do anything under this proposed constitutional 
amendment that is not consistent with the Bill of Rights. I 
would hope that would be the view of the Committee, and I'd, 
therefore, hope that we would pass the amendment.
    I yield back.
    Chairman Sensenbrenner. The Chair would bring to the 
attention of the Members House rule XVII, clause 7, which 
applies to the Committee. It says, ``During a session of the 
House, it shall not be in order for a Member, delegate, or 
resident commissioner to introduce to or bring to the attention 
of the House an occupant of the galleries of the House.'' So 
references to people in the audience are in contravention of 
that rule and should be avoided.
    For what purpose does the gentleman from Indiana seek 
recognition?
    Mr. Pence. Move to strike the last word.
    Chairman Sensenbrenner. The gentleman is recognized for 5 
minutes.
    Mr. Pence. Thank you, Mr. Chairman.
    I would respectfully oppose the gentleman from North 
Carolina's amendment, and I do think, as my friend just said, 
it's important to put a little bit of perspective on this 
debate.
    It seems to me--and I'm just a small-town boy from southern 
Indiana, Mr. Chairman, but it does seem to me that this issue 
really isn't about the niceties and the vagaries of what the 
First Amendment does and does not apply to. In fact, the First 
Amendment does not even contain a reference to time, place, and 
manner. This is really about the very form and fabric of this 
Government.
    There are only three different times--types of government 
that men have conceived of throughout recorded history, Mr. 
Chairman: dictatorship, oligarchy, and democracy. This Nation 
was founded on the principles of representative democracy. We 
all know what dictatorship is. Oligarchy is when a very small 
group of people make decisions that they then impose on the 
populace.
    And I would offer to you today, with all due respect to my 
colleagues who want to talk about their deep concern for people 
having the ability to burn colored fabric, this debate today 
and this constitutional amendment goes to the very fabric of 
the form of government that we will enjoy in this country in 
the next century.
    Nineteen and eighty-nine, the United States Supreme Court, 
lost in the weeds of creative writing, decided to strike down 
the statutes that made flag desecration and burning in 50 
States, since time and memory runneth not to the contrary, they 
decided to strike that down out of some strange reading of the 
First Amendment of the Constitution. I will speak it plainly, 
Mr. Chairman, against the hope that some might be listening 
somewhere.
    Concluding that an act by an individual is covered by the 
speech clauses of the Constitution of the United States of 
America, they banned this act and in so doing, I would offer, 
acted as a super legislature. The nine people of the United 
States Supreme Court concluded, Mr. Chairman, that they and not 
the elected Republicans and Democrats and Independents of the 
50 State legislatures of this country would decide what was and 
was not----
    Mr. Nadler. Would the gentleman yield for a question?
    Mr. Pence. I will not yield. I'm sure there will be plenty 
of time elsewhere.
    I believe this issue, Mr. Chairman, goes to whose country 
this is. More than 80 percent, we've heard again and again and 
again, more than 80 percent of the American people would like 
for this Congress to have the ability and State jurisdictions 
to have the ability to give a parking ticket to that under 
which my father was buried and fought and that under which 
every patriot who has bled and died for this country has 
fought. The desecration of that as an act of civil 
disobedience, time-honored tradition in America, and getting a 
parking ticket infraction penalty for it ought to remain so.
    This is about this Congress, Mr. Chairman, asserting its 
ability to express the community standards in this democracy of 
the people of the United States of America. We heard an 
interesting discussion earlier, Mr. Chairman, about who is the 
ultimate opiner. Well, I would offer to you today humbly that 
our Constitution does not begin with the phrase ``We, the 
Supreme Court'' or ``We, the elites of the United States of 
America, in order to form a more perfect union . . .'' It's 
``We, the people . . .'' And the debate that we will have today 
and the debate that we will bring out of this Judiciary 
Committee and onto the floor of the Congress I believe is that 
profound.
    And I urge opposition to the amendment, and I urge strong 
support for the constitutional amendment. It is about whose 
country this is. And it is about this Congress reasserting that 
this is a representative democracy, and the voice of the 
people, the standards of the people, the passion and patriotism 
of the people of this Nation will be heard.
    And I yield back the balance of my time.
    Chairman Sensenbrenner. The gentleman's time has expired.
    The question is on the Watt amendment. Those in favor will 
say aye? Opposed, no?
    The noes appear to have it----
    Mr. Watt. I ask for a rollcall.
    Chairman Sensenbrenner. A rollcall will be ordered. Those 
in favor of the amendment offered by the gentleman from North 
Carolina, Mr. Watt, 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. Coble?
    Mr. Coble. No.
    The Clerk. Mr. Coble, no. Mr. Smith?
    Mr. Smith. No.
    The Clerk. Mr. Smith, no. Mr. Gallegly?
    Mr. Gallegly. No.
    The Clerk. Mr. Gallegly, no. Mr. Goodlatte?
    [No response.]
    The Clerk. Mr. Chabot?
    Mr. Chabot. No.
    The Clerk. Mr. Chabot, no. Mr. Jenkins?
    Mr. Jenkins. No.
    The Clerk. Mr. Jenkins, no. Mr. Cannon?
    Mr. Cannon. No.
    The Clerk. Mr. Cannon, no. Mr. Bachus?
    [No response.]
    The Clerk. Mr. Hostettler?
    [No response.]
    The Clerk. Mr. Green?
    Mr. Green. No.
    The Clerk. Mr. Green, no. Mr. Keller?
    [No response.]
    The Clerk. Ms. Hart?
    [No response.]
    The Clerk. Mr. Flake?
    [No response.]
    The Clerk. Mr. Pence?
    Mr. Pence. No.
    The Clerk. Mr. Pence, no. Mr. Forbes?
    Mr. Forbes. No.
    The Clerk. Mr. Forbes, no. Mr. King?
    Mr. King. No.
    The Clerk. Mr. King, no. Mr. Carter?
    Mr. Carter. No.
    The Clerk. Mr. Carter, no. Mr. Feeney?
    Mr. Feeney. No.
    The Clerk. Mr. Feeney, no. Mrs. Blackburn?
    Mrs. Blackburn. No.
    The Clerk. Mrs. Blackburn, no. Mr. Conyers?
    [No response.]
    The Clerk. Mr. Berman?
    Mr. Berman. No.
    The Clerk. Mr. Berman, no. Mr. Boucher?
    [No response.]
    The Clerk. Mr. Nadler?
    Mr. Nadler. No--I mean, yes.
    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?
    Ms. Jackson Lee. Aye.
    The Clerk. Ms. Jackson Lee, aye. Ms. Waters?
    Ms. Waters. Aye.
    The Clerk. Ms. Waters, aye. Mr. Meehan?
    [No response.]
    The Clerk. Mr. Delahunt?
    [No response.]
    The Clerk. Mr. Wexler?
    Mr. Wexler. Aye.
    The Clerk. Mr. Wexler, aye. Ms. Baldwin?
    Ms. Baldwin. Aye.
    The Clerk. Ms. Baldwin, aye. Mr. Weiner?
    Mr. Weiner. Aye.
    The Clerk. Mr. Weiner, aye. Mr. Schiff?
    Mr. Schiff. Aye.
    The Clerk. Mr. Schiff, aye. Ms. Sanchez?
    Ms. Sanchez. Aye.
    The Clerk. Ms. Sanchez, aye. Mr. Chairman?
    Chairman Sensenbrenner. No.
    The Clerk. Mr. Chairman, no.
    Chairman Sensenbrenner. Are there Members who wish to cast 
or change their vote? The gentleman from Massachusetts, Mr. 
Meehan.
    Mr. Meehan. Aye.
    The Clerk. Mr. Meehan, aye.
    Chairman Sensenbrenner. The gentleman from Florida, Mr. 
Keller?
    Mr. Keller. No.
    The Clerk. Mr. Keller, no.
    Chairman Sensenbrenner. The gentlewoman from Pennsylvania, 
Ms. Hart?
    Ms. Hart. No.
    The Clerk. Ms. Hart, no.
    Chairman Sensenbrenner. The gentleman from Alabama, Mr. 
Bachus?
    Mr. Bachus. No.
    The Clerk. Mr. Bachus, no.
    Chairman Sensenbrenner. The gentleman from Indiana, Mr. 
Hostettler?
    Mr. Hostettler. No.
    The Clerk. Mr. Hostettler, no.
    Chairman Sensenbrenner. Further Members who wish to cast or 
change their vote? If not, the clerk will report.
    The Clerk. Mr. Chairman, there are 12 ayes and 19 noes.
    Chairman Sensenbrenner. And the amendment is not agreed to.
    Are there further amendments?
    Mr. Nadler. Mr. Chairman?
    Chairman Sensenbrenner. The gentleman from New York, Mr. 
Nadler.
    Mr. Nadler. I rise to strike the last word.
    Chairman Sensenbrenner. The gentleman is recognized for 5 
minutes.
    Mr. Nadler. Thank you, Mr. Chairman.
    Mr. Chairman, I have to comment on something that our last 
speaker before the vote--I think it was Mr. Pence--was saying 
after he refused to yield. He made a couple comments.
    Essentially, he said that most people in this country don't 
agree with flag burning and if the Supreme Court said that that 
violates the First Amendment, well, by God, we have the right 
to prohibit speech that we don't agree with. And that's the 
essence of this amendment, and I'm glad he was direct enough to 
pretty much say so.
    What this amendment really says is if we don't like a 
certain kind of speech where we define or what Congress in the 
future will define as flag desecration because we don't agree 
with the ideas, we will ban them. And that's a very straight 
violation of the First Amendment. It's a straight abrogation of 
the Bill of Rights. It's the essence of dictatorial government, 
frankly, but I understand the feeling. We all share feelings of 
revulsion at people who do such things. But some people want to 
give in to those feelings of revulsion and narrow freedom of 
speech, and that's what this is about.
    Secondly, I appreciate the gentleman's consideration of the 
Supreme Court as an oligarchy and his lack of appreciation for 
the Supreme Court telling the majority of the American people 
what to do. I agree. I mean, a couple years ago, the Supreme 
Court imposed on the American people a President that most of 
the American people voted against. But we recognize that the 
Supreme Court is the final arbiter, not the final opiner in our 
system, and unless we want to have civil wars, we have to let 
them ultimately have that decision. So we live until the next 
election with a President imposed on the people of the United 
States by a Supreme Court which chose to impose a President who 
most of the American people voted against, didn't even get a 
plurality of the vote. Vice President Gore got more votes than 
anybody else, but he's not the President because the Supreme 
Court said so. That's our system.
    Now, if we want to invent a better system, maybe we will. 
But I appreciate the frustration of the gentleman at the role 
of the Supreme Court. I would choose to live with that, with 
Presidential elections and with protection of free speech.
    I yield back.
    Chairman Sensenbrenner. The Chair strikes the last word.
    I think to get this debate back in the context, the First 
Amendment does not give an absolute right for anybody to have 
free speech. One cannot yell ``Fire'' in a crowded theater. One 
cannot make a defamatory comment against another. Those are 
limitations on an absolute right for free speech.
    Secondly, the Constitution has been amended upon occasion 
to reverse Supreme Court decisions. The 11th Amendment, in the 
first decade of the Constitution, reversed a Supreme Court 
decision. The 16th Amendment on income taxes reduced a 
Supreme--reversed a Supreme Court decision. I think it arguably 
can be said that certain provisions of the 14th Amendment 
reversed the Dred Scott decision.
    So when Congress and the several States have determined 
that the Supreme Court is wrong and is off base, the proper way 
to go about it is through the amendatory process. That's what 
we're doing here, and that's why this amendment is a valid vote 
on whether or not this Committee agrees with the two Supreme 
Court decisions on flag desecration. And I yield back the 
balance of my time.
    Are there further amendments? The gentleman from--are there 
further amendments? The gentleman from California, Mr. Berman.
    Mr. Berman. Mr. Chairman, I move to strike the last word.
    Chairman Sensenbrenner. The gentleman is recognized for 5 
minutes.
    Mr. Berman. I yield my time to the gentleman from New York.
    Mr. Nadler. I thank the gentleman for yielding.
    Mr. Chairman, Congress has indeed amended the--or Congress 
and the State legislatures have indeed amended the Constitution 
to overturn Supreme Court decisions in the past. There's 
absolutely nothing wrong with that.
    What we have never thus far done, until this amendment that 
we're considering now--we've considered other amendments, but 
we've never passed other amendments that have narrowed any of 
the protections of the Bill of Rights. That's what this 
amendment would do. It would narrow the Supreme Court's 
interpretation of freedom of speech in the First Amendment. We 
have never adopted an amendment--you are quite right. Free 
speech is not absolute. You can't shout ``Fire'' in a crowded 
theater. The Supreme Court interpreted the First Amendment to 
permit that kind of limitation.
    What we have never done is to pass an amendment to narrow 
the Supreme Court's interpretation of any of the amendments 
constituting the Bill of Rights. It would be a terrible thing 
to start doing that, and that's another objection to this 
amendment because that's what we would be doing. We would be 
saying that the Supreme Court's interpretation of what freedom 
of speech is is too broad and the American people must live 
with a narrower interpretation of the freedom of speech in the 
First Amendment than the Supreme Court has done because we 
judge that flag desecration is so terrible. And why are we 
going to establish this terrible precedent of amending the Bill 
of Rights by constitutional amendment for the first time to 
narrow it? Because of the plethora of flag desecrations? How 
many are there? Where's the problem? If there were a problem, I 
don't think we should deal with it this way. We should deal 
with it through ridicule and through better speech. The remedy 
for bad speech, as Jefferson said, is good speech. Ridicule the 
people who do it. Point out how wrong they are. Trust that the 
American people will judge their competing ideas and choose the 
right one. That's the American way.
    But even that aside, we don't see the problem. I don't see 
any great number of flag desecrations that we're worried about.
    I yield--well, I thank the gentleman for yielding and I 
yield back.
    Mr. Berman. Just on the issue of Marbury v. Madison, from 
the USIA website--that's the site that's there for the rest of 
the world to see about the American system--there's an 
explanation of Marbury v. Madison. The critical importance of 
Marbury is the assumption of several powers by the Supreme 
Court. One was the authority to declare acts of Congress and, 
by implication, acts of the President unconstitutional if they 
exceeded the powers granted by the Constitution. But even more 
important, the Court became the arbiter of the Constitution, 
the final authority on what the document meant. As such, the 
Supreme Court became, in fact as well as in theory, an equal 
partner in government and it has played that role ever since, 
the gentleman from Indiana notwithstanding.
    Ms. Waters. Mr. Chairman?
    Chairman Sensenbrenner. Are there further amendments?
    Ms. Waters. Mr. Chairman?
    Chairman Sensenbrenner. The gentlewoman from California, do 
you have an amendment?
    Ms. Waters. No. I move to strike the last word.
    Chairman Sensenbrenner. The gentlewoman is recognized for 5 
minutes.
    Ms. Waters. Thank you very much. Mr. Chairman and Members, 
I've been over in another Committee, and I have not been here 
for all of the debate and the discussion on this legislation. 
I'm pleased to have a minute or so to talk about this amendment 
and this legislation. I think it's very important for me to 
place in the record my strong support for the flag, my respect 
for the flag. However, I see this particular legislation as 
being very divisive and misdirected.
    Some of us have organized in this Congress to try and 
protect veterans. This Administration is proposing cuts to our 
veterans that I think are absolutely unconscionable. Many of us 
work day in and day out to support our veterans, to try and 
make sure that our veterans hospital are providing the services 
they should be, trying to get rid of these long waiting 
periods. Many of us fight to expand burial grounds. Many of us 
fight to get rid of co-payments. And we think that the 
attention that we should be paying to our veterans is being 
deflected by this kind of legislation.
    I support Mr. Watt's amendment, and I just want to share 
with all of those who are here today that we should not be 
divided, particularly at a time when we are trying to fight 
terrorism and provide homeland security. This is not the time 
to be divided about flag desecration.
    We do have a Constitution. We do have First Amendment 
rights. We may not always like the fact that they provide 
protection in certain ways that are important to a democracy. 
But I think we would all be better off if we stood up for 
veterans and we stood up for the rights of veterans to have a 
decent quality of life once they have served in the military 
and that we're willing to put our money where our mouths are 
and make sure that in this budget that is being debated at this 
time in the Congress of the United States, instead of hiding 
and supporting cuts to our veterans and waving the flag on 
desecration, we should indeed be talking about how we honor 
that flag by supporting the veterans and making sure that they 
have a decent quality of life after they have served.
    I yield back the balance of my time.
    Mr. Watt. Mr. Chairman?
    Chairman Sensenbrenner. Are there further amendments?
    Mr. Watt. Mr. Chairman?
    Chairman Sensenbrenner. The gentleman from North Carolina, 
do you have an amendment?
    Mr. Watt. No, sir. I move to strike the last word on the 
bill.
    Chairman Sensenbrenner. The gentleman is recognized for 5 
minutes.
    Mr. Watt. Thank you, Mr. Chairman, and I won't, hopefully, 
use the whole 5 minutes. But I thought in the interest of 
exercising my free speech rights for this short period, I would 
disagree with both the Chairman and Mr. Nadler's 
characterization of what this bill does and make it absolutely 
clear that this bill does not overturn decisions of the Supreme 
Court. There's nothing in this bill that does that. Nor does it 
directly undermine the First Amendment to the Constitution, as 
Mr. Nadler says.
    All this bill does in the interest of honesty--and if 
everybody is honest about it, you will read the language. All 
it says is that the Congress shall have power to prohibit the 
physical desecration of the flag of the United States.
    When Congress exercises that power, it will have to 
exercise it consistent with the First Amendment to the 
Constitution, in my opinion.
    Mr. Nadler. Would the gentleman yield?
    Mr. Watt. My amendment would have made that absolutely 
explicit, but in my opinion, whether we pass my amendment or 
didn't pass my amendment, I think whatever Congress does to 
exercise the power to prohibit the physical desecration of the 
flag will have to be done consistent with the First Amendment.
    So we haven't overruled any Supreme Court decision. We 
haven't overruled the First Amendment. Life is going to go on 
in this country whether this amendment passes or not, just as 
life went on after the Supreme Court decided what it did in the 
Presidential situation.
    Mr. Nadler. Would the gentleman yield?
    Mr. Watt. Our democracy is strong enough to withhold any of 
this craziness, including our efforts to be lost in the weeds 
of creative writing here. We are not going to do anything that 
is inconsistent with the Constitution, and I think we should be 
honest about this. This is all a political statement. It is all 
about exactly what Ms. Waters just talked about, hiding the 
fact that at the same time people are saying they are waving 
the flag and protecting the flag from desecration, they are 
cutting veterans' benefits and undermining the rights of 
Americans in ways that are unprecedented. And if we leave this 
debate with anything else, we will have missed that point.
    Mr. Nadler. Will the gentleman yield?
    Mr. Watt. I'm happy to yield to the gentleman.
    Mr. Nadler. Thank you. I certainly agree with--I thank the 
gentleman for yielding. I'd certainly agree with Ms. Lofgren, 
but I think that I have to disagree with the gentleman's 
interpretation here. The Supreme Court said that a flag 
desecration statute----
    Mr. Watt. I want you to exercise your free speech rights.
    Mr. Nadler.--was a violation--without being consistent with 
this general bill. The Supreme Court said that a flag 
desecration statute was a violation of the First Amendment. 
This bill--this proposed amendment would say the Congress shall 
have the power to pass--to adopt a flag desecration amendment. 
What it doesn't say in so many words but what it clearly means 
is despite the First Amendment or despite the Supreme Court's 
interpretation of the First Amendment to ban it. And clearly 
this amendment, as any amendment, supersedes prior amendments. 
And to the extent that it conflicts with the Supreme Court's 
prior interpretation of the First Amendment, it would prevail. 
So it does overturn a Supreme Court decision. It would clearly 
allow statutes the Supreme Court has said violates the First 
Amendment and, therefore, it would narrow the interpretation of 
the First Amendment. And, yeah, the country will survive, but 
then our people will be less free.
    Mr. Watt. Can I just reclaim my time----
    Mr. Nadler. Yes, sir.
    Mr. Watt.--to say that I disagree with you, and I disagree 
with what the Chairman characterized, but that's the American 
way and that's--you know, that's what free speech is all about. 
And I think our Nation is going to survive this crisis. The 
question is our Nation going to survive the assaults on the 
rights of veterans and the assaults on the rights of the 
American people that are under--that are taking place in this 
country----
    Chairman Sensenbrenner. The gentleman's time has expired.
    Ms. Jackson Lee. Mr. Chairman? Mr. Chairman? Mr. Chairman?
    Chairman Sensenbrenner. For what purpose does the 
gentlewoman from Texas----
    Ms. Jackson Lee. Strike the last word.
    Chairman Sensenbrenner. The gentlewoman is recognized for 5 
minutes.
    Ms. Jackson Lee. Thank you very much, Mr. Chairman.
    I simply want to respond to the statements made by the 
Chairman on the number of amendments that have amended the 
Constitution, and he's certainly accurate.
    I would make the argument that on those amendments there 
has been an enhancement of constitutional rights, particularly 
as relates to the 13th, 14th, and 15th Amendments which had to 
do with the question of abolishment of slavery and equality.
    I think the issue that we have with this debate and the 
issue that I have--let me speak for myself. One is the timing 
and whether or not this question is being politicized. Before 
we leave this week to go home to mourn with those who have lost 
loved ones, served this country, one thing that I understand--
and General Franks said it to me directly, that there is no 
divide in America on the support of the United States military, 
our troops, and the work and valiant sacrifice that has been 
made. There is no divide. Legislative initiatives like this, 
although people have a right to advocate for their position, 
are divisive. Why? Because it is restrictive.
    And whether you make the argument that the Supreme Court 
will interpret or not interpret, I believe the Supreme Court 
will ultimately hear a case that involves this legislation and 
will make a decision. And I believe that it would take the case 
on the premise that someone will believe or some of a lot of 
people will believe that it is an infringement on their First 
Amendment rights. The question is then why do it? Because the 
flag in its glory is maintained no matter who decides to act 
upon the flag. The flag is a symbol of our freedom.
    So I'm sorry that we have the legislation before us and 
that it attempts to divide us away from our military, our 
veterans, and also the First Amendment.
    I would also just say that I have a veterans' hospital in 
my district, and I know that the veterans have been extremely 
active on this issue. But I would encourage you to get more 
energized because there are cuts, but particularly the bad part 
is the number of veteran's families and veterans in particular 
who are kept out of hospitals because they make above $30,000 a 
year. If there is an outrage, that is certainly an outrage.
    So I know we'll work together again on many issues, but I 
think this flag burning question and this timing and the fact 
that it is restrictive and it is not enhancing, it is not 
helpful, it does not provide for freedom, it takes away from 
freedom, it is unfortunate that we would have this legislation 
in the Judiciary Committee. But, again, this is the rule of the 
majority. They have the right to present legislation, and I 
think it's important for my colleagues to recognize that. And 
as I've been told by those who want to hear the Democratic 
perspective--and I don't particularly suggest there's a 
Democratic perspective--let me characterize or clarify that to 
say to hear a different perspective, that it is important that 
we raise our voices on this issue and express our opposition 
that this is, in fact, a restriction of the constitutional 
right of the First Amendment, and we can expect to see this not 
only to the Supreme Court but in our district courts around the 
Nation. And I would hope that we will find a way to move beyond 
this because it is this Committee's role, I believe, to enhance 
rights and respect rights as opposed to deny them.
    I yield back, Mr. Chairman.
    Chairman Sensenbrenner. For what purpose does the gentleman 
from California, Mr. Schiff, seek recognition?
    Mr. Schiff. Mr. Chairman, I move to strike the last word.
    Chairman Sensenbrenner. The gentleman is recognized for 5 
minutes.
    Mr. Schiff. I thank the Chairman for the recognition.
    This is an extraordinarily difficult issue, I think, for 
all of us. Although some have used flag burning as opportunity 
to demagogue, there are a great many Americans who feel very 
passionately that the flag ought to be protected, who are, as 
indeed I'm sure every Member of this Committee, appalled by the 
idea of desecrating the flag or burning the flag or destroying 
the flag disrespectfully.
    At the same time, a great many Americans have an abiding 
faith and conviction in the First Amendment and are concerned 
with an intrusion into the broad protections of the First 
Amendment and the precedent that would set. And I have wrestled 
with this issue for years now, at times thinking constitutional 
amendment was the best approach, at times thinking otherwise.
    I have come to believe that there is a better alternative, 
and that is a statutory alternative that Rick Boucher has 
introduced entitled the Flag Protection Act. And essentially 
this bill prohibits any person from destroying or damaging a 
flag of the United States with the intent to provoke imminent 
violence or a breach of the peace and in circumstances likely 
to produce imminent violence or breach of the peace. It also 
prohibits the damaging of a flag belonging to the United 
States, damaging a flag of another Federal land, and the 
advantages of this is that I believe that this statute is 
constitutional, that it would meet the test of constitutional 
scrutiny. It is framed in a narrow enough fashion where it 
could pass without the necessity of amending the Constitution 
and consistent with all of our beliefs in the First Amendment.
    Now, it is true that it does not go as far as a 
constitutional amendment because it would exclude someone from 
basically burning their own flag in conditions where it was not 
likely to provoke an incident, burning their own flag, for 
example, in the privacy of their own home. But it does have the 
advantage of making a national statement, of allowing the 
Congress of the United States and the President of the United 
States to make a strong statement of support for the flag, to 
enact criminal penalties for its destruction or desecration, 
and meet that genuine and heartfelt desire of the American 
people to support the flag, to protect that symbol, and to make 
a sincere acknowledgment of the passions of people who have 
fought for this country and died for this country, both who 
love the flag and who love the First Amendment.
    And so I believe the better approach is a statutory 
approach that accomplishes many of our objectives but does not 
risk the erosion of any of the protections of the First 
Amendment.
    I thank the Chair for yielding, and I yield back the 
balance of my time.
    Mr. Coble. [Presiding.] The gentleman's time has expired.
    For what purpose does the gentleman from California seek 
recognition?
    Mr. Gallegly. Mr. Chairman, I move to strike the last word.
    Mr. Coble. The gentleman is recognized for 5 minutes.
    Mr. Gallegly. Mr. Chairman, there's been significant 
remarks made about who has supported veterans and who has not 
supported veterans, and I would submit to you that the record 
speaks much louder than mere words, and with that I would yield 
to the gentleman from Ohio, my good friend, Mr. Chabot.
    Mr. Chabot. Thank you for yielding, and I'm not going to 
take the whole time, but, again, the topic here today was the 
constitutional amendment to basically stop the desecration of 
the American flag in this country. But we've heard a number now 
of allegations that our side has cut veterans' benefits, has 
cut the veterans--it hasn't been really responded to yet, and I 
think it's appropriate that we get the truth out there, because 
there's been really a campaign of misinformation out there for 
some time, and veterans have been, unfortunately, deceived.
    The fact is that in the bill that this Congress passed on 
April 11th, we allocated $63.8 billion, and that is a 10.9 
percent increase over last year. Let me repeat that: 10.9 
percent increase over last year. So this allegation that we've 
cut veterans' benefits is just not true. And, in fact, relative 
to medical care for veterans, we had the highest ever increase 
in overall medical benefits for veterans in this bill.
    So any of these allegations about cuts in veterans, they're 
just not true.
    I thank the gentleman for yielding.
    Mr. Gallegly. I yield back.
    Chairman Sensenbrenner. [Presiding.] The question----
    Mr. Delahunt. Mr. Chairman?
    Chairman Sensenbrenner. The gentleman from Massachusetts--
--
    Mr. Delahunt. I move----
    Chairman Sensenbrenner. Do you have anything you wish to 
say on the question at hand?
    Mr. Delahunt. I move to strike the last word, Mr. Chairman.
    Chairman Sensenbrenner. The Chair will remind the gentleman 
from Massachusetts that there is a rule that requires that 
debate be relevant to the question which is currently on 
reporting favorably House Joint Resolution 4. And I look 
forward to hearing your thoughts on that topic for the next 5 
minutes.
    Mr. Delahunt. Well, I would ask the Chairman if the remarks 
just simply made by the gentleman from Ohio were restricted to 
the issue at hand.
    Chairman Sensenbrenner. The answer is no, but the Chair has 
been very liberal, which is uncharacteristic of him---- 
[Laughter.]
    Mr. Delahunt. It is certainly uncharacteristic.
    Chairman Sensenbrenner. The time has come to get back to 
what the rules require. The gentleman's recognized.
    Mr. Delahunt. I thank the Chair.
    You know, I support this particular amendment, but I think 
that an issue was raised by Mr. Watt in terms of the language. 
And, again, the language that he referred to, ``the Congress 
shall have power to prohibit the physical desecration of the 
flag of the United States,'' there's no reference in there to 
any other constitutional provisions in the Bill of Rights. You 
know, we're creating here a certain legislative history, and I 
haven't heard any response that I think, other than a 
disagreement by Mr. Nadler, any disagreement as to the 
interpretation. And I think for the sake of clarity, I'd like 
to hear from someone on--you know, some Member of the Committee 
that is a principal proponent of the amendment. Otherwise, what 
we're doing here could very well go for naught.
    And I would also take just 30 seconds to respond to the 
gentleman from Ohio on the issue of veterans' benefits. I see 
representatives of the various veterans organizations sitting 
here. If they want the truth, they should go and look at the 
Committee report that was drafted by the Republican Chair, Mr. 
Smith, in terms of the treatment of veterans in this country. I 
commend your attention to that particular document because that 
contains the truth.
    And with that, I yield and seek a response to my question.
    Chairman Sensenbrenner. The Chair notes that the gentleman 
has 2 minutes and 20 seconds left.
    Mr. Chabot. Mr. Chairman, I was not--I didn't hear what the 
gentleman asked, so if he's directing it at me, I didn't hear 
what the question was.
    Mr. Delahunt. Well, again, the gentleman from Ohio is the 
Chair of the Subcommittee that is sponsoring this, and I was 
posing the question that was raised by Mr. Watt. The drafting 
of this particular resolution, the operative language that he 
quoted, ``the Congress shall have power to prohibit the 
physical desecration of the flag of the United States,'' would 
not seem, as he argued, to override any First Amendment 
concerns that I understand prompted the filing of this 
particular resolution.
    Mr. Chabot. Would the gentleman yield?
    Mr. Delahunt. I yield.
    Mr. Chabot. Yes, I thank the gentleman for yielding.
    What this particular constitutional amendment would do is 
it would give Congress the power to prohibit the physical 
desecration of the flag of the United States. The Congress 
would then go back and write a bill. Arguably, I think the 
Congress would do that because 50 State legislatures had it on 
the books. We had a Federal law on the books. They were struck 
down in a 5-4 decision by the Supreme Court.
    If this would pass and somebody would challenge it, it 
could go back up to the United States Supreme Court and the 
Supreme Court could rule. They could look at the First 
Amendment. They could look at this amendment that we would have 
passed. They could look at that particular legislation that was 
written subsequent to this, and a decision would be made. We 
may end up--we could theoretically end up back here again 
sometime down the road if the Supreme Court on a 5-4 vote did 
something that the public, through their elected 
representatives----
    Mr. Delahunt. Just taking back my time for purposes of 
clarification, what you're suggesting is then the--what 
prompted this, the filing of this particular resolution, was 
First Amendment concerns--rather, let me put it this way, the 
First Amendment concerns that have been raised are not 
particularly addressed by this constitutional amendment.
    Mr. Chabot. Would the gentleman yield?
    Mr. Delahunt. Yes.
    Chairman Sensenbrenner. The gentleman's time has expired. 
The question--are there further amendments?
    [No response.]
    Chairman Sensenbrenner. The question--a reporting quorum is 
present. The question is on reporting favorably House Joint 
Resolution 4. Those in favor will say aye. Opposed, no.
    The ayes appear to have it.
    Mr. Chabot. Rollcall vote.
    Chairman Sensenbrenner. Rollcall is demanded. The question 
is on reporting House Joint Resolution 4 favorably. Those in 
favor will as your names are called answer aye, those opposed, 
no, and the clerk with call the roll.
    The Clerk. Mr. Hyde?
    [No response.]
    The Clerk. Mr. Coble?
    [No response.]
    The Clerk. Mr. Smith?
    Mr. Smith. Aye.
    The Clerk. Mr. Smith, aye. Mr. Gallegly?
    Mr. Gallegly. Aye.
    The Clerk. Mr. Gallegly, aye. Mr. Goodlatte?
    [No response.]
    The Clerk. Mr. Chabot?
    Mr. Chabot. Aye.
    The Clerk. Mr. Chabot, aye. Mr. Jenkins?
    Mr. Jenkins. Aye.
    The Clerk. Mr. Jenkins, aye. Mr. Cannon?
    Mr. Cannon. Aye.
    The Clerk. Mr. Cannon, aye. Mr. Bachus?
    [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. Ms. Hart?
    Ms. Hart. Aye.
    The Clerk. Ms. Hart, aye. Mr. Flake?
    [No response.]
    The Clerk. Mr. Pence?
    Mr. Pence. Aye.
    The Clerk. Mr. Pence, aye. Mr. Forbes?
    Mr. Forbes. Aye.
    The Clerk. Mr. Forbes, aye. Mr. King?
    Mr. King. Aye.
    The Clerk. Mr. King, aye. Mr. Carter?
    Mr. Carter. Aye.
    The Clerk. Mr. Carter, aye. Mr. Feeney?
    Mr. Feeney. Aye.
    The Clerk. Mr. Feeney, aye. Mrs. Blackburn?
    Mrs. Blackburn. Aye.
    The Clerk. Mrs. Blackburn, aye. Mr. Conyers?
    Mr. Conyers. No.
    The Clerk. Mr. Conyers, no. Mr. Berman?
    Mr. Berman. No.
    The Clerk. Mr. Berman, no. Mr. Boucher?
    [No response.]
    The Clerk. Mr. Nadler?
    Mr. Nadler. No
    The Clerk. Mr. Nadler, no. Mr. Scott?
    Mr. Scott. No.
    The Clerk. Mr. Scott, no. Mr. Watt?
    [No response.]
    The Clerk. Ms. Lofgren?
    Ms. Lofgren. No.
    The Clerk. Ms. Lofgren, no. Ms. Jackson Lee?
    Ms. Jackson Lee. No.
    The Clerk. Ms. Jackson Lee, no. Ms. Waters?
    [No response.]
    The Clerk. 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. Ms. Sanchez?
    Ms. Sanchez. No.
    The Clerk. Ms. Sanchez, no. Mr. Chairman?
    Chairman Sensenbrenner. Aye.
    The Clerk. Mr. Chairman, aye.
    Chairman Sensenbrenner. Are there Members in the chamber 
who wish to cast or change their votes? The gentleman from 
North Carolina, Mr. Coble?
    Mr. Coble. Aye.
    The Clerk. Mr. Coble, aye.
    Chairman Sensenbrenner. The gentleman from Alabama, Mr. 
Bachus?
    Mr. Bachus. Aye.
    The Clerk. Mr. Bachus, aye.
    Chairman Sensenbrenner. The gentlewoman from California, 
Ms. Waters?
    Ms. Waters. No.
    The Clerk. Ms. Waters, no.
    Chairman Sensenbrenner. Are there further Members who wish 
to cast or change their votes? If not, the clerk will report.
    The Clerk. Mr. Chairman, there are 18 ayes and 12 noes.
    Chairman Sensenbrenner. The gentleman from North Carolina, 
Mr. Watt?
    Mr. Watt. This is on the bill?
    Chairman Sensenbrenner. Yes.
    Mr. Watt. I vote no.
    The Clerk. Mr. Watt, no.
    Chairman Sensenbrenner. The clerk will report again.
    The Clerk. Mr. Chairman there are 18 ayes and 13 noes.
    Chairman Sensenbrenner. And the motion to report favorably 
is agreed to. 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

    H.J. Res. 4, the ``Flag Protection Amendment,'' proposing 
an amendment to the U.S. Constitution authorizing Congress to 
enact legislation prohibiting physical desecration of the flag 
of the United States, would mark the first time in our nation's 
history that the Constitution had ever been amended in order to 
curtail an existing right. In this instance, the proposed 
amendment would narrow the scope of the First Amendment's 
protection of free expression. This dangerous and unnecessary 
assault on our fundamental liberties would set a terrible 
precedent. For the reasons set out below, we respectfully 
dissent.
    As a general matter, Congress has treated the 
Constitutional amendment process as a remedy of last resort. 
Although numerous amendments to the Constitution have been 
proposed, it has been a power used rarely and with great care. 
Over more than 200 years, our Constitution has been amended 
only 27 times. If ratified, H.J. Res. 4 would, for the first 
time in our Nation's history, modify the Bill of Rights to 
limit freedom of expression.
    This Constitutional amendment is a response to a pair of 
Supreme Court decisions, Texas v. Johnson, 491 U.S. 397 (1989) 
and United States v. Eichman, 496 U.S. 310 (1990), in which the 
Court held that state and Federal Government efforts to 
prohibit physical ``desecration'' of the flag by statute were 
content-based political speech restrictions and imposed 
unconstitutional limitations on that speech.\1\
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    \1\ The proposed amendment reads, in its relevant part, ``The 
Congress shall have power to prohibit the physical desecration of the 
flag of the United States.'' H.J. Res. 4 108th Cong.(2001).
---------------------------------------------------------------------------

                             I. BACKGROUND:

    The first flag desecration statutes originated in the 
States in the late 19th century after supporters failed to 
obtain Federal legislation prohibiting commercial or political 
``misuse'' of the flag. During the period between 1897 and 
1932, flag desecration statutes were enacted in every state. 
These statutes outlawed use of the flag for a number of 
purposes, including commercial advertising, marking the flag 
for political, commercial or other purposes, or publicly 
mutilating, trampling, defacing or defiling or casting 
contempt, by words or action, upon the flag.\2\
---------------------------------------------------------------------------
    \2\ Most of these statutes were eventually struck down as 
unconstitutional in a series of lower court decisions, usually on the 
grounds of vagueness.
---------------------------------------------------------------------------
    Congress remained relatively silent on the issue throughout 
that period, approving the first Federal flag desecration law 
in 1968 \3\ in the aftermath of a highly publicized Central 
Park flag burning incident in protest against the Vietnam War. 
The 1968 Federal law made it illegal to ``knowingly'' cast 
``contempt'' upon ``any flag of the United States by publicly 
mutilating, defacing, defiling, burning, or trampling upon 
it.'' The law imposed a penalty of up to $1,000 in fines and/or 
1 year in prison.
---------------------------------------------------------------------------
    \3\ 18 U.S.C. 700.
---------------------------------------------------------------------------
    Shortly after passage of the 1968 law, the Supreme Court 
considered three notable cases concerning the flag; however, 
none of these decisions directly addressed the flag burning 
issue. In Street v. New York,\4\ the Court ruled that New York 
could not convict a person for making verbal remarks 
disparaging the flag. In 1972, the Court ruled in Smith v. 
Goguen \5\, that Massachusetts could not prosecute a person for 
wearing a small cloth replica of the flag on the seat of his 
pants based on a state law making it a crime to publicly treat 
the U.S. flag with ``contempt.'' The Court ruled that the law 
was unconstitutionally vague. In Spence v. Washington,\6\ the 
Court overturned a Washington state ``improper use'' flag law, 
which, among other things, barred placing any marks or designs 
upon the flag or displaying such altered flags in public view. 
These decisions intimated but did not expressly hold that flag 
burning for political purposes constituted protected activity 
under the First Amendment.
---------------------------------------------------------------------------
    \4\ 394 U.S. 576 (1969).
    \5\ 415 U.S. 566 (1974).
    \6\ 418 U.S. 405 (1974).
---------------------------------------------------------------------------
    In 1989, the Supreme Court finally addressed whether a flag 
burning statute violates the First Amendment in Texas v. 
Johnson.\7\ The Court determined that the First Amendment 
protects those citizens who burn the U.S. flag in political 
protest from prosecution. In that case, Gregory Johnson was 
arrested for burning the U.S. flag in violation of Texas' 
``Venerated Objects'' law \8\ during a demonstration outside of 
the Republican National Convention in Dallas. The Texas statute 
outlawed ``intentionally or knowingly'' desecrating a 
``national flag.'' According to the statute, the term 
``desecrate'' was defined to mean ``to deface, damage or 
otherwise physically mistreat in a way that the actor knows 
will seriously offend one or more persons likely to observe or 
discover his action.'' \9\ The Court of Appeals for the Fifth 
District of Texas upheld Johnson's conviction.\10\ Texas' 
highest criminal court, the Court of Criminal Appeals, reversed 
the lower court decision, holding that the Texas law had been 
unconstitutionally applied to Johnson in violation of his First 
Amendment rights.\11\
---------------------------------------------------------------------------
    \7\ 491 U.S. 397 (1989).
    \8\ Tex. Penal Code Ann. Sec. 42.09(a)(3) (1989).
    \9\ Tex. Penal Code Ann. Sec. 42.09(b) (1989).
    \10\ 706 S.W. 2d 120 (1986).
    \11\ 755 S.W. 2d 92 (1988).
---------------------------------------------------------------------------
    The Supreme Court affirmed the Texas Court of Criminal 
Appeals ruling. The Court found that Johnson's conduct 
constituted symbolic expression which was both intentional and 
overtly apparent. The Court determined that, since Johnson's 
guilt depended on the communicative aspect of his expressive 
conduct and was restricted because of the content of the 
message he conveyed, the Texas statute was ``content-based'' 
and subject to ``the most exacting scrutiny test'' outlined in 
Boos v. Barry, 485 U.S. 312 (1988). Further, the Court stated 
that, although the Government has an interest in encouraging 
proper treatment of the flag, it may not criminally punish a 
person for burning a flag as a means of political protest.\12\ 
The Court determined that the Texas statute was designed to 
prevent citizens from conveying ``harmful'' messages, 
reflecting a government interest that violated the First 
Amendment principle that government may not prohibit expression 
of an idea simply because it finds the idea itself offensive or 
disagreeable.\13\
---------------------------------------------------------------------------
    \12\ The Court ruled that Texas' proffered interest of preventing 
breaches of the peace was not implicated and that its interest in 
preserving the flag as a symbol of nationhood and national unity was 
related to the suppression of expression.
    \13\ Certain uses of the flag are misdemeanors under 4 U.S.C. 3, 
punishable by a fine of not more than $100 or imprisonment of not more 
than thirty days or both. Acts criminalized under existing Federal law 
include: using the flag in ``advertising of any nature,'' or any person 
who ``shall manufacture, sell expose for sale, or to pubic view, or 
give away or use for an purpose, any article or substance being an 
article of merchandise or a receptacle for merchandise or article or 
thing for carrying or transporting merchandise, upon which shall have 
been printed, painted, attached or otherwise placed a presentation of 
any such flag, standard, colors, or ensign, to advertise, call 
attention to, decorate, mark, or distinguish the article or substance 
on which so placed. . . .'' Although not enforceable under current 
precedents, these restrictions would become fully enforceable against 
businesses, individuals and any Member of Congress using the flag in a 
campaign ad, should the amendment be ratified. A formal representation 
of the exact flag is not required. The existing statute includes in the 
definition of ``flag,'' ``any picture or representation of either, or 
any part or parts of either, made fo any substance or represented on 
any substance, of any size evidently purporting to be either of said 
flag, standard, colors, or ensign of the United States of America or a 
picture or a representation of either, upon which shall be shown the 
colors, the stars and stripes, in any number of either thereof, or of 
any part or parts of either, by which the average person seeing the 
same without deliberation may believe the same to represent the flag. . 
. .''
---------------------------------------------------------------------------
    In response to the Johnson ruling, Congress took steps to 
amend the 1968 statute to make it ``content neutral'' by 
passing the ``Flag Protection Act of 1989.'' \14\ The Flag 
Protection Act of 1989 prohibited flag desecration under all 
circumstances by removing the statutory requirement that the 
conduct cast contempt upon the flag. The statute also defined 
the term ``flag'' in an effort to avoid any latent First 
Amendment vagueness problems.\15\ Following passage of the Flag 
Protection Act, a wave of the flag burnings took place in over 
a dozen cities. The first Bush administration decided to test 
the Flag Protection Act by bringing criminal charges against 
protesters who participated in two incidents, one in Seattle 
and the other in Washington, DC.\16\ In both cases, the Federal 
district courts relied on Johnson, striking down the 1989 law 
as unconstitutional when applied to political protesters.
---------------------------------------------------------------------------
    \14\ Pub. L. No. 101-131 (1989).
    \15\ The Flag Protection Act of 1989 defined ``flag'' as ``any flag 
of the United States, or any part thereof, make of any substance, of 
any size, in a form that is commonly displayed.'' 18 U.S.C. 700.
    \16\ The Washington, D.C. protest occurred on the steps of the 
Capitol.
---------------------------------------------------------------------------
    The Supreme Court accepted jurisdiction of these cases 
(consolidated as U.S. v. Eichman, 496 U.S. 310 (1990)), and, in 
a 5-4 decision upheld the lower Federal court rulings and 
struck down the Flag Protection Act of 1989.\17\ Again, the 
Court ruled that the Government's stated interest in protecting 
the status of the flag ``as a symbol of our Nation and certain 
national ideals'' was related to ``the suppression of free 
expression'' that gave rise to an infringement of First 
Amendment rights. The Court acknowledged that the 1989 law, 
unlike the Texas statute in Johnson, contained no content-based 
limitations on the scope of protected conduct. However, the 
Court determined, the Federal statute was subject to strict 
scrutiny because it could not be enforced without reference to 
the message of the ``speaker.''
---------------------------------------------------------------------------
    \17\ U.S. v. Eichman, 496 U.S. 310 (1990) (consolidating No. 89-
1433, U.S. v. Eichman, 731 F.Supp. 1123 (D.D.C., 1990), and U.S. v. 
Haggerty, 731 F.Supp. (W.D. WA., 1990)).
---------------------------------------------------------------------------
    Since the Eichman decision, Congress repeatedly considered 
and rejected a proposed Constitutional amendment specifying 
that ``the Congress and the states have the power to prohibit 
the physical desecration of the flag of the United States.''

       II. THE PROPOSED AMENDMENT WOULD ABRIDGE FREE EXPRESSION:

    Proponents of the amendment argue that desecration of the 
flag should not be considered speech within the meaning of 
First Amendment. Yet it is precisely the expressive content of 
acts involving the flag that the amendment would target. 
Indeed, it appears that proponents of the amendment sometimes 
wish to have it both ways. For example, an amendment offered by 
Rep. Scott replacing the word ``desecration'' with the word 
``burning'' was rejected precisely because it would have 
prohibited the destruction of a flag in a purely content 
neutral manner \18\. As Chairman Chabot observed, ``A debate 
and discussion as to what forms of desecration should be 
outlawed, such as `burning' will come at a later date in 
Congress. Therefore, this amendment should be rejected as 
unduly limiting the object and purpose of the Flag Protection 
Amendment, which is to protec t the flag from any acts of 
physical defilement or defacement, or as is described in this, 
desecration.'' \19\
---------------------------------------------------------------------------
    \18\ The term ``desecration'' itself is highly revealing. 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.'' Proponents of the 
amendment use similar language in defending the proposal.
    \19\ H.Rpt. 107-______, at ____ (2003)(statement of Rep. Chabot).
---------------------------------------------------------------------------
    That the criminal sanctions against flag burning in the 
Johnson case, and the ones the sponsors of this amendment would 
presumably seek to enact upon its adoption, are directly 
related to the expressive content of the act are clear. Current 
law prescribes that ``[t]he flag, when it is in such condition 
that it is no longer a fitting emblem for display, should be 
destroyed in a dignified way, preferably by burning.'' \20\ It 
is clear then, that prohibitions against flag burning or 
``physical desecration'' are fundamentally content-based. 
Burning a flag to demonstrate respect or patriotism is 
prescribed by current law. Should the proposed amendment pass, 
burning the flag to convey a political viewpoint of dissent or 
anger at the United States would become a crime.
---------------------------------------------------------------------------
    \20\ 4 U.S.C. 8(k).
---------------------------------------------------------------------------
    The Framers of the Constitution saw dissent and its 
protection as an affirmative social good.\21\ Limits on the 
manner of form of dissent must inevitably translate into limits 
on the content of the dissent itself. Limitations on the use of 
the flag in political demonstrations ultimately undermines the 
freedoms the flag represents.
---------------------------------------------------------------------------
    \21\ ``[T]hose 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.'' 
Kent Greenwalt, Speech and Crime, Am. B. Found. Res. J. 645, 672-3 
(1980).
---------------------------------------------------------------------------
    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 \22\ and 
continuing through the mid-1970's with Smith v. Goguen \23\ and 
Spence v. Washington,\24\ 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.\25\ 
Those who seek to justify H.J. Res. 4 on the grounds that flag 
desecration does not constitute ``speech'' are therefore 
denying decades of well understood law.\26\
---------------------------------------------------------------------------
    \22\ 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.
    \23\ 415 U.S. 94 (1972).
    \24\ 418 U.S. 405 (1974) (overturning convictions involving wearing 
a flag patch and attaching a peace sign to a flag).
    \25\ Texas v. Johnson, 491 U.S. at 397.
    \26\ 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.
---------------------------------------------------------------------------
    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.'' \27\
---------------------------------------------------------------------------
    \27\ U.S. ex rel Radich v. Criminal Court of N.Y., 385 F. Supp. 
165, 184 (1974).
---------------------------------------------------------------------------
    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.
    H.J. Res. 4 will also open the door to selective 
prosecution based purely on political beliefs. When John 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.\28\
---------------------------------------------------------------------------
    \28\ 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.'' \29\ 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.'' \30\
---------------------------------------------------------------------------
    \29\ See Robert J. Goldstein, Two Centuries of Flagburning in the 
United States, 163 Flag Bull. 65, 154 (1995).
    \30\ Id.
---------------------------------------------------------------------------
    Almost as significant as the damage H.J. Res. 4 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.\31\
---------------------------------------------------------------------------
    \31\ See, 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 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.'').
---------------------------------------------------------------------------
    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.\32\ By adopting H.J. 
Res 4 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.
---------------------------------------------------------------------------
    \32\ Rotunda, Treatise on Constitutional Law: Substance and 
Procedure Sec. 20.49 at 352 (2d ed. 1992).
---------------------------------------------------------------------------

      III. AMENDING THE CONSTITUTION TO LIMIT THE BILL OF RIGHTS 
                      SETS A DANGEROUS PRECEDENT:

    Adoption of H.J. Res. 4 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. Doing so would make it 
unlikely to be that this would 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.\33\
---------------------------------------------------------------------------
    \33\ Measures to Protect the American Flag, 1990: Hearing Before 
the Senate Comm. on the Judiciary, 101st Cong. (June 21, 1990) 
(statement of Charles Fried at 113).

    Amending the Constitution, particularly concerning issues 
which inflame public passion, represents a clear and present 
danger to our core liberties.\34\ Conservative legal scholar 
Bruce Fein emphasized this concern when he testified before the 
Subcommittee at 1995 House Judiciary hearings:
---------------------------------------------------------------------------
    \34\ 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 
Proposed Flag Desecration Amendment 1995: Hearing Before the Subcomm. 
on Constitution of the Senate Comm. on the Judiciary, 104th Cong. (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.\35\
---------------------------------------------------------------------------
    \35\ See Proposing an amendment to the Constitution of the United 
States authorizing the Congress and the States to prohibit the physical 
desecration of the flag of the United States, 1995: Hearing on H.J. 
Res. 79, Before the Subcomm. on Constitution of the House Comm. on the 
Judiciary, 104th Cong.(1995) [hereinafter, 1995 House Judiciary 
Hearings] (statement of Bruce Fein, at 1).
---------------------------------------------------------------------------
    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.'' \36\
---------------------------------------------------------------------------
    \36\ See 1997 House Judiciary Hearings, supra n. 31 (statement of 
Professor Norman Dorsen, New York University School of Law).
---------------------------------------------------------------------------

                    IV. FLAG BURNING RARELY OCCURS:

    H.J. Res. 4 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 
\37\ decision in 1989 there were only 45 reported incidents of 
flag burning.\38\ Experience with prior efforts to criminalize 
flag desecration indicates that imposing such penalties have 
actually instigated flag burning.\39\
---------------------------------------------------------------------------
    \37\ 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.
    \38\ Robert J. Goldstein, Two Centuries of Flagburning in the 
United States, 163 Flag Bull. 65 (1995).
    \39\ 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).
---------------------------------------------------------------------------
    In addition to the relative infrequency of flag burning, 
proponents of the measure cast the current state of the law as 
though Congress is impotent to protect the flag. However, even 
witnesses who disagree with the Supreme Court rulings in 
Johnson and Eichman have stated that the impact of those cases 
was not so broad. In 1995, Bruce Fein stated as much in 
subcommittee hearings. ``Flag desecrations when employed as 
``fighting words'' or when intended and likely to incite a 
violation of law remain criminally punishable under the Supreme 
Court precedents in Chaplinsky v. New Hampshire and Brandenburg 
v. Ohio.'' \40\
---------------------------------------------------------------------------
    \40\ 1995 House Judiciary Hearings, supra n. 35 (statement of Bruce 
Fein at 1-2).
---------------------------------------------------------------------------

       V. THIS AMENDMENT IS THE WRONG WAY TO HONOR OUR VETERANS:

    It is a mistake to argue that this amendment honors the 
courage and sacrifice of our veterans. While we condemn those 
who would dishonor our nation's flag, we believe that rather 
than protecting the flag, H.J. Res. 4 will merely serve to 
dishonor the Constitution and to betray the very ideals for 
which so many veterans fought, and for which so many members of 
our armed forces made the ultimate sacrifice. General Colin L. 
Powell echoed this sentiment:

        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.\41\
---------------------------------------------------------------------------
    \41\ Letter from General Colin L. Powell to Hon. Patrick Leahy, May 
18, 1999.

    Jim Warner, a Vietnam veteran and prisoner of the North 
---------------------------------------------------------------------------
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.\42\
---------------------------------------------------------------------------
    \42\ See 1997 House Judiciary Hearings, supra. n 31 (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).

    There are many ways Congress can honor veterans. First and 
foremost, we can insure that programs designed to protect them 
and provide them with much needed assistance are properly 
funded. Yet the conference agreement on the 2004 Budget 
Resolution, recently adopted, short-changes our veterans in 
vital areas such as health care.
    The conference agreement increases funding for appropriated 
veterans programs for 2004 by $2.6 billion above the amount 
needed to maintain purchasing power at the 2003 level, but cuts 
appropriations for veterans health care by a total of $6.2 
billion below that level over 10 years. The conference 
agreement does not include the reconciliation instructions to 
reduce spending for mandatory veterans benefits by $14.6 
billion over 10 years that were contained in the House 
Republican budget. The House rejected these cuts in the motion 
to instruct conferees offered by Rep. Spratt, which was adopted 
by a vote of 399-22 on April 1, 2003. Ultimately, the 
conference agreement provides $22.1 billion more in budget 
authority for veterans programs than the House Republican 
budget.
    The 10-year cut to appropriated veterans programs is likely 
to be even worse than it appears, and the apparent $2.6 billion 
increase for veterans programs for 2004 is likely to be smaller 
than it at first appears, because the Republican conference 
agreement includes an additional 10-year unspecified cut of 
$128 billion, with $7.6 billion in additional unspecified cuts 
for 2004 alone. The Appropriations Committee may apply some or 
all of this additional cut to discretionary veterans programs.
    The conference agreement assumes the implementation of 
proposals included in the President's budget to impose a $250 
enrollment fee on priority level 7 and 8 veterans who wish to 
maintain their eligibility to use the veterans medical care 
system, and to increase co-payments for primary care visits and 
prescription drugs for priority level 7 and 8 veterans.

                            VI. CONCLUSION:

    Adoption of H.J. Res. 4 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.\43\
---------------------------------------------------------------------------
    \43\ 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.\44\
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    \44\ 319 U.S. at 641.

    If we adopt H.J. Res. 4, we will be denigrating the vision 
of Madison and Jefferson. 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 and 
no flag burner has been able to do--limit the freedom of 
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expression of the American people.

                                   John Conyers, Jr.
                                   Howard L. Berman.
                                   Rick Boucher.
                                   Jerrold Nadler.
                                   Robert C. Scott.
                                   Melvin L. Watt.
                                   Zoe Lofgren.
                                   Sheila Jackson Lee.
                                   Maxine Waters.
                                   Tammy Baldwin.
                                   Linda T. Sanchez.

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