[House Report 108-131]
[From the U.S. Government Publishing Office]
108th Congress Report
HOUSE OF REPRESENTATIVES
1st Session 108-131
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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.
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\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.
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\16\ 496 U.S. 310 (1990).
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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\
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\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.
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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.
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\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).
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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.
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\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\
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\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.
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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\
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\29\ Id. at 381.
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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).
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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:
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\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
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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\
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\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\
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\36\ Halter v. Nebraska, 205 U.S. 34, 41-42 (1907).
\37\ Johnson, 491 U.S. at 438-439 (Stevens, J., dissenting).
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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
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Ayes Nays Present
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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\
---------------------------------------------------------------------------
\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).
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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\
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\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. .
. .''
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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.
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\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.
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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.''
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\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)).
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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\
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\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).
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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.
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\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).
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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\
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\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.
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While we deplore the burning of an American flag in hatred,
we recognize that it is our allowance of this conduct that
reinforces the strength of the Constitution. As one Federal
court wrote in a 1974 flag burning case, ``[T]he flag and that
which it symbolizes is dear to us, but not so cherished as
those high moral, legal, and ethical precepts which our
Constitution teaches.'' \27\
---------------------------------------------------------------------------
\27\ U.S. ex rel Radich v. Criminal Court of N.Y., 385 F. Supp.
165, 184 (1974).
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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\
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\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\
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\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\
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\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\
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\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).
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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).
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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).
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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\
---------------------------------------------------------------------------
\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
---------------------------------------------------------------------------
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.