    [House Report 109-131]
    [From the U.S. Government Publishing Office]

    109th Congress                                                   Report
                            HOUSE OF REPRESENTATIVES
     1st Session                                                    109-131

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

        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

                                    _______

     June 14, 2005.--Committed to the Committee of the Whole House on the
                  State of the Union and ordered to be printed

                                    _______

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

                                  R E P O R T

                                 together with

                        ADDITIONAL AND DISSENTING VIEWS

                          [To accompany H.J. Res. 10]

          [Including cost estimate of the Congressional Budget Office]

      The Committee on the Judiciary, to whom was referred the
    joint resolution (H.J. Res. 10) 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, report favorably thereon
    without amendment and recommend that the joint resolution do
    pass.

                                    CONTENTS

                                                                       Page
    Purpose and Summary..............................................     2
    Background and Need for the Legislation..........................     2
    Hearings.........................................................     7
    Committee Consideration..........................................     7
    Vote of the Committee............................................     7
    Committee Oversight Findings.....................................     9
    New Budget Authority and Tax Expenditures........................     9
    Congressional Budget Office Cost Estimate........................     9
    Performance Goals and Objectives.................................    10
    Constitutional Authority Statement...............................    10
    Section-by-Section Analysis and Discussion.......................    11
    Changes in Existing Law Made by the Bill, as Reported............    12
    Markup Transcript................................................    12
    Additional Views.................................................   100
    Dissenting Views.................................................   103

                              Purpose and Summary

        House Joint Resolution 10 proposes to amend the
    Constitution of the United States to empower Congress to
    prohibit the physical desecration of the American flag. The
    proposed resolution 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. 10 gives Congress the authority to legislate
    in this area and sets the boundaries by which Congress can
    enact legislation, if it so chooses, to prohibit such conduct.
    Congress and the States exercised such power in the past until
    the United States Supreme Court issued a 5-4 decision in Texas
    v. Johnson \1\ in 1989, holding that flag burning is expressive
    conduct that is protected by the First Amendment. Prior to the
    Johnson ruling, 48 states and the Federal Government had
    outlawed such conduct. Today, all 50 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. 10 will empower
    Congress to prohibit the physical desecration of the American
    flag.
    ---------------------------------------------------------------------------
        \1\ 491 U.S. 397 (1989).
        \2\ See Public Opinion Poll by Market Strategies, Inc. (Mar. 13,
    2002) at http://www.cfa-inc.org/issues/poll2.htm (finding seventy-five
    percent of Americans support such an amendment).
    ---------------------------------------------------------------------------

                    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.
    It serves a unique role as the symbol of our country's values
    and the embodiment of the rights guaranteed to all Americans
    under the Constitution. It has led the way into battle, has
    been planted on the moon, and has draped the coffins of
    Americans who have sacrificed their lives for our country. The
    flag was raised by rescue workers at the World Trade Center and
    unfurled on the Pentagon following the tragic attacks of
    September 11, 2001. The United States flag is more than just a
    piece of cloth--it is a uniquely unifying symbol that
    epitomizes this great Nation and all for which it stands.
    Despite this, since 1994, over 119 incidents involving flag
    desecration were reported in the States, the District of
    Columbia, and Puerto Rico.
        The movement to pass 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.\3\ In 1968, the Federal Government passed its statute
    prohibiting such conduct.\4\ By 1989, every State in the Union
    except Alaska and Wyoming outlawed such conduct. However, on
    June 21, 1989, the United States Supreme Court proscribed these
    laws in Texas v. Johnson,\5\ holding in a 5-4 decision that the
    burning of an American flag as part of a political
    demonstration was expressive conduct protected by the First
    Amendment to the United States Constitution.
    ---------------------------------------------------------------------------
        \3\ Desecrating the American Flag: Key Documents of the Controversy
    From the Civil War to 1995 at xix (Robert Justin Goldstein ed., 1996).
        \4\ Pub. L. No. 90-381, 82 Stat. 291 (codified as amended at 18
    U.S.C. Sec. 700 (2003)).
        \5\ 491 U.S. 397 (1989).
    ---------------------------------------------------------------------------
        In Johnson, 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.'' \6\ 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.
    ---------------------------------------------------------------------------
        \6\ Tex. Penal Code Ann. Sec. 42.09 (1989), ``Desecration of
    Venerated Object,'' provided as follows:

        G(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.

        G(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.

        G(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.\7\ Chief Justice Rehnquist
    noted the unique history of the American flag:
    ---------------------------------------------------------------------------
        \7\ 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.\8\
    ---------------------------------------------------------------------------
        \8\ Johnson, 491 U.S. at 429.

    Chief Justice 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.\9\
    ---------------------------------------------------------------------------
        \9\ In Street v. New York, 394 U.S. 576 (1969), these three
    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 in discussing New York's flag burning statute, ``It passes
    my belief that anything in the Federal Constitution bars a State from
    making the deliberate burning of the American flag an offense.'' Id. at
    610 (Black, J., dissenting). 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
    615-17 (Fortas, J., dissenting).
    ---------------------------------------------------------------------------
        In response to the Johnson decision, Congress approved the
    ``Flag Protection Act of 1989'' \10\ in September 1989 by a
    vote of a 371-43 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.'' \11\
    ---------------------------------------------------------------------------
        \10\ Pub. L. No. 101-131, 103 Stat. 777.
        \11\ ``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.
    ---------------------------------------------------------------------------
        On June 11, 1990, in United States v. Eichman,\12\ 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 Federal 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
    Federal 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.
    ---------------------------------------------------------------------------
        \12\ 496 U.S. 310 (1990).
    ---------------------------------------------------------------------------
        Justice Brennan, writing for the majority, rejected the
    Federal 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.\13\
    ---------------------------------------------------------------------------
        \13\ Id. at 315-16.

        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.''\14\ He went on, however, to note
    that methods of expression may be prohibited under a number of
    circumstances and set forth the following standard:
    ---------------------------------------------------------------------------
        \14\ Id. at 319.

            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.\15\
    ---------------------------------------------------------------------------
        \15\ 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 sufficient to correct the problem of
    flag desecration. Therefore, the only avenue remaining by which
    Congress can successfully defend 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.\16\ While there have been over
    11,000 constitutional amendments proposed since the
    ratification of the Bill of Rights, there have been only 17
    amendments actually approved and ratified to be included in the
    Constitution.\17\ It is this process that is absolutely vital
    to maintaining the democratic legitimacy of the Constitution
    and of judicial review itself.
    ---------------------------------------------------------------------------
        \16\ See U.S. Const. art. V.
        \17\ See Flag Protection Amendment: Hearing Before the Subcomm. on
    the Constitution of the House Comm. on the Judiciary, 108th Cong.
    (statement of Professor Richard D. Parker, Harvard Law School).
    ---------------------------------------------------------------------------
        H.J. Res. 10 will effectuate the will of an overwhelming
    majority of the American public in a manner pursuant to the
    mechanisms of Article V of the Constitution and provide
    Congress with the power to prohibit the physical desecration of
    the flag. H.J. Res. 10 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.\18\
    ---------------------------------------------------------------------------
        \18\ Eichman, 496 U.S. at 322.

        Alternative means of expressing ideas are available to
    political protestors who would have otherwise desecrated a flag
    in order to express their message. Implementing legislation
    adopted pursuant to a flag protection amendment prohibiting the
    physical desecration of the flag 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.\19\ Such was the
    status quo in 48 states prior to the Johnson ruling in 1989.
    During this long period when flag desecration statutes were in
    effect, wide open debate flourished, as it has throughout
    America's history.
    ---------------------------------------------------------------------------
        \19\ Johnson, 491 U.S. at 432 (Rehnquist, C.J., dissenting).
    ---------------------------------------------------------------------------
        The dissenting opinions in Johnson and Eichman collectively
    provide an instructive analysis of why Congressional action
    prohibiting flag desecration serves a legitimate interest. For
    example, Justice Stevens' dissent in Johnson extolled the
    significant and legitimate interest in preserving the flag:

            [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.\20\
    ---------------------------------------------------------------------------
        \20\ 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.'' \21\ 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.\22\
    ---------------------------------------------------------------------------
        \21\ Halter v. Nebraska, 205 U.S. 34, 41-42 (1907).
        \22\ Johnson, 491 U.S. at 438-39 (Stevens, J., dissenting).
    ---------------------------------------------------------------------------
        In Eichman, Justice Stevens, joined by Chief Justice
    Rehnquist, Justice White, and Justice O'Connor, began his
    dissent by noting the axiomatic First Amendment principle that
    ``the Government may not prohibit the expression of an idea
    simply because society finds the idea itself offensive or
    disagreeable.'' \23\ However, Justice Stevens concluded 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.'' \24\
    ---------------------------------------------------------------------------
        \23\ Eichman, 496 U.S. at 319.
        \24\ Id.
    ---------------------------------------------------------------------------
        H.J. Res. 10 would empower Congress to prohibit the
    physical desecration of the United States flag. The
    constitutional amendment itself does not prohibit flag
    desecration. Rather, it empowers Congress to enact legislation
    to prohibit the physical desecration of the American flag and
    establishes boundaries within which Congress may legislate to
    prosecute this conduct. Work on a statute will come at a later
    date, after three-fourths of the States ratify the amendment.
        Though a proposed flag protection amendment failed to
    garner a two-thirds majority in the House in the 101st
    Congress, a flag protection amendment has passed the House in
    every Congress since the 104th. In the 105th, 106th, 107th, and
    108th Congresses, language identical to H.J. Res. 10 passed the
    House by a two-thirds majority. In addition, all 50 States have
    passed resolutions calling on Congress to pass a flag
    protection amendment and send it to the States for
    ratification,\25\ and dozens of surveys since 1989 evidence
    that 75--80 percent of Americans have consistently supported
    amending the Constitution to protect the flag.\26\
    ---------------------------------------------------------------------------
        \25\ See, http://www.cfa-inc.org/about/flag amendl.htm.
        \26\ See, e.g., Public Opinion Poll by Market Strategies, Inc.
    (Mar. 13, 2002) at http://www.cfa-inc.org/issues/poll2.htm (finding
    seventy-five percent of Americans support such an amendment).
    ---------------------------------------------------------------------------

                                    Hearings

        The Committee on the Judiciary held no hearings on H.J.
    Res. 10 during the 109th Congress. However, hearings were held
    on identical language proposed in the 105th, 106th, and 108th
    Congresses.\27\ Five hearings were also held on statutory and
    constitutional responses to the Supreme Court decision in Texas
    v. Johnson and the need for a flag protection amendment in the
    101st and 104th Congresses.\28\
    ---------------------------------------------------------------------------
        \27\ H.J. Res. 54: Proposing an Amendment to the Constitution of
    the United States Authorizing Congress to Prohibit the Physical
    Desecration of the Flag of the United States: Hearing on H.J. Res. 54
    Before the Subcomm. on the Constitution, House Comm. on the Judiciary,
    105th Cong. (Apr. 30, 1997); Prohibit the Physical Desecration of the
    Flag of the United States: Hearing on H.J. Res. 33 Before the Subcomm.
    on the Constitution, House Comm. on the Judiciary, 106th Cong. (Mar.
    23, 1999); Flag Protection Amendment: Hearing on H.J. Res. 4 Before the
    Subcomm. on the Constitution, House Comm. on the Judiciary, 108th Cong.
    (May 7, 2003).
        \28\ Statutory and Constitutional Responses to the Supreme Court
    decision in Texas v. Johnson: Hearings Before the Subcomm. on Civil and
    Constitutional Rights, House Comm. on the Judiciary, 101st Cong. (July
    13, 18, 19, and 20, 1989); Hearing on Flag Desecration Before the
    Subcomm. on the Constitution, House Comm. on the Judiciary, 104th Cong.
    (May 24, 1995).
    ---------------------------------------------------------------------------

                            Committee Consideration

        On May 25, 2005, the Committee met in open session and
    ordered favorably reported the joint resolution, H.J. Res. 10,
    without an amendment by a recorded vote of 17 yeas to 9 nays, 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. 10.
        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 rollcall vote of 11 ayes to 19
    nays.

                                                       ROLLCALL NO. 1
    ----------------------------------------------------------------------------------------------------------------
                                                                           Ayes            Nays           Present
    ----------------------------------------------------------------------------------------------------------------
    Mr. Hyde........................................................
    Mr. Coble.......................................................                              X
    Mr. Smith (Texas)...............................................                              X
    Mr. Gallegly....................................................                              X
    Mr. Goodlatte...................................................
    Mr. Chabot......................................................                              X
    Mr. Lungren.....................................................                              X
    Mr. Jenkins.....................................................                              X
    Mr. Cannon......................................................                              X
    Mr. Bachus......................................................
    Mr. Inglis......................................................                              X
    Mr. Hostettler..................................................                              X
    Mr. Green.......................................................                              X
    Mr. Keller......................................................                              X
    Mr. Issa........................................................                              X
    Mr. Flake.......................................................                              X
    Mr. Pence.......................................................
    Mr. Forbes......................................................                              X
    Mr. King........................................................                              X
    Mr. Feeney......................................................                              X
    Mr. Franks......................................................                              X
    Mr. Gohmert.....................................................                              X
    Mr. Conyers.....................................................              X
    Mr. Berman......................................................
    Mr. Boucher.....................................................
    Mr. Nadler......................................................              X
    Mr. Scott.......................................................              X
    Mr. Watt........................................................              X
    Ms. Lofgren.....................................................              X
    Ms. Jackson Lee.................................................              X
    Ms. Waters......................................................
    Mr. Meehan......................................................              X
    Mr. Delahunt....................................................
    Mr. Wexler......................................................
    Mr. Weiner......................................................              X
    Mr. Schiff......................................................              X
    Ms. Sanchez.....................................................              X
    Mr. Smith (Washington)..........................................
    Mr. Van Hollen..................................................              X
    Mr. Sensenbrenner, Chairman.....................................                              X
                                                                     -----------------------------------------------
        Total.......................................................             11              19
    ----------------------------------------------------------------------------------------------------------------

        2. Final Passage. The motion to report favorably the joint
    resolution, H.J. Res. 10, was agreed to by a rollcall vote of
    17 yeas to 9 nays.

                                                       ROLLCALL NO. 2
    ----------------------------------------------------------------------------------------------------------------
                                                                           Ayes            Nays           Present
    ----------------------------------------------------------------------------------------------------------------
    Mr. Hyde........................................................
    Mr. Coble.......................................................              X
    Mr. Smith (Texas)...............................................              X
    Mr. Gallegly....................................................              X
    Mr. Goodlatte...................................................              X
    Mr. Chabot......................................................              X
    Mr. Lungren.....................................................              X
    Mr. Jenkins.....................................................              X
    Mr. Cannon......................................................              X
    Mr. Bachus......................................................              X
    Mr. Inglis......................................................              X
    Mr. Hostettler..................................................
    Mr. Green.......................................................              X
    Mr. Keller......................................................              X
    Mr. Issa........................................................              X
    Mr. Flake.......................................................
    Mr. Pence.......................................................
    Mr. Forbes......................................................
    Mr. King........................................................              X
    Mr. Feeney......................................................
    Mr. Franks......................................................              X
    Mr. Gohmert.....................................................              X
    Mr. Conyers.....................................................                              X
    Mr. Berman......................................................
    Mr. Boucher.....................................................
    Mr. Nadler......................................................                              X
    Mr. Scott.......................................................                              X
    Mr. Watt........................................................
    Ms. Lofgren.....................................................                              X
    Ms. Jackson Lee.................................................                              X
    Ms. Waters......................................................
    Mr. Meehan......................................................
    Mr. Delahunt....................................................
    Mr. Wexler......................................................
    Mr. Weiner......................................................                              X
    Mr. Schiff......................................................                              X
    Ms. Sanchez.....................................................                              X
    Mr. Smith (Washington)..........................................
    Mr. Van Hollen..................................................                              X
    Mr. Sensenbrenner, Chairman.....................................              X
                                                                     -----------------------------------------------
        Total.......................................................             17               9
    ----------------------------------------------------------------------------------------------------------------

                          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. 10, 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 31, 2005.
    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. 10, 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), and Melissa Merrell (for the
    State and local impact).
                Sincerely,
                                           Douglas Holtz-Eakin.

    Enclosure.
    H.J. Res. 10--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. 10 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 estimates that
    any resulting costs would not be significant. H.J. Res. 10
    would not affect direct spending or revenues.
        H.J. Res. 10 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. For the amendment to become part of the
    Constitution, three-fourths of the State legislatures would
    have to ratify the resolution, but 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), and Melissa Merrell (for the State and
    local impact). This estimate was approved by Robert A.
    Sunshine, Assistant Director for Budget Analysis.

                        Performance Goals and Objectives

        The Committee states that pursuant to clause 3(c)(4) of
    rule XIII of the Rules of the House of Representatives, H.J.
    Res. 10 would amend the Constitution to provide that Congress
    has the power to prohibit the physical desecration of the flag.

                       Constitutional Authority Statement

        Pursuant to clause 3(d)(1) of rule XIII of the Rules of the
    House of Representatives, the Committee finds the authority for
    this legislation in article V of the Constitution.

                   Section-by-Section Analysis and Discussion

        The following discussion describes the bill as reported by
    the Committee. H.J. Res. 10 states: ``The Congress shall have
    power to prohibit the physical desecration of the flag of the
    Unites States.'' 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 to prohibit the physical
    desecration of the flag. In light of the Supreme Court's
    interpretation, a constitutional amendment is the only
    alternative for proscribing the physical desecration of the
    flag. H.J. Res. 10 would empower Congress to pass legislation
    to prohibit the physical desecration of the flag of the United
    States.
        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 can decide whether to enact legislation prohibiting the
    physical desecration of the flag. Two key issues will need to
    be considered in enacting legislation to protect the flag from
    physical desecration. First, Congress must consider the meaning
    of ``physical desecration.'' The amendment itself requires
    physical contact with the flag. Under this amendment, Congress
    could not punish mere words or gestures directed at the flag,
    regardless of how offensive they were. Webster's Ninth New
    Collegiate Dictionary defines ``desecrate'' as follows: ``1: to
    violate the sanctity of: PROFANE 2: to treat irreverently or
    contemptuously often in a way that provokes outrage on the part
    of others.'' Black's Law Dictionary defines ``desecrate'' as
    ``[t]o divest (a thing) of its sacred character; to defile or
    profane (a sacred thing)'' and ``flag desecration'' as ``the
    act of mutilating, defacing, burning, or flagrantly misusing a
    flag.'' Congress, under this constitutional amendment, 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,'' are necessary 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. 10.
        Second, Congress will have to decide what representations
    of the flag of the United States are to be protected. As
    defined in the United States Code, ``[t]he flag of the United
    States shall be thirteen horizontal stripes, alternate red and
    white; and the union of the flag shall be forty-eight stars,
    white in a blue field.'' \29\ The resolution does not affect
    this definition. In enacting a statute, Congress will need to
    decide which representations of the flag are to be protected
    from physical desecration. For instance, 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. These details
    will be dealt with in implementing legislation subsequent to
    the adoption and ratification of H.J. Res. 10.
    ---------------------------------------------------------------------------
        \29\ 4 U.S.C. Sec. 1. ``On the admission of a new State into the
    Union one star shall be added to the union of the flag; and such
    addition shall take effect on the fourth day of July then next
    succeeding such admission.'' 4 U.S.C. Sec. 2.
    ---------------------------------------------------------------------------

             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. 10
    makes no changes to existing statutes.

                               Markup Transcript

                                BUSINESS MEETING

                            WEDNESDAY, MAY 25, 2005

                      House of Representatives,
                                    Committee on the Judiciary,
                                                        Washington, DC.
        The Committee met, pursuant to notice, at 10:02 a.m., in
    Room 2138, Rayburn House Office Building, Hon. F. James
    Sensenbrenner, Jr. [Chairman of the Committee] presiding.
        Chairman Sensenbrenner. The Committee will come to order. A
    working quorum is present.
        [Intervening business.]
        Chairman Sensenbrenner. Pursuant to notice, I now call up
    H.J. Res. 10 proposing an amendment to the Constitution
    authorizing Congress to prohibit the physical desecration of
    the flag of the United States for purposes of markup and move
    its favorable recommendation to the House. Without objection,
    the joint resolution will be considered as read and open for
    amendment at any point.
        [The resolution, H.J. Res. 10, follows:]

        Chairman Sensenbrenner. The chair recognizes the gentleman
    from Ohio, Mr. Chabot, the Chairman of the Subcommittee on the
    Constitution, for 5 minutes to explain the joint resolution.
        Mr. Chabot. Thank you, Mr. Chairman.
        The flag of the United States is the most recognized and
    sacred symbol of freedom and democracy in the world. Whether in
    war atop the United States Capitol or sewn to the sleeves of
    our brave men and women sent into battle, the flag represents
    the values that all Americans hold dear. In the midst of the
    rubble and debris at Ground Zero, where the World Trade Center
    towers once stood, three New York City firefighters raised the
    flag to the top of the pole. The photographer who captured this
    shot said, ``This was an important shot. It told of more than
    just death and destruction, it said something to me about the
    strength of the American people and of these firemen having to
    battle the unimaginable. It had drama, spirit, and courage in
    the face of disaster.''
        It is this symbolism and resilience that has made the flag
    the most beloved and cherished symbol in our Nation's history.
    Despite this, 119 incidents of flag desecration have been
    reported since 1994. The movement to pass legislation
    prohibiting the desecration of the American flag began in the
    late 1800's, with every State having a flag desecration law on
    the books by 1932. In 1968, the Federal Government passed its
    statute prohibiting such conduct. By 1989, every State in the
    Union except Alaska and Wyoming outlawed such conduct.
        However, in 1989, the United States Supreme Court, by the
    narrowest of margins, effectively invalidated all State and
    Federal laws that prohibited flag desecration. In a 5-4
    opinion, the Court concluded that the burning of the American
    flag as part of a political demonstration was expressive
    conduct protected by the first amendment. Congress responded to
    the Supreme Court's decision almost instantaneously through
    bipartisan and overwhelming support, enacting the Flag
    Protection Act of 1989, which passed the House by a vote of 371
    to 43 and the Senate by a vote of 91 to 9. However, in a 5-4
    opinion the following year, the Supreme Court held the Flag
    Protection Act unconstitutional in United States v. Eichman.
    Because of these narrowly decided Supreme Court decisions, a
    constitutional amendment provides the only remaining option for
    the American public to restore protection to our Nation's most
    visible symbol. The Flag Protection Amendment would restore the
    authority of Congress to prohibit the physical desecration of
    the flag.
        Some would argue that this proposed amendment would erode
    the first amendment protections that all Americans enjoy. I
    disagree with this assertion as do the majority of Americans.
    The Flag Protection Amendment is consistent with the first
    amendment while maintaining the flag as a national symbol and
    giving it the protection it deserves. The first amendment does
    not grant individuals unlimited rights to engage in any form of
    desired conduct under the cloak of free expression. For
    instance, burning a $10 bill and pushing over a tombstone are
    actions which can be utilized to express a particular political
    or social message, but are unquestionably illegal. In addition,
    the amendment proposed today does not contain any language that
    will prevent individuals from speaking out against the United
    States, its policies, its people, its flag, or anything that
    these things represent.
        This amendment simply prohibits acts of physical
    desecration of the Nation's most enduring and revered symbol,
    nothing more. The House of Representatives has passed the Flag
    Protection Amendment by more than the two-thirds majority vote
    needed in five separate Congresses; in four of these Congresses
    language identical to H.J. Res. 10 that we are considering
    today passed the House.
        Though a flag protection amendment received majority
    support in the Senate on two separate occasions, it failed both
    times to garner the two-thirds majority by four votes.
        All 50 States have passed resolutions calling on Congress
    to pass and send a flag protection amendment to the States for
    ratification, and 75 to 80 percent of Americans have
    consistently supported amending the Constitution to protect the
    flag.
        Such overwhelming support by the American people sends a
    clear message to Congress that we must adhere to the wishes of
    the people and adopt this proposed amendment to the
    Constitution.
        I yield back the balance of my time.
        Mr. Conyers. Mr. Chairman?
        Chairman Sensenbrenner. The gentleman from Michigan, Mr.
    Conyers.
        Mr. Conyers. Mr. Chairman, I rise in opposition to this
    measure before us. Because it's always tempting for Congress to
    show the Supreme Court in particular who's boss, and it has
    attempted to do so since 1989. We have two Supreme Court cases
    on this very same point. It was a concern about the tyranny of
    the majority that led the framers of the Constitution to create
    an independent judiciary free of political pressure to ensure
    the Legislative and Executive branches would honor the Bill of
    Rights. A constitutional amendment banning flag desecration
    really flies in the face of this very carefully balanced
    structure.
        Now, the consideration of this measure today will show
    whether the Members of this Committee, the Judiciary Committee,
    have the strength to remain true to our forefathers'
    constitutional ideals and defend our citizens' right to express
    themselves even when we vehemently disagree with their method
    of expression. I deplore the desecration of the flag in any
    form. But I strongly oppose this resolution because it goes
    against the very ideals on which the country has been founded.
        If we allow H.J. Res. 10 to go to the floor and be adopted,
    this will be the first time in the history of this country that
    the people's representatives voted to alter the Bill of Rights
    to limit freedom of speech. It's been said that the true test
    of any Nation's commitment to freedom of expression lies in its
    ability to protect unpopular expression, and that is the basis
    of my objection to this measure before us.
        As Oliver Wendell Holmes said, ``the Constitution protects
    not only freedom for the thought and expression we agree with,
    but freedom for the thought that we hate.'' And so by limiting
    the scope of the first amendment's free speech protections, I
    see us setting a most dangerous precedent. If we open the door
    to criminalizing constitutionally protected expression related
    to the flag, I predict it will be difficult to limit further
    efforts to censure speech. And once we decide to limit freedom
    of speech, limitations on freedom of the press and freedom of
    religion, I fear, may not be far behind.
        So join with me in rejecting H.J. Res. 10.
        And I would return any time not used, Mr. Chairman.
        Chairman Sensenbrenner. Without objection, all Members'
    opening statements will be included in the record at this
    point.
        Are there amendments?
        Mr. Nadler. Mr. Chairman?
        Chairman Sensenbrenner. The gentleman from New York.
        Mr. Nadler. I move to strike the last word.
        Chairman Sensenbrenner. The gentleman is recognized for 5
    minutes.
        Mr. Nadler. Thank you, Mr. Chairman.
        Today we endure the 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 4. 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 our 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
    and super-patriots who value the symbol more than they value
    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 is the burning of
    the flag.
        I am certain that we will hear speeches and probably 30-
    second attack ads invoking the sacrifice of our troops in the
    field, invoking the destruction of the World Trade Center as a
    pretext for carving up the protection of free speech embodied
    in the first amendment and in the decisions of the United
    States Supreme Court. That is a shameful exploitation of the
    patriotism and courage of those fine and courageous people who
    died in the service of our country. It is the civic equivalent
    of taking the Lord's name in vain.
        You want to honor the sacrifice of our troops? Protect the
    rights they fight for. Protect the rights of veterans. Don't
    let the Administration send our troops into harm's way without
    body armor or Humvee armor or the equipment they need to
    survive. Playing games with the Constitution does not honor
    them.
        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 aimed at
    persecuting 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 of burning the flag if
    it is done to express political dissent. The same act would be
    a crime under this amendment if done for purposes of saying I
    disagree with whatever-I-disagree-with, as opposed to for some
    other reason. The same act. So what's really being criminalized
    is not the act, but the expression of the idea. That's why the
    Supreme Court found it unconstitutional.
        Current Federal law, which is constitutionally void, makes
    it a misdemeanor to use the flag for advertising or on
    packaging. How many Members of Congress, used car dealers,
    attendees at the Republican National Convention the last few
    times, fast food restaurants and other seemingly legitimate
    individuals and enterprises have engaged in this act, have used
    the flag for advertising or on packaging, have put them on
    slippers and clothes--an 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.
        As if this assault on the Bill of Rights is not enough,
    this Committee didn't even bother holding----
        And let me say one other thing. We all see many times
    movies. In these movies we see actors dressed up as Nazi
    soldiers burning or trampling the flag. Do we arrest the
    actors? No, we don't' arrest the actors because we don't care
    about the act of burning the flag because we know they're not
    burning the flag to express a sentiment of dissent. They're
    burning the flag as play-acting. So it's the idea behind the
    burning of the flag that we seek to criminalize here. We're not
    going to arrest the actors because we don't care about the
    ideas they're expressing. And ideas are protected and ought to
    remain protected by the first amendment.
        As if this assault on the Bill of Rights is not enough,
    this Committee didn't even bother holding a hearing on this
    constitutional amendment. The Subcommittee on the Constitution
    did not bother to hold a markup or to vote on it. This cavalier
    attitude toward the Bill of Rights is offensive and revealing:
    Why discuss it? Why look into it? It's only the Constitution.
    We're only talking about the rights of a few malcontents for
    whom even opponents of this amendment, many, have contempt. So
    who cares?
        But we ought to care. This is our freedom of speech that is
    under assault here. People have died for this Nation and for
    the rights which this flag so proudly represents. Let us not do
    anything to diminish the freedoms, to diminish the way of life
    for which they made the ultimate sacrifice. That's what this
    constitutional amendment does--it limits the expression of
    ideas in the guise of flag desecration.
        And to protect against what threat? How many--do we see an
    epidemic of flag desecrations? When was the last time we saw
    someone burn a flag? Maybe during the Vietnam War. Maybe once
    or twice in 1991 or a couple of years ago. What are we doing
    here? We have no huge threat to protect against, but we do
    threaten our free speech and the Bill of Rights. That's not
    what makes sense. I urge us not to pass this bill, and I thank
    you.
        Chairman Sensenbrenner. Are there amendments?
        The gentleman from Virginia, Mr. Scott?
        Mr. Scott. Mr. Chairman, I have an amendment at the desk.
        Chairman Sensenbrenner. The clerk will report the
    amendment.
        The Clerk. Amendment to H.J. Res. 10, offered by Mr. Scott.
    Page 2, line 9, strike ``desecration'' and insert ``burning.''
        [The amendment of Mr. Scott follows:]

        Chairman Sensenbrenner. The gentleman from Virginia is
    recognized for 5 minutes.
        Mr. Scott. Mr. Chairman, my amendment would change the
    constitutional amendment to prohibit all flag burning. If we're
    going to mark up this bill without any hearings or Subcommittee
    deliberation, we should at least acknowledge the whole purpose
    of the underlying constitutional amendment is to stifle
    political expression that we find offensive. While I personally
    agree that we should respect the flag, I do not think it's
    appropriate to use the criminal code to enforce our views on
    those who disagree with us.
        The Supreme Court has considered the restrictions on the
    Bill of Rights that are permissible by the Government. For
    example, under the first amendment, with respect to speech,
    time, place, and manner may generally be regulated while
    content may not. There are, of course, exceptions. Speech that
    creates an imminent threat of violence or threatens safety or
    patently offensive expressions with no redeeming social value,
    those may be restricted. But generally you cannot restrict
    content. The distinction is that you can restrict time, place,
    and manner, but not content.
        So you can restrict the time, place, and manner of a
    protest or demonstration, what time it is held, where it's
    held, but you cannot restrict what people are marching or
    demonstrating about. You cannot ban a particular march or
    demonstration just because you disagree with the message,
    unless you decide to ban all marches. You cannot allow marches
    by the Republican Party but not the Democratic Party, and you
    cannot allow pro-war rallies but not anti-war rallies.
        Some have referred 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 you ever see a flag burned is in
    compliance with the Federal Code at flag ceremonies disposing
    of a worn-out flag. Ask any Boy Scout or member of the American
    Legion how to dispose of a worn-out flag and they'll tell you
    that you burn the flag at a respectful ceremony.
        This proposed constitutional amendment is all about
    expression and all about prohibiting expression in violation of
    the spirit of the first amendment. By using the word
    ``desecration,'' we are giving the Government officials power
    to decide that one can burn the flag if you're saying something
    nice and respectful, but you are a criminal if you burn the
    flag while saying something that insults the local sheriff.
    This is an absurd distinction and is in direct contravention
    with the whole purpose of the first amendment.
        Mr. Chairman, in addition to the violation of the spirit of
    the Bill of Rights, this amendment has practical problems, too.
    For example, what is a flag; can you desecrate a picture of the
    flag; can a flag with the wrong number of stripes or stars be
    desecrated? During the Vietnam War laws were passed prohibiting
    draft cards from being burned and protestors, with great
    flourish, would say that they're burning a draft card, and
    offend everybody, but then nobody would know whether it was
    actually a draft card or just a piece of paper. And what
    happens if you desecrate your own flag in private? Are you
    subject to the criminal prosecution if somebody finds out?
        And Mr. Chairman, I feel compelled to comment on the
    suggestions that stealing and destroying somebody's personal
    property is protected if the personal property happens to be a
    flag. The law is clear. It is theft and destruction of personal
    people whether it is a flag or not. And if the burning is done
    in such a manner as to provoke a riot or breach of the peace,
    that would be a crime. Provoking riots and provoking breaches
    of the peace is a crime whether the flag is involved or not.
        This legislation is aimed at criminalizing political
    speech, and we should not politicize speech you disagree with
    just because you have the votes.
        In order to make this amendment consistent with the ideals
    of the first amendment's prohibition against limiting freedom
    of expression, I am proposing that 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 when you're saying something nice while you're
    burning the flag, but would criminalize burning the flag while
    you're saying something bad. If we really intend to ban flag
    burning, then let's ban flag burning, consistent with the
    ideals of the first amendment. What this amendment does is to
    take the content out of it.
        And so, Mr. Chairman, I would ask unanimous consent to
    introduce for the record letters from several veterans groups,
    civil rights groups, legal organizations, as well as several
    individuals opposing this legislation. I ask unanimous consent
    for these letters to be entered into the record.
        Chairman Sensenbrenner. Without objection.
        [The information follows:]

        Mr. Scott. I urge my colleagues to support the amendment.
        I yield back.
        Chairman Sensenbrenner. The gentleman from Ohio, Mr.
    Chabot.
        Mr. Chabot. Move to strike the last word, Mr. Chairman.
        Chairman Sensenbrenner. The gentleman is recognized for 5
    minutes.
        Mr. Chabot. Thank you. I rise in opposition to the
    amendment. I would first note that there has been some
    criticism raised by the other side that we didn't have a
    hearing this Congress. I would note that we had hearings in the
    Subcommittee on the Constitution in the 105th Congress, the
    106th Congress, the 108th Congress, and we had complaints
    during those hearings by Members that were saying here we go
    again, we're having another hearing on this. And had we had a
    hearing on it this time, we would have had that same complaint.
    So one cannot win in this particular instance.
        Mr. Nadler. Would the gentleman yield?
        Mr. Chabot. I'd be happy to yield.
        Mr. Nadler. It is true. You would have that complaint. We'd
    say it's unnecessary because it's an unnecessary and silly
    bill, but we still--but as little as I like to waste my time on
    such hearings, the fact is on a matter of such import we should
    have hearings.
        Mr. Chabot. Reclaiming my time. But, you know, you're
    damned if you do and you're damned if you don't. So we didn't
    this time, and got the criticism. And we appreciate the
    gentlemen's criticism, but I think they're inaccurate in their
    arguments.
        Now, relative to this particular amendment and why it
    should be rejected, it should be rejected because, while
    prohibiting flag burning, the proposed amendment would still
    allow other types of defilement and defacement of the American
    flag. The word ``desecration'' was selected in order to assure
    that the flag would be protected from physical acts other than
    just burning. Black's Law Dictionary defines ``flag
    desecration'' as ``the act of mutilating, defacing, burning, or
    flagrantly misusing a flag;'' and ``desecrate'' as to ``divest
    a thing of its sacred character; to defile or profane a sacred
    thing.'' And I would argue that our flag is a sacred thing. In
    contrast, ``burning'' means simply ``affecting with or as if
    with heat,'' as defined in the Merriam-Webster Dictionary.
        Limiting the amendment to only the burning of the flag
    rather than desecration would unduly limit the object and
    purpose of this resolution to give Congress the power to
    protect the flag from a range of physical acts of defilement or
    defacement. 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.
        Thus, it's essential that we continue to use broad terms in
    constitutional amendment such as the word ``desecration,'' 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.
        Again, this particular resolution gives us the ability, it
    gives Congress the ability to get more specific in legislation
    later on. Right now, we don't have that right. The Supreme
    Court on two separate occasions has struck that down. They've
    given us no alternative. If you want to protect the flag, then
    you vote for this. If you don't care, then you vote the other
    way.
        Mr. Scott. Will the gentleman yield?
        Mr. Chabot. I'll yield.
        Mr. Scott. I would want to agree with you that the word
    ``desecration'' is a subjective term. But the point of this
    amendment is it takes the content and attitude out of it.
    Because if you burn the flag and say something nice, that would
    not be desecration. But if you burn the flag while you're
    saying something insulting, that would be desecration. The
    point of this amendment is to take the content and attitude out
    of it. And if you're going to criminalize the act, criminalize
    the act--something objective and not depending on whether
    someone is insulted by the speech and message or not.
        Mr. Chabot. Reclaiming my time. I've been to a number of
    these ceremonies. I'm sure that many of the other gentlemen and
    gentleladies have been as well, when they have a helmet and
    they're putting in people that have died during the course of
    that year. There are many instances in which the ceremonies
    occur and it's clear--I mean, we're talking about defacement,
    defilement, desecration, and burning can be one of those
    things. We would get into the details of this later on. We've
    got to get past the other body's vote against this, though.
    We've had the votes here in the House; the problem has been
    over in the other body.
        I yield back the balance of my time.
        Mr. Nadler. Mr. Chairman?
        Chairman Sensenbrenner. The gentleman from New York, Mr.
    Nadler.
        Mr. Nadler. Mr. Chairman, the gentleman from Ohio is quite
    correct. The word ``desecration'' is a broad term. He gave a
    number of definitions, including I think he said, ``profane,''
    ``defame.'' These are terms derived, as is the word
    ``desecration,'' from a religious context. And it's used in
    that context. He also said that ``we're defining it broadly;
    the Constitution defines `due process' broadly,'' et cetera.
    Quite correct. We define rights broadly. No one should be put
    in jail without due process; no one shall be deprived of
    freedom of speech without due process of law, et cetera. We
    define rights broadly.
        We define crimes narrowly, because we don't want to overly
    restrict people's freedoms. One of the problems with this
    amendment--one of the problems--is that what does
    ``desecration'' mean? It means almost anything. And you give
    Congress the power to define it as almost anything. And not
    just physical. Under this amendment, Congress will clearly have
    the power, as you put it a moment ago, ``desecration'' means
    defamation, profanation, blasphemy generally, in religious
    terms. If someone said something not nice about the flag, you
    could make that criminal--without any physical act. There's
    nothing that says ``physical'' in here. You could say that
    anyone who defames the actions of the country might be read to
    be defaming the flag and therefore desecrating the flag. I can
    see a court holding that. I can see some congressmen voting for
    that. And that's one of the problems.
        I would suggest that--and I'm going to offer an amendment
    in a moment, as soon as we draft it, that we add----
        It says ``physical.'' I'm sorry. I withdraw that. Never
    mind what I said about--but ``physical desecration'' still
    means any of the acts which, if done with ideas that people do
    not find objectionable, is not considered desecration. And that
    is the crux of the problem here. Any physical act which you can
    think of doing with a flag you would not criminalize if done
    without objectionable connecting ideas--objectionable to the
    authorities, that is. And that's the basic problem here, and
    that's why it's a gross violation of freedom of speech. That's
    why the Supreme Court struck it down and that's why we
    shouldn't amend the Constitution.
        Chairman Sensenbrenner. Does the gentleman yield back?
        Mr. Nadler. Yes, I yield back.
        Chairman Sensenbrenner. The question is on the amendment.
        Mr. Conyers. Mr. Chairman?
        Chairman Sensenbrenner. The gentleman from Michigan.
        Mr. Conyers. I have a motion at the desk.
        Chairman Sensenbrenner. The clerk will report the motion.
        Mr. Chabot. Mr. Chairman, reserving the right to object.
        Chairman Sensenbrenner. The clerk will report the motion
    first.
        The Clerk. Motion to postpone to a date certain by Mr.
    Conyers: I move that the consideration of H.J. Res. 10 be
    postponed until June 15, 2005.
        Chairman Sensenbrenner. The motion is non-debatable. The
    question is agreeing to the motion. Those in favor will say
    aye. Opposed, no?
        The noes appear to have it.
        Mr. Conyers. May I have a record vote, Mr. Chairman?
        Chairman Sensenbrenner. Record vote is ordered.
        The question is on the motion to postpone to a day certain
    offered by the gentleman from Michigan, Mr. Conyers. Those in
    favor of the motion will, as your names are called,l answer
    aye; those opposed will vote no.
        The clerk will call the roll.
        The Clerk. Mr. Hyde?
        [No response.]
        The Clerk. Mr. Coble?
        [No response.]
        The Clerk. Mr. Smith?
        [No response.]
        The Clerk. Mr. Gallegly?
        [No response.]
        The Clerk. Mr. Goodlatte?
        [No response.]
        The Clerk. Mr. Chabot?
        Mr. Chabot. No.
        The Clerk. Mr. Chabot, no. Mr. Lungren?
        Mr. Lungren. No.
        The Clerk. Mr. Lungren, 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. Inglis?
        Mr. Inglis. No.
        The Clerk. Mr. Inglis, no. Mr. Hostettler?
        Mr. Hostettler. No.
        The Clerk. Mr. Hostettler, no. Mr. Green?
        Mr. Green. No.
        The Clerk. Mr. Green, no. Mr. Keller?
        Mr. Keller. No.
        The Clerk. Mr. Keller, no. Mr. Issa?
        Mr. Issa. No.
        The Clerk. Mr. Issa, no. Mr. Flake?
        Mr. Flake. No.
        The Clerk. Mr. Flake, no. Mr. Pence?
        Mr. Pence. No.
        The Clerk. Mr. Pence, no. Mr. Forbes?
        Mr. Forbes. No.
        The Clerk. Mr. Forbes, no. Mr. King?
        [No response.]
        The Clerk. Mr. Feeney?
        [No response.]
        The Clerk. Mr. Franks?
        Mr. Franks. No.
        The Clerk. Mr. Franks, no. Mr. Gohmert?
        Mr. Gohmert. No.
        The Clerk. Mr. Gohmert, no. Mr. Conyers?
        Mr. Conyers. Aye.
        The Clerk. Mr. Conyers, aye. Mr. Berman?
        [No response.]
        The Clerk. Mr. Boucher?
        [No response.]
        The Clerk. Mr. Nadler?
        Mr. Nadler. Aye.
        The Clerk. Mr. Nadler, aye. Mr. Scott?
        Mr. Scott. Aye.
        The Clerk. Mr. Scott, aye. Mr. Watt?
        [No response.]
        The Clerk. Ms. Lofgren?
        Ms. Lofgren. Aye.
        The Clerk. Ms. Lofgren, aye. Ms. Jackson Lee?
        [No response.]
        The Clerk. Ms. Waters?
        Ms. Waters. Aye.
        The Clerk. Ms. Waters, aye. Mr. Meehan?
        Mr. Meehan. Aye.
        The Clerk. Mr. Meehan, aye. Mr. Delahunt?
        [No response.]
        The Clerk. Mr. Wexler?
        [No response.]
        The Clerk. Mr. Weiner?
        [No response.]
        The Clerk. Mr. Schiff?
        Mr. Schiff. Aye.
        The Clerk. Mr. Schiff, aye. Ms. Sanchez?
        Ms. Sanchez. Aye.
        The Clerk. Ms. Sanchez, aye. Mr. Smith?
        [No response.]
        The Clerk. Mr. Van Hollen?
        Mr. Van Hollen. Aye.
        The Clerk. Mr. Van Hollen, aye. Mr. Chairman?
        Chairman Sensenbrenner. No.
        The Clerk. Mr. Chairman, no.
        Chairman Sensenbrenner. Members who wish to cast or change
    their vote? The gentleman from Texas, Mr. Smith?
        Mr. Smith. I vote no, Mr. Chairman.
        The Clerk. Mr. Smith, no.
        Chairman Sensenbrenner. The gentleman from California, Mr.
    Gallegly?
        Mr. Gallegly. No.
        The Clerk. Mr. Gallegly, no.
        Chairman Sensenbrenner. The gentleman from Florida, Mr.
    Feeney?
        Mr. Feeney. No.
        The Clerk. Mr. Feeney, no.
        Chairman Sensenbrenner. The gentleman from North Carolina,
    Mr. Coble?
        Mr. Coble. No.
        The Clerk. Mr. Coble, no.
        Chairman Sensenbrenner. The gentleman from Iowa, Mr. King?
        Mr. King. No.
        The Clerk. Mr. King, no.
        Chairman Sensenbrenner. The gentleman from North Carolina,
    Mr. Watt?
        Mr. Watt. Aye.
        The Clerk. Mr. Watt, aye.
        Chairman Sensenbrenner. The gentleman from New York, Mr.
    Weiner?
        Mr. Weiner. Aye.
        The Clerk. Mr. Weiner, aye.
        Chairman Sensenbrenner. Further Members who wish to cast or
    change their vote?
        The gentlewoman from Texas, Ms. Jackson Lee?
        Ms. Jackson Lee. How am I recorded?
        The Clerk. Mr. Chairman, I don't have Ms. Jackson Lee
    recorded.
        Ms. Jackson Lee. Aye.
        The Clerk. Ms. Jackson Lee, aye.
        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 20 noes.
        Chairman Sensenbrenner. And the motion is not agreed to.
    The question recurs on the amendment offered by the gentleman--
    --
        Mr. Conyers. Mr. Chairman, point of order.
        Chairman Sensenbrenner.--the gentleman from Virginia, Mr.
    Scott.
        The gentleman from Michigan will state his point of order.
        Mr. Conyers. Mr. Chairman, my point of order is that the
    motion that I made is in fact debatable. And I make a point of
    order against your preventing us from having a discussion as to
    why I wanted to move it to June 15, 2005, which is simply
    because there have been no hearings. And the House rules,
    Clause 4, rule 16, provides that a motion of this nature may be
    subject to debate.
        Chairman Sensenbrenner. The chair was in error. Motions to
    postpone to a day certain are debatable motions. However, the
    point of order is moot because the motion has already been
    disposed of by a rollcall vote.
        Mr. Conyers. Well----
        Chairman Sensenbrenner. So the question does recur on the
    amendment offered----
        Mr. Nadler. Mr. Chairman? Mr. Chairman?
        Mr. Chairman?
        Mr. Chairman, I move that further consideration of this
    bill be postponed to June 16.
        Chairman Sensenbrenner. Okay, the question is whether----
        Mr. Nadler. And I ask--we are entitled to debate on that
    now. And I yield to the gentleman from Michigan.
        Chairman Sensenbrenner. The gentleman is recognized for 5
    minutes.
        Mr. Nadler. Thank you. I yield to the distinguished Ranking
    Member.
        Mr. Conyers. Thank you, Mr. Nadler.
        Ladies and gentlemen of the Committee, this is a very
    simple matter of process, namely that since there have been no
    hearings on this measure, to tell Members that there were
    hearings somewhere in the distant past and that therefore there
    are no further hearings necessary on a constitutional amendment
    to me offends the nature of the importance of the Committee and
    of amending the Constitution of the United States.
        And so it was my intention to offer a motion that would set
    a date for such a hearing on or before June 15, 2005. That's
    all I'm trying to do.
        Now we have a suggestion that we do it on June 16, which I
    support entirely. But it would seem that the least we could do
    is have hearings in which we bring in some other authorities
    rather than our 5 minutes of debate both pro and con, and
    examine this question more closely. The importance of amending
    the Constitution of the United States requires that we at least
    observe, on constitutional amendments, that we have had
    hearings. I think we should have hearings on all measures that
    we bring to the full Committee, but at least on a
    constitutional amendment.
        And so I urge my colleagues on the other side of the aisle
    to use some sense of fairness in merely postponing this for a
    short while for us to have some current, up-to-date authorities
    come before our Subcommittee to deal with this very important
    question.
        Mr. Nadler. Thank you. Reclaiming my time.
        I agree with the distinguished Ranking Member. The fact is
    that it's all well and good to say we've had hearings in prior
    Congresses and maybe the testimony wouldn't change, but it is
    rather contemptuous of the Constitution to offer an amendment
    to the Constitution and not even have a single hearing on it,
    not even have a Subcommittee vote on it. Frankly, I don't know
    that there is any real--if anybody really cares about amending
    the Constitution for this purpose, as opposed to having the
    political advantages of talking about amending the
    Constitution. So maybe that's why we don't care about going
    through the proper forms, because it's not taken seriously as a
    real proposition.
        Mr. Weiner. Will the gentleman yield?
        Mr. Nadler. One moment.
        I think that's a mistake, because one of these days, God
    forbid, it may actually be adopted and then that would be a
    serious harm to the freedom of this country, and it should not
    be done without proper consideration even if the motive is
    really only for transitory political gain. We're playing with
    fire here.
        Who wanted me to yield?
        Mr. Weiner. I did, Mr. Nadler.
        Mr. Nadler. Oh, yes. I'll yield.
        Mr. Weiner. You know, just echoing that point. There's
    another issue here of timing. The Senate is not going to pass
    this. The Senate hasn't in the past. So why don't, since you've
    been in the embarrassing situation with a Republican House, a
    Republican Senate, a Republican presidency, a Republican
    judiciary, why don't you let them go first this time? You've
    been passing this and having it stopped in the Senate.
    Apparently your powers of persuasion stop at the doors to this
    room. Perhaps these extra couple of weeks implicit in the
    Nadler motion and in the Conyers motion, maybe it will give you
    a chance to line up some of your troops in the other body,
    because they've shown no indication that they're prepared to
    walk off this cliff with you. Frankly, that's probably a good
    thing. Rarely do I wake up in the morning and thank my lucky
    stars for the other body, but in this case maybe in the 2 weeks
    extra that you'll have, you'll be able to work your remarkable
    powers of persuasion on them. And that might be something else
    that we can do with the additional time granted by the Nadler
    motion.
        Mr. Nadler. Reclaiming my time.
        I agree with the distinguished gentleman, except that I
    will say that I wake up every day thanking God for the
    existence of the other body.
        Chairman Sensenbrenner. Does the gentleman wish to yield
    back?
        Mr. Nadler. Yes, I yield back.
        Chairman Sensenbrenner. The chair recognizes himself for 5
    minutes in opposition to the motion.
        The arguments that have been advanced by those who wish to
    delay this matter for a few weeks would have validity if there
    were new arguments that were advanced in opposition to this
    amendment. The fact is, there aren't. And having a hearing on
    this amendment will simply have everybody validating the
    arguments that have been made both pro and con in hearings that
    have been held before the Subcommittee in previous Congresses.
    If there were new arguments, I'd like to hear them. But since
    there aren't, we don't need to have another hearing. I think we
    should proceed. If we wish to vote against the amendment,
    that's our prerogative.
        Mr. Conyers. Will the Chairman yield?
        Chairman Sensenbrenner. If not, then we should support it.
    I yield to the gentleman from Michigan.
        Mr. Conyers. I thank the Chairman for yielding. I wish I
    knew as well as he did that there are no new arguments to be
    advanced. We don't know who the witnesses would be. I have no
    way of telling if there are new arguments or not. But
    furthermore, Mr. Chairman, with all due respect, I don't think
    a lot of Members remember what the old arguments are, much less
    what the new ones are going to be.
        And I thank the gentleman for yielding.
        Chairman Sensenbrenner. Reclaiming my time.
        There are hearing records that have been printed in the
    hearings in the past and we will be happy to distribute those
    to the Members that wish to read them.
        I yield back the balance of my time.
        The question is on the motion----
        Mr. Weiner. Mr. Chairman?
        Chairman Sensenbrenner. The gentleman from New York, Mr.
    Weiner.
        Mr. Weiner. I don't need 5 minutes. I just want to strike
    the last word for the purpose of making the argument that, you
    know, frankly, part of what we could learn since the last time
    that we did this bill is perhaps this is not the burning,
    searing issue that you thought it was last year or the year
    before or the year before. Perhaps we'll hear some evidence
    that will persuade us that the problem of flag desecration has
    reached new epidemic proportions. Maybe those of us who are not
    convinced that this has been exactly the most riveting problem
    facing the country since September 11, maybe those of us who
    believe that actually there's been greater respect for the flag
    since September 11--more people displaying it, more people
    showing it deference, more people displaying it in a way that
    might run afoul of this constitutional amendment because of the
    way it hangs from their rearview mirror or hangs from their car
    bumper.
        I think, frankly, as the years go by very often we do gain
    greater perspective on things. Sometimes we even find that
    amendments to the Constitution that we passed were not wise and
    we had to undo them. Sometimes we find with greater passage of
    time that cooler heads prevail and that maybe the political
    imperatives of gaining some traction on an issue are not nearly
    as important as having fidelity to the institution of the
    Constitution. Maybe the political posturing that sometimes
    seems like it's something valuable to do leading up to a
    presidential campaign, maybe it doesn't seem so ripe right now.
    That's the reason why you wait. This is a serious matter. It's
    not--it should not be seen as just another twig you throw on
    the fire of the political barnstorm.
        I think that, frankly, being cautious and being
    deliberative, I think, shows respect to the weight of the issue
    that we're showing here. If you have another hearing, if you
    have other people come before us, if you have people testify,
    who knows--is it so preposterous that someone might be
    persuaded to change their mind on this issue? I don't think so.
    And I think that that's--frankly, very often we find ourselves
    in a situation in this Committee where it's evocative of
    Groundhog Day, that we're dealing with issues again and again
    and again and again. Sometimes just the pure drumbeat of the
    wisdom of the witnesses sometimes does have influence, and I
    think that we shouldn't dismiss it. Because if you take your
    argument to its logical extreme, we should just say why have
    hearings? There are books that have been printed, articles that
    have been published, let's just go and read them and let's just
    gather up all the votes at the end of the week and just vote
    them all without any hearings.
        So I think that the Nadler motion offers some wisdom to us.
        Mr. Conyers. Would the gentleman yield?
        Mr. Weiner. Certainly.
        Mr. Conyers. I thank him for raising the question that we
    should all have old copies of hearings distributed to all
    Members that want to find out what all the arguments have been
    over the years. I don't think that solves the question of the
    importance of hearings right now.
        There is something else that occurred to me, Mr. Weiner,
    and that is the fact that Amnesty International has said that
    we have one of the worst human rights records in the world. And
    it seems to me that if we are to be held as the beacon of
    democracy, of constitutional order, it's very important that
    since 9/11 all of our acts are really being scrutinized
    internationally quite closely. I don't think that we would
    upset the march of the leadership in the House, the Senate, and
    the Executive Branch if we were to hold hearings at the
    Subcommittee level and have some witnesses there.
        In all fairness, this is a matter that is going to be
    examined around the world. As the leader of a democratic
    constitutional system of Government, as the one country that
    advocates order more than any other, it seems to me exceedingly
    important that this small detail, overlooked until now, be
    observed.
        And I thank the gentleman for the time.
        Mr. Scott. Would the gentleman yield?
        Mr. Weiner. I have a few seconds, but I'll be glad to yield
    the final balance of my time to Mr. Scott.
        Mr. Scott. I thank the gentleman for yielding.
        I just wanted to remind the Committee what we're voting on:
    Page 2, line 9, strike ``desecration,'' insert ``burning,'' so
    that all flag burning will be illegal, not just flag burning
    that is insulting to the sheriff while it would be okay to burn
    the flag while you're saying something nice.
        Chairman Sensenbrenner. The time of the gentleman has
    expired.
        The first question is on the motion offered by the
    gentleman from New York, Mr. Nadler, to postpone consideration
    until June 16. Those in favor will say aye; opposed, no.
        The noes appear to have it.
        A rollcall is ordered. The question is on the motion to
    postpone. Those in favor will, as your names are called, answer
    aye; those opposed, no. 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. Lungren?
        Mr. Lungren. No.
        The Clerk. Mr. Lungren, no. Mr. Jenkins?
        Mr. Jenkins. No.
        The Clerk. Mr. Jenkins, no. Mr. Cannon?
        [No response.]
        The Clerk. Mr. Bachus?
        [No response.]
        The Clerk. Mr. Inglis?
        Mr. Inglis. No.
        The Clerk. Mr. Inglis, no. Mr. Hostettler?
        Mr. Hostettler. No.
        The Clerk. Mr. Hostettler, no. Mr. Green?
        [No response.].
        The Clerk. Mr. Keller?
        Mr. Keller. No.
        The Clerk. Mr. Keller, no. Mr. Issa?
        [No response.]
        The Clerk. Mr. Flake?
        [No response.]
        The Clerk. Mr. Pence?
        [No response.]
        The Clerk. Mr. Forbes?
        Mr. Forbes. No.
        The Clerk. Mr. Forbes, no. Mr. King?
        Mr. King. No.
        The Clerk. Mr. King, no. Mr. Feeney?
        [No response.]
        The Clerk. Mr. Franks?
        Mr. Franks. No.
        The Clerk. Mr. Franks, no. Mr. Gohmert?
        Mr. Gohmert. No.
        The Clerk. Mr. Gohmert, no. Mr. Conyers?
        Mr. Conyers. Aye.
        The Clerk. Mr. Conyers, aye. Mr. Berman?
        [No response.]
        The Clerk. Mr. Boucher?
        [No response.]
        The Clerk. Mr. Nadler?
        Mr. Nadler. Aye.
        The Clerk. Mr. Nadler, aye. Mr. Scott?
        Mr. Scott. Aye.
        The Clerk. Mr. Scott, aye. Mr. Watt?
        [No response.]
        The Clerk. 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?
        [No response.]
        The Clerk. Mr. Meehan?
        Mr. Meehan. Aye.
        The Clerk. Mr. Meehan, aye. Mr. Delahunt?
        [No response.]
        The Clerk. Mr. Wexler?
        [No response.]
        The Clerk. 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. Smith?
        [No response.]
        The Clerk. Mr. Van Hollen?
        Mr. Van Hollen. Aye.
        The Clerk. Mr. Van Hollen, aye. Mr. Chairman?
        Chairman Sensenbrenner. No.
        The Clerk. Mr. Chairman, no.
        Chairman Sensenbrenner. Further Members who wish to cast or
    change their votes? The gentleman from California, Mr. Issa?
        Mr. Issa. No.
        The Clerk. Mr. Issa, no.
        Chairman Sensenbrenner. The gentleman from North Carolina,
    Mr. Watt?
        Mr. Watt. Aye.
        The Clerk. Mr. Watt, aye.
        Chairman Sensenbrenner. The gentleman from Florida, Mr.
    Feeney.
        Mr. Feeney. No.
        The Clerk. Mr. Feeney, no.
        Chairman Sensenbrenner. The gentleman from Wisconsin, Mr.
    Green?
        Mr. Green. No.
        The Clerk. Mr. Green, no.
        Chairman Sensenbrenner. The gentleman from Utah, Mr.
    Cannon?
        Mr. Cannon. No.
        The Clerk. Mr. Cannon, no.
        Chairman Sensenbrenner. The gentleman from Arizona, Mr.
    Flake?
        Mr. Flake. No.
        The Clerk. Mr. Flake, no.
        Chairman Sensenbrenner. Further Members who wish to cast or
    change their votes? If not, the clerk will report.
        The Clerk. Mr. Chairman, there are 11 ayes and 19 noes.
        Chairman Sensenbrenner. And the motion to postpone
    consideration until a date certain is not agreed to.
        The question now occurs 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.
        rollcall? The question is on agreeing to the Scott
    amendment. Those in favor will, as your names are called,
    answer aye; those opposed, no. 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. Lungren?
        Mr. Lungren. No.
        The Clerk. Mr. Lungren, 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. Inglis?
        Mr. Inglis. No.
        The Clerk. Mr. Inglis, no. Mr. Hostettler?
        Mr. Hostettler. No.
        The Clerk. Mr. Hostettler, no. Mr. Green?
        Mr. Green. No.
        The Clerk. Mr. Green, no. Mr. Keller?
        Mr. Keller. No.
        The Clerk. Mr. Keller, no. Mr. Issa?
        [No response.]
        The Clerk. Mr. Flake?
        Mr. Flake. No.
        The Clerk. Mr. Flake, no. Mr. Pence?
        [No response.]
        The Clerk. Mr. Forbes?
        Mr. Forbes. No.
        The Clerk. Mr. Forbes, no. Mr. King?
        Mr. King. No.
        The Clerk. Mr. King, no. Mr. Feeney?
        [No response.]
        The Clerk. Mr. Franks?
        Mr. Franks. No.
        The Clerk. Mr. Franks, no. Mr. Gohmert?
        Mr. Gohmert. No.
        The Clerk. Mr. Gohmert, no. Mr. Conyers?
        Mr. Conyers. Aye.
        The Clerk. Mr. Conyers, aye. Mr. Berman?
        [No response.]
        The Clerk. Mr. Boucher?
        [No response.]
        The Clerk. Mr. Nadler?
        Mr. Nadler. Aye.
        The Clerk. Mr. Nadler, aye. Mr. Scott?
        Mr. Scott. Aye.
        The Clerk. Mr. Scott, aye. Mr. Watt?
        Mr. Watt. Aye.
        The Clerk. Mr. Watt, aye. Ms. Lofgren?
        Ms. Lofgren. Aye.
        The Clerk. Ms. Lofgren, aye. Ms. Jackson Lee?
        Ms. Jackson Lee. Aye.
        The Clerk. Ms. Jackson Lee, aye. Ms. Waters?
        [No response.]
        The Clerk. Mr. Meehan?
        Mr. Meehan. Aye.
        The Clerk. Mr. Meehan, aye. Mr. Delahunt?
        [No response.]
        The Clerk. Mr. Wexler?
        [No response.]
        The Clerk. 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. Smith?
        [No response.]
        The Clerk. Mr. Van Hollen?
        Mr. Van Hollen. Aye.
        The Clerk. Mr. Van Hollen, aye. Mr. Chairman?
        Chairman Sensenbrenner. No.
        The Clerk. Mr. Chairman, no.
        Chairman Sensenbrenner. Members who wish to cast or change
    their votes? The gentleman from California, Mr. Issa?
        Mr. Issa. No.
        The Clerk. Mr. Issa, no.
        Chairman Sensenbrenner. The gentleman from Florida, Mr.
    Feeney.
        Mr. Feeney. No.
        The Clerk. Mr. Feeney, 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 11 ayes and 19 noes.
        Chairman Sensenbrenner. The gentlewoman from Texas, Ms.
    Jackson Lee?
        The Clerk. Mr. Chairman, Ms. Jackson Lee is recorded as an
    aye.
        Chairman Sensenbrenner. The clerk will report.
        The Clerk. Mr. Chairman, there are 11 ayes and 19 noes.
        Chairman Sensenbrenner. And the amendment is not agreed to.
    Are there further amendments?
        The gentlewoman from----
        Mr. Conyers. Mr. Chairman?
        Chairman Sensenbrenner. The gentleman from Michigan, Mr.
    Conyers.
        Mr. Conyers. Could I ask unanimous consent to put the
    Amnesty International record of the United States in the record
    at this point?
        Chairman Sensenbrenner. Without objection.
        Mr. Conyers. Thank you.
        Mr. King. Mr. Chairman?
        Chairman Sensenbrenner. For what purpose does the gentleman
    from Iowa seek recognition?
        Mr. King. Reserving my right to object, I wonder if the
    Ranking Member might yield to a question?
        Mr. Conyers. Of course. With pleasure, sir.
        Mr. King. With regard to the ranking of the United States
    by Amnesty International, could you inform this Committee as to
    what nation is ranked first and where the United States
    actually ranks in human rights?
        Mr. Conyers. I don't have it in this document. But if we
    were to have a hearing, I'd be happy to provide that
    information for you.
        But that's the point that I'm putting it in the record, so
    you can read it and find out where we are. I don't know that
    this is specifically----
        Mr. Chabot. Would the gentleman yield?
        Mr. King. I would yield.
        Mr. Chabot. Could I ask the gentleman a question also. I
    think your statement was, Mr. Conyers, that according to that
    article the United States has one of the worst human rights
    records in the world. Is that correct, that it says that?
        Mr. Conyers. Yes, sir.
        Mr. Chabot. Because I find that statement, if it's
    contained in that report, an absurdity. And I just can't
    believe that--I don't believe it. It's hard for me to
    comprehend that any organization, even Amnesty International,
    could make that statement.
        Do you believe that that statement is true, Mr. Conyers?
    And I have the utmost respect for you, so I think it's really a
    rather important issue.
        Mr. Conyers. Well, I do, too. That's why I'm trying to put
    it in the record. I mean, if it's incorrect, you read about it
    or I'll provide you with a copy----
        Mr. Chabot. Do you think it's correct, though, is my
    question.
        Mr. Conyers. Oh, yes. Of course. Everything I say I believe
    is correct.
        Mr. Chabot. So you believe that the United States is----
        Mr. Conyers. Has one of the worst records.
        Mr. Chabot.--has one of the worst records on human rights--
    --
        Mr. Weiner. Reserving the right to object.
        Mr. Conyers. I've already answered you once, but I'll do it
    again.
        Mr. Chabot. Okay. I'm surprised, but if--I'm surprised that
    you would say that.
        Mr. Conyers. Absolutely.
        Mr. Weiner. Reserving the right to object.
        Mr. King. Reclaiming my time.
        Chairman Sensenbrenner. The time belongs to the gentleman
    from Iowa, Mr. King.
        Mr. King. Mr. Chairman, I'd ask unanimous consent to
    introduce some other information into the record with regard to
    the United States record with regard----
        Chairman Sensenbrenner. Well, the pending UC request, which
    you've reserved the right to object to, is for Mr. Conyers to
    introduce the Amnesty International report to which he has
    referred into the record.
        Is there objection?
        Mr. King. Mr. Chairman, with regard to that lack----
        Chairman Sensenbrenner. The gentleman reserves the right to
    object.
        Mr. King. Mr. Chairman, I object.
        Mr. Lungren. Mr. Chairman, I object.
        Chairman Sensenbrenner. The objection is heard. Are there
    further amendments?
        Ms. Lofgren. Mr. Chairman?
        Chairman Sensenbrenner. The gentlewoman from California,
    Ms. Lofgren.
        Ms. Lofgren. I have an amendment at the desk.
        Chairman Sensenbrenner. The clerk will report the
    amendment.
        Ms. Lofgren. I would ask unanimous consent that the
    amendment be considered as read.
        Mr. Weiner. Mr. Chairman, a point of order.
        Chairman Sensenbrenner. The clerk will report----
        Mr. Weiner. Mr. Chairman, a point of order.
        Chairman Sensenbrenner. The clerk will report the
    amendment.
        The Clerk. Amendment to H.J. Res. 10, offered by Ms.
    Lofgren of California. Page 2, line 8, insert at the beginning,
    ``Section 1.''. Page 2, after line 9----
        Mr. Weiner. Mr. Chairman, point of order.
        Chairman Sensenbrenner. A point of order is reserved on the
    amendment. Without objection, the amendment is considered as
    read.
        [The amendment of Ms. Lofgren follows:]

        Chairman Sensenbrenner. The gentlewoman from California,
    Ms. Lofgren----
        Mr. Weiner. Mr. Chairman, I have a point of order.
        Chairman Sensenbrenner.--will be recognized for 5 minutes.
        A point of order has been reserved. It has not been made.
    The gentlewoman from California, Ms. Lofgren, is recognized for
    5 minutes.
        Mr. Weiner. Mr. Chairman, I have a point of order.
        Chairman Sensenbrenner. The gentleman will state his point
    of order.
        Mr. Weiner. Mr. Chairman, my point of order is this. Does
    not the Ranking Member, if not authorized by unanimous consent
    to introduce materials into the record, is he not then
    permitted to do so by a simple vote of the Committee?
        Chairman Sensenbrenner. The parliamentarian is looking in
    the rules on that.
        Mr. Weiner. And if I could further on my point of order,
    you know, it is----
        Chairman Sensenbrenner. What I will tell the gentleman from
    New York is that gentleman from Michigan asked unanimous
    consent to insert material into the record. The gentleman from
    California, Mr. Lungren, objected. And as a result of the
    objection, the unanimous consent request of the gentleman from
    Michigan has failed.
        Mr. Weiner. This much I understand. My point of order
    revolves around the rights of every Member and the custom in
    this Committee to permit Members to put things into the record
    regardless of whether Members on either side agree with them.
    And the fact that it is customary at the end of a hearing for
    the Chairman to say, as a point of general proceedings, that
    Members have unanimous consent of five legislative days to
    insert material. And I believe that if that objection is
    upheld, then we have to consider it to be an objection at the
    end of the record as well, where you're----
        Chairman Sensenbrenner. Well, if the gentleman from New
    York will yield, we have never asked in this Committee general
    leave for Members to insert material into the record. And in
    fact, the House rules, what they do do is give every Member a
    right to file additional supplemental, minority, or dissenting
    views to bills that have been reported. And the chair makes
    that statement routinely on behalf of all Members following the
    reporting of a bill. But what is put into dissenting views is
    up to those who wish to submit the dissenting views, and one
    does not need unanimous consent in order to put dissenting
    views or supplemental views into the record.
        Mr. Weiner. I'm still waiting on the ruling on my point of
    order.
        Mr. Conyers. Would the gentleman yield?
        Mr. Weiner. I don't know if I have any time to yield, but
    certainly.
        Mr. Conyers. I thank you for yielding, because obviously,
    after your point of order, I'm going to make a motion that this
    record of Amnesty International be inserted in the record at
    this point.
        Chairman Sensenbrenner. The chair is prepared to rule on
    the point of order that has been raised by the gentleman from
    New York. The gentleman from Michigan, Mr. Conyers, should he
    wish, can make a motion to include the material from Amnesty
    International, or other material, into the record.
        Mr. Weiner. Thank you, Mr. Chairman.
        Ms. Lofgren. Mr. Chairman?
        Chairman Sensenbrenner. Okay, we are now at recognizing the
    gentlewoman from California for 5 minutes. Since we do have two
    votes, the chair will recess the Committee until 1 o'clock. We
    have this bill and two other bills that we would like to get
    done today. The chair would implore Members to return promptly
    at 1 o'clock.
        The Committee stands recessed.
        [Whereupon, the Committee was recessed from 11:40 a.m until
    1:12 p.m.]
        Chairman Sensenbrenner. The Committee will be in order. A
    working quorum is present.
        The gentleman from Michigan.
        Mr. Conyers. Mr. Chairman, I ask unanimous consent to
    include a report from Amnesty International in our proceedings
    in terms of the gun manufacturers and gun dealers, the bill
    before the Committee. And it deals with our human rights
    record.
        Chairman Sensenbrenner. Without objection.
        [The information follows:]

        Chairman Sensenbrenner. Pending when the Committee recessed
    was an amendment that was offered by the gentlewoman from
    California, Ms. Lofgren, on which the gentleman from Ohio, Mr.
    Chabot, had reserved a point of order. The amendment by the
    gentlewoman from California was considered as read and open for
    amendment at any point.
        The chair recognizes the gentlewoman from California for 5
    minutes.
        Ms. Lofgren. Thank you, Mr. Chairman.
        This, as Members have pointed out, is an amendment that has
    been considered by this Committee on numerous occasions. But I
    think all of us, especially after 9/11, have, if possible, an
    even stronger feeling about our nation's flag. And I think all
    of us, when we walk over to the Capitol, and for me especially
    at night, when you see our flag, it really does something to
    our hearts about what this country stands for and how committed
    each and every one of us is to our country and to the freedoms
    that our flag stands for.
        One of those freedoms is freedom of speech. And one of the
    things that has made our country strong and free is the
    proposition that Americans are free to express their opinions
    even when we don't agree with those opinions. And as has been
    mentioned by other Members, the amendment before us would be,
    if adopted, the first time that the first amendment to the
    Constitution of the United States had been altered by an
    amendment. I think that we would make a mistake to amend the
    first amendment. That's why our soldiers go off and fight for
    our country, to keep our freedoms down through the lines.
        But I think there's another reason why this amendment has
    been offered, and that's to divert attention from something
    that we can do something about, and that's making sure that our
    veterans get what they are entitled to for the efforts they
    have made for their country. My amendment would make sure that
    this article would not take effect until Congress, by law,
    ensures that the veterans benefits promised to an individual in
    connection with that individual's enlistment or induction in
    the armed services cannot, after that enlistment or induction,
    be diminished.
        Now, why is that important? Veterans are getting a raw deal
    today, and I think we all know it. In the Veterans Affairs
    Committee, the budget resolution we've adopted, the Veterans
    Committee is required to identify $155 million in benefit cuts
    in the next year, or $798 million in cuts to veterans benefits
    over the next 5 years. We know that while there was a small
    increase in some accounts, the need for care far exceeds what
    the Congress is providing. In fact, patient resources, without
    collections, have increased about 13 percent, but the number of
    patients has increased by 25 percent, leaving a 13 to 14
    percent gap. And maybe that's one of the reasons why, according
    to the American Legion, I believe, 30,000 veterans are waiting
    6 months or longer for an appoint at a veterans hospital. And
    the budget that we have adopted will not change that.
        Now, when we take a look at what the budget does, this 13
    to 14 percent gap in what we're funding and what veterans need
    also includes a co-payment that is going to double or triple
    what veterans are required to pay as a co-payment for their
    monthly supply of prescription drugs. And under the proposed
    budget, the Veterans of Foreign Wars estimates that as many as
    220,000 men and women veterans could lose benefits. In fact,
    the American Legion's national commander said this: No active-
    duty servicemember in harm's way should ever have to question
    the Nation's commitment to veterans. This is the wrong message
    at the wrong time to the wrong constituency.
        And Thomas Corey, the national president of the Vietnam
    Veterans of America, said, and I quote: It does a disservice to
    those who donned the uniform to defend the rights, the
    principles and freedoms that we hold dear.
        Last year, in a budget that was actually better than the
    one this year, then-VFW Commander Edward Banas, Sr. complained
    the funding package is a disgrace and a sham. To ask this
    Nation's veterans to subsidize their health care is outrageous.
    They have already paid for health care with their sweat and
    their blood.
        I believe that symbols are important. But action--action to
    make sure that the veterans, the men and women who join and put
    their lives on the line; action to make sure that they get what
    they deserve--is what this Congress ought to do.
        I strongly urge the Committee to adopt this amendment.
        Chairman Sensenbrenner. The time of the gentlewoman has
    expired. Does the gentleman from Ohio, Mr. Chabot, insist on
    his point of order?
        Mr. Chabot. The gentleman will state his point of order.
        Mr. Chabot. Mr. Chairman, I make a point of order that the
    amendment is not germane under House rules, as it does not
    relate to the underlying purpose of the resolution and attaches
    additional criteria to the ratification process. In addition, I
    would note that it's further not germane because the substance
    of the amendment is not within the jurisdiction of this
    Committee, but rather is within the jurisdiction of the
    Veterans Affairs Committee.
        I yield back.
        Ms. Lofgren. On the point of order, Mr. Chairman.
        Chairman Sensenbrenner. The gentlewoman from California.
        Ms. Lofgren. I very much disagree. This Committee has
    exclusive jurisdiction over constitutional amendments. A
    constitutional amendment to provide that veterans of this
    country should get what they were promised by way of health
    care and benefits would not go to the Veterans Affairs
    Committee. All constitutional amendments go to the House
    Judiciary Committee. So I would urge that we adopt this
    amendment to the amendment and that we not duck this issue.
    This is important and we need to vote to adopt it and to move
    forward.
        So I strongly believe that this is both germane and
    certainly more than appropriate.
        I yield back.
        Chairman Sensenbrenner. The chair is prepared to rule. The
    gentleman from Ohio has made a point of order in which he
    argues that the amendment is not germane, one, because it deals
    with a different issue than the underlying bill, and secondly
    that, if it was a stand-alone provision, it would not be in the
    jurisdiction of the Committee.
        The chair agrees with the gentlewoman from California and
    disagrees with the gentleman from Ohio on the second point. All
    constitutional amendments are within the jurisdiction of the
    Judiciary Committee irrespective of subject. However, the chair
    agrees with the gentleman from Ohio that the amendment is not
    germane for the first part of his argument, in that it deals
    with a different topic than the underlying joint resolution.
        Therefore, the chair sustains the point of order of the
    gentleman from Ohio.
        Are there further amendments?
        Ms. Lofgren. Mr. Chairman, I challenge the chair's ruling.
        Chairman Sensenbrenner. The gentlewoman from California
    appeals the decision of the chair. The gentleman from North
    Carolina moves to table the appeal.
        Those in favor of tabling the appeal of the decision of the
    chair will, as your names are called, answer aye; those
    opposed, no. The clerk will call the roll.
        The Clerk. Mr. Hyde?
        [No response.]
        The Clerk. Mr. Coble?
        Mr. Coble. Aye.
        The Clerk. Mr. Coble, aye. 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. Lungren?
        Mr. Lungren. Aye.
        The Clerk. Mr. Lungren, 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. Inglis?
        Mr. Inglis. Aye.
        The Clerk. Mr. Inglis, aye. Mr. Hostettler?
        Mr. Hostettler. Aye.
        The Clerk. Mr. Hostettler, aye. Mr. Green?
        [No response.]
        The Clerk. Mr. Keller?
        Mr. Keller. Aye.
        The Clerk. Mr. Keller, aye. Mr. Issa?
        Mr. Issa. Aye.
        The Clerk. Mr. Issa, aye. Mr. Flake?
        [No response.]
        The Clerk. Mr. Pence?
        [No response.]
        The Clerk. Mr. Forbes?
        [No response.]
        The Clerk. Mr. King?
        Mr. King. Aye.
        The Clerk. Mr. King, aye. Mr. Feeney?
        [No response.]
        The Clerk. Mr. Franks?
        Mr. Franks. Aye.
        The Clerk. Mr. Franks, aye. Mr. Gohmert?
        Mr. Gohmert. Aye.
        The Clerk. Mr. Gohmert, aye. Mr. Conyers?
        Mr. Conyers. No.
        The Clerk. Mr. Conyers, no. Mr. Berman?
        [No response.]
        The Clerk. Mr. Boucher?
        [No response.]
        The Clerk. Mr. Nadler?
        Mr. Nadler. No.
        The Clerk. Mr. Nadler, no. Mr. Scott?
        [No response.]
        The Clerk. Mr. Watt?
        [No response.]
        The Clerk. Ms. Lofgren?
        Ms. Lofgren. No.
        The Clerk. Ms. Lofgren, no. Ms. Jackson Lee?
        [No response.]
        The Clerk. Ms. Waters?
        [No response.]
        The Clerk. Mr. Meehan?
        [No response.]
        The Clerk. Mr. Delahunt?
        [No response.]
        The Clerk. Mr. Wexler?
        [No response.]
        The Clerk. Mr. Weiner?
        Mr. Weiner. No.
        The Clerk. Mr. Weiner, no. Mr. Schiff?
        Mr. Schiff. No.
        The Clerk. Mr. Schiff, no. Ms. Sanchez?
        Ms. Sanchez. No.
        The Clerk. Ms. Sanchez, no. Mr. Smith?
        [No response.]
        The Clerk. Mr. Van Hollen?
        Mr. Van Hollen. No.
        The Clerk. Mr. Van Hollen, no. Mr. Chairman?
        Chairman Sensenbrenner. Aye.
        The Clerk. Mr. Chairman, aye.
        Chairman Sensenbrenner. Further Members who wish to cast or
    change their vote? The gentleman from Virginia, Mr. Goodlatte?
        Mr. Goodlatte. Aye.
        The Clerk. Mr. Goodlatte, aye.
        Chairman Sensenbrenner. The gentleman from Wisconsin, Mr.
    Green?
        Mr. Green. Aye.
        The Clerk. Mr. Green, aye.
        Chairman Sensenbrenner. The gentleman from Virginia, Mr.
    Scott?
        Mr. Scott. No.
        The Clerk. Mr. Scott, no.
        Chairman Sensenbrenner. The gentleman from North Carolina,
    Mr. Watt?
        Mr. Watt. No.
        The Clerk. Mr. Watt, 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 17 ayes and 9 noes.
        Chairman Sensenbrenner. And the motion to table the appeal
    from the decision of the chair is agreed to.
        Are there further amendments?
        Ms. Lofgren. Mr. Chairman?
        Chairman Sensenbrenner. The gentlewoman from California,
    Ms. Lofgren.
        Ms. Lofgren. I have an amendment at the desk.
        Chairman Sensenbrenner. The clerk will report the
    amendment.
        The Clerk. Amendment to H.J. Res. 10, offered by Ms.
    Lofgren of California. Page 2, strike lines 8 and 9, and insert
    the following: Every flag of the United States manufactured in
    or imported into the United States after the effective date of
    this amendment must be manufactured out of flame-resistant
    material.
        Amend the title so as to read, ``Joint Resolution Proposing
    an Amendment to the Constitution of the United States Requiring
    Every Flag of the United States to be Manufactured Out of
    Flame-Resistant Material.''
        Chairman Sensenbrenner. The gentlewoman from California is
    recognized for 5 minutes.
        [The amendment follows:]

        Ms. Lofgren. Mr. Chairman, this is actually the other side
    of the coin of Mr. Scott's amendment. As I said in the
    discussion of the prior amendment, who loves our flag is not
    the question here today. I love our flag. And I am sure that
    the proponents of the constitutional amendment love our flag.
    The question is how to protect our Constitution, and can we
    also do something to protect the symbol of freedom that our
    flag is.
        As many of you know from my efforts on the Intellectual
    Property Subcommittee, I am a person who believes in
    technology. And I believe that when there are technological
    measures that can be taken that disturb in no way the freedoms
    that we have, that that is a better remedy than going about
    amending the first amendment to the Constitution.
        Now, I don't want to see people burning our flag. And if
    this amendment were passed, that would not be possible. Our
    flag could not be burned. And I would like to see that because
    it really burns me up and makes me mad to see people who would
    abuse our flag and burn our flag. So I think this is a much
    better approach to preventing that kind of misbehavior while
    still making sure that we do nothing to disturb the first
    amendment to the Constitution. And after all, as Mr. Scott
    pointed out in his earlier amendment in the morning, what we're
    talking about is the content of action, not the action itself.
        So I don't want to unduly prolong this debate. I think this
    is meritorious.
        Mr. Gallegly. Would the gentlelady yield?
        Ms. Lofgren. I would yield, Mr. Gallegly.
        Mr. Gallegly. I appreciate the spirit in which you have
    introduced this amendment. But the amendment that you are
    talking about has to do with desecrating the flag. And
    obviously, as much as I'm appalled by anyone that would burn
    the flag, I'm equally as appalled at anyone that would
    desecrate the flag in other ways. So I think that the real
    issue here is desecrating the flag, not only the terrible act
    of burning the flag. So I----
        Ms. Lofgren. Reclaiming my time. If the gentleman is
    offering a friendly amendment to the amendment that would add
    making the flag stain-resistant, I would accept that friendly
    amendment.
        Mr. Gallegly. If the gentlelady would further yield, would
    you agree to make it a capital offense in the case that someone
    decided to----
        Ms. Lofgren. That would be up to Congress in later----
        Mr. Gallegly. I would yield back.
        Ms. Lofgren. I actually retain the time. This is a
    constitutional amendment that would be part of the enabling
    legislation. I would say, as the Member probably knows, I am
    not an opponent of the death penalty in every case and I have
    voted for the death penalty in appropriate cases. Whether this
    would be such a case is something that we should have hearings
    on.
        Unless there is further discussion, I would yield back.
        Chairman Sensenbrenner. The question is on the amendment
    offered by the gentlewoman from California. Those in favor will
    say aye; opposed, no.
        The chair believes the noes have it. The noes have it and
    the amendment is not agreed to.
        Are there further amendments?
        If there are no further amendments, a reporting quorum is
    present. The question occurs on the motion to report H.J. Res.
    10 favorably. All in favor will say aye; opposed, no.
        The ayes appear to have it.
        Mr. Conyers. Record vote.
        Chairman Sensenbrenner. A record vote is requested. Those
    in favor of the motion to report H.J. Res. 10 favorably will,
    as your names are called, answer aye; those opposed, no. The
    clerk will call the roll.
        The Clerk. Mr. Hyde?
        [No response.]
        The Clerk. Mr. Coble?
        Mr. Coble. Aye.
        The Clerk. Mr. Coble, aye. 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. Lungren?
        Mr. Lungren. Aye.
        The Clerk. Mr. Lungren, 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. Inglis?
        Mr. Inglis. Aye.
        The Clerk. Mr. Inglis, aye. Mr. Hostettler?
        [No response.]
        The Clerk. Mr. Green?
        Mr. Green. Aye.
        The Clerk. Mr. Green, aye. Mr. Keller?
        Mr. Keller. Aye.
        The Clerk. Mr. Keller, aye. Mr. Issa?
        Mr. Issa. Aye.
        The Clerk. Mr. Issa, aye. Mr. Flake?
        [No response.]
        The Clerk. Mr. Pence?
        [No response.]
        The Clerk. Mr. Forbes?
        [No response.]
        The Clerk. Mr. King?
        Mr. King. Aye.
        The Clerk. Mr. King, aye. Mr. Feeney?
        [No response.]
        The Clerk. Mr. Franks?
        Mr. Franks. Aye.
        The Clerk. Mr. Franks, aye. Mr. Gohmert?
        Mr. Gohmert. Aye.
        The Clerk. Mr. Gohmert, aye. Mr. Conyers?
        Mr. Conyers. No.
        The Clerk. Mr. Conyers, no. Mr. Berman?
        [No response.]
        The Clerk. 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?
        [No response.]
        The Clerk. Mr. Delahunt?
        [No response.]
        The Clerk. Mr. Wexler?
        [No response.]
        The Clerk. Mr. Weiner?
        [No response.]
        The Clerk. Mr. Schiff?
        [No response.]
        The Clerk. Ms. Sanchez?
        Ms. Sanchez. No.
        The Clerk. Ms. Sanchez, no. Mr. Smith?
        [No response.]
        The Clerk. Mr. Van Hollen?
        Mr. Van Hollen. No.
        The Clerk. Mr. Van Hollen, no. Mr. Chairman?
        Chairman Sensenbrenner. Aye.
        The Clerk. Mr. Chairman, aye.
        Chairman Sensenbrenner. Are there further Members who wish
    to cast or change their vote? The gentleman from New York, Mr.
    Weiner?
        Mr. Weiner. How am I recorded?
        The Clerk. Mr. Chairman, Mr. Weiner is not recorded.
        Mr. Weiner. No.
        The Clerk. Mr. Weiner, no.
        Chairman Sensenbrenner. The gentleman from Virginia, Mr.
    Goodlatte?
        Mr. Goodlatte. Aye.
        The Clerk. Mr. Goodlatte, aye.
        Chairman Sensenbrenner. The gentleman from Alabama, Mr.
    Bachus?
        Mr. Bachus. Aye.
        The Clerk. Mr. Bachus, aye.
        Chairman Sensenbrenner. The gentleman from California, Mr.
    Schiff?
        Mr. Schiff. No.
        The Clerk. Mr. Schiff, 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 17 ayes and 9 noes.
        Chairman Sensenbrenner. And the motion to report favorably
    is agreed to. Without objection, the staff is directed to make
    any technical and conforming changes and all Members will be
    given 2 days, as provided by the House rules, and wish to
    submit additional dissenting, supplemental, or minority views.
        [Intervening business.]
        Chairman Sensenbrenner. The Chair would like to thank the
    Members and staff for their patience. We have completed a very
    ambitious agenda today. There will be no markup tomorrow
    because the agenda has been completed, and the Committee stands
    adjourned.
        [Whereupon, at 3:43 p.m., the Committee was adjourned.]

                                Additional Views

        The American flag serves a unique role as the symbol of our
    country's values and the embodiment of the rights guaranteed to
    all Americans under the United States Constitution--the supreme
    law of the land and the ultimate guardian of human rights in
    the United States. The protection of fundamental human rights
    was central to the purpose of our founding document, which
    serves as the longest-enduring written charter of government
    and a model of self-governance that has inspired the world. The
    United States stands as a bulwark against the tyranny that has
    marred human history, and as a beacon that inspires other
    peoples and nations. America is a catalyst for human freedom
    and liberty. In World War II, America's soldiers liberated
    millions and restored light to a darkened continent. During the
    Cold War, the United States gave voice to millions who aspired
    toward human dignity, freedom and liberty. Today, the struggle
    for freedom continues, and the United States continues to lead
    the effort to advance this noble cause. The United States
    Constitution has inspired and served as a model for numerous
    national constitutions and international (and regional) human
    rights norms.\1\
    ---------------------------------------------------------------------------
        \1\ Louis Henkin, Gerald L. Neuman, Diane F. Orentlicher, & David
    W. Leebron, Human Rights 119 (Foundation Press 1999).
    ---------------------------------------------------------------------------
        Despite this fact, at the Committee on the Judiciary's
    markup of H.J. Res. 10, the ``Flag Protection Amendment,''
    Ranking Member Conyers stated, ``Amnesty International has said
    that we have one of the worst human rights records in the
    world.'' Mr. Chabot, Chairman of the House Constitution
    Subcommittee, asked for clarification, stating, ``I think your
    statement was, Mr. Conyers, that according to that article the
    United States has one of the worst human rights records in the
    world.'' Mr. Chabot then asked Ranking Member Conyers, ``Do you
    think it's correct[?]'' to which Ranking Member Conyers
    replied, ``Oh yes. Of course. Everything I say I believe is
    correct.'' Mr. Chabot then repeated the question, asking if
    Ranking Member Conyers believed that the United States has one
    of the worst human rights records in the world. Ranking Member
    Conyers stated, ``Absolutely.'' Ranking Member Conyers was
    referring to Amnesty International Report 2005.\2\ Amnesty
    International, however, does not ``presume[] to rank
    governments or countries, nor desire[] to single out any regime
    or group of regimes as `the worst on earth.' '' \3\
    ---------------------------------------------------------------------------
        \2\ See http://web.amnesty.org/library/Index/ENGPOL100012005
    (Amnesty International Report 2005).
        \3\ Http://nobelprize.org/peace/laureates/1977/amnesty-lecture.html
    (Amnesty International--Nobel Lecture).
    ---------------------------------------------------------------------------
        In sharp contrast to Ranking Member Conyers' belief,
    Freedom House, a widely-respected, non-partisan, and broadly-
    based non-profit organization, consistently rates the United
    States in its Freedom in the World survey in the ``most free''
    category. The United States also receives the highest rating in
    its commitment to respecting political rights and civil
    liberties.\4\ The survey rates the rights and freedoms enjoyed
    by individuals and does not equate constitutional guarantees of
    human rights with the actual realization of these rights by
    citizens of countries it ranks.\5\ Both laws and actual
    practices are factored into the rating decisions.\6\ According
    to the survey, political rights enable people to participate
    freely in the political process, including the right to vote,
    compete for public office, and elect representatives who have a
    decisive impact on public policies and are accountable to the
    electorate.\7\ Civil liberties allow for the freedoms of
    expression and belief, associational and organizational rights,
    rule of law, and personal autonomy without interference from
    the state.\8\ The rule of law analysis encompasses the degree
    to which a country provides protection from police terror,
    unjustified imprisonment, exile, or torture.\9\ The survey
    rates countries on both political rights and civil liberties,
    rating them on a scale of 1 to 7 with 1 representing the most
    free and 7 the least free.\10\ The United States consistently
    receives a rating of 1 on both political rights and civil
    liberties.\11\
    ---------------------------------------------------------------------------
        \4\ See http://www.freedomhouse.org/ratings/allscore04.xls (Freedom
    in the World Country Ratings 1972-2003).
        \5\ Http://www.freedomhouse.org/research/freeworld/2004/
    methodology.htm (Freedom in the World 2004: Survey Methodology).
        \6\ Id.
        \7\ Id.
        \8\ Id.
        \9\ Id.
        \10\ See http://www.freedomhouse.org/research/freeworld/2005/
    table2005.pdf (Freedom in the World 2005 Table of Independent Countries
    Comparative Measures of Freedom).
        \11\ See http://www.freedomhouse.org/ratings/allscore04.xls
    (Freedom in the World Country Ratings 1972-2003).
    ---------------------------------------------------------------------------
        According to Louis Henkin, a highly respected and often-
    cited professor of human rights law:

            The United States has the oldest continuing commitment
            to ``constitutionalism,'' including a commitment to
            individual rights and to the bill of rights as supreme
            constitutional law. It also has a long--perhaps the
            longest--history of constitutional government,
            including institutions to monitor and enforce respect
            for human rights. The international human rights
            movement, born during the Second World War, owes much
            to the example of the United States, and U.S.
            constitutional rights have been a principal source for
            international human rights law and a principal model
            for constitutional rights in the many new constitutions
            of old and new countries in the second half of the
            Twentieth Century.\12\
    ---------------------------------------------------------------------------
        \12\ Henkin, supra note 1, at 119.

        There is a broad, bipartisan, and long-standing consensus
    in the United States that the protection of human rights helps
    secure peace, deter aggression, promote the rule of law, combat
    crime and corruption, strengthen democracies, and prevent
    humanitarian crises.\13\ Consequently, a central goal of U.S.
    foreign policy has been the promotion of respect of human
    rights. The United States Department of State Bureau of
    Democracy, Human Rights, and Labor compiles a 5,000 page annual
    report regarding the status of internationally-recognized human
    rights, which it transmits to Congress.\14\ As this report
    indicates, the United States' commitment to human rights
    extends beyond her own citizens to those of other countries.
    This commitment has most recently been manifested in America's
    liberation of Afghanistan and Iraq from totalitarian regimes.
    The struggle for human liberty continues on other fronts, and
    America will continue to lead this fight.
    ---------------------------------------------------------------------------
        \13\ See http://www.state.gov/g/drl/hr/ (U.S. Department of State
    Bureau of Democracy, Human Rights, and Labor: Human Rights).
        \14\ See http://www.state.gov/g/drl/rls/hrrpt/2004/index.htm (U.S.
    Department of State Bureau of Democracy, Human Rights, and Labor: Human
    Rights).
    ---------------------------------------------------------------------------
        The American flag symbolizes America's enduring commitment
    to these values and merits protection from desecration. The
    flag has united America in times of crisis and continues to
    serve as an international symbol of freedom to those who must
    have it. As he had throughout his political life, in his
    Farewell Address, President Reagan evoked an image of America
    as a ``shining city upon a hill'' that has inspired the hopes
    and aspirations of all of mankind. Near the end of his address,
    President Reagan asked, ``And how stands the city on this
    winter night?'' He then answered by stating: ``After 200 years,
    two centuries, she still stands strong and true on the granite
    ridge, and her glow has held steady no matter what storm. And
    she's still a beacon, still a magnet for all who must have
    freedom, for all the pilgrims from all the lost places who are
    hurtling through the darkness toward home.''
        This is the America that the signatories below saw then,
    and see still.

                                       F. James Sensenbrenner, Jr.
                                       Lamar Smith.
                                       Elton Gallegly.
                                       Steve Chabot.
                                       Daniel E. Lungren.
                                       William L. Jenkins.
                                       Chris Cannon.
                                       Bob Inglis.
                                       John N. Hostettler.
                                       Mark Green.
                                       Ric Keller.
                                       Darrell Issa.
                                       Mike Pence.
                                       J. Randy Forbes.
                                       Steve King.

                                Dissenting Views

        H.J. Res. 10, the so-called ``Flag Protection Amendment,''
    would mark the first time in our nation's history that the
    Constitution has 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 by allowing Congress to enact legislation
    prohibiting ``physical desecration'' of the flag of the United
    States. This dangerous and unnecessary assault on our
    fundamental liberties would set a terrible precedent. For the
    reasons set out below, we respectfully dissent.

                                   BACKGROUND

        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. 10 109th Cong. (2005).
    ---------------------------------------------------------------------------
        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 the 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, 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 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.'' \3\ The law imposed a penalty of up to $1,000 in fines
    and/or 1 year in prison.
    ---------------------------------------------------------------------------
        \3\ Pub. L. 90-381, Sec. 1, 82 Stat. 291 (1989) (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 addressed directly whether a
    flag burning statute violates the First Amendment in Texas v.
    Johnson.\7\ The Court determined that the First Amendment
    protects those citizens who burn the U.S. flag in political
    protest from prosecution. In that case, Gregory Johnson was
    arrested for burning the U.S. flag in violation of Texas'
    ``Venerated Objects'' law \8\ during a demonstration outside of
    the Republican National Convention in Dallas. The Texas statute
    outlawed ``intentionally or knowingly'' desecrating a
    ``national flag.'' According to the statute, the term
    ``desecrate'' was defined to mean ``to deface, damage or
    otherwise physically mistreat in a way that the actor knows
    will seriously offend one or more persons likely to observe or
    discover his action.'' \9\ The Court of Appeals for the Fifth
    District of Texas upheld Johnson's conviction.\10\ Texas'
    highest criminal court, the Court of Criminal Appeals, reversed
    the lower court decision, holding that the Texas law had been
    unconstitutionally applied to Johnson in violation of his First
    Amendment rights.\11\
    ---------------------------------------------------------------------------
        \7\ 491 U.S. 397 (1989).
        \8\ Tex. Penal Code Ann. Sec. 42.09(a)(3) (1989).
        \9\ Tex. Penal Code Ann. Sec. 42.09(b) (1989).
        \10\ 706 S.W. 2d 120 (1986).
        \11\ 755 S.W. 2d 92 (1988).
    ---------------------------------------------------------------------------
        The Supreme Court affirmed the Texas Court of Criminal
    Appeals ruling. The Court found that Johnson's conduct
    constituted symbolic expression which was both intentional and
    overtly apparent. The Court determined that, since Johnson's
    guilt depended on the communicative aspect of his expressive
    conduct, and was restricted because of the content of the
    message he conveyed, the Texas statute was ``content-based''
    and subject to ``the most exacting scrutiny test'' outlined in
    Boos v. Barry.\12\ 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.\13\ 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.\14\
    ---------------------------------------------------------------------------
        \12\ 485 U.S. 312 (1988).
        \13\ 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.
        \14\ 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 of any substance or represented on
    any substance, of any size evidently purporting to be either of said
    flag, standard, colors, or ensign of the United States of America or a
    picture or a representation of either, upon which shall be shown the
    colors, the stars and stripes, in any number of either thereof, or of
    any part or parts of either, by which the average person seeing the
    same without deliberation may believe the same to represent the flag. .
    . .''
    ---------------------------------------------------------------------------
        In response to the Johnson ruling, Congress took steps to
    amend the 1968 statute to make it ``content neutral'' by
    passing the ``Flag Protection Act of 1989.'' \15\ The Act
    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.\16\ Following passage of the 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 \17\ In both cases, the Federal district courts relied on
    Johnson, striking down the 1989 law as unconstitutional when
    applied to political protesters.
    ---------------------------------------------------------------------------
        \15\ Pub. L. No. 101-131 (1989).
        \16\ 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.
        \17\ The Washington, DC, protest occurred on the steps of the
    Capitol.
    ---------------------------------------------------------------------------
        The Supreme Court accepted jurisdiction of these cases
    (consolidated as U.S. v. Eichman, 496 U.S. 310 (1990)) and, in
    a 5-4 decision, upheld the lower Federal court rulings and
    struck down the Flag Protection Act of 1989.\18\ 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.''
    ---------------------------------------------------------------------------
        \18\ U.S. v. Eichman, 496 U.S. 310 (1990) (consolidating No. 89-
    1433, U.S. v. Eichman, 731 F.Supp. 1123 (D.D.C. 1990), and U.S. v.
    Haggerty, 731 F.Supp. (W.D.WA. 1990)).
    ---------------------------------------------------------------------------
        Since the Eichman decision, Congress repeatedly considered
    and rejected a proposed Constitutional amendment specifying
    that ``the Congress and the states have the power to prohibit
    the physical desecration of the flag of the United States.''

                   I. THE AMENDMENT WAS NOT SUBJECT TO EVEN
                               PRO FORMA HEARINGS

        Historically, 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. 10 would, for the first time in our
    Nation's history, modify the Bill of Rights to limit freedom of
    expression.
        Notwithstanding the gravity of the issue, the majority has
    decided that this unprecedented departure from our nation's
    constitutional heritage does not even merit the otherwise pro
    forma hearings that have become the rule since the 107th
    Congress.
        The Committee did not hold a single hearing on this
    momentous question. The Subcommittee on the Constitution held
    neither a hearing nor a markup. This reckless disregard for the
    future of our Bill of Rights is nothing less that a complete
    abdication of the Committee's core duty under Rule X of the
    Rules of the House, and the oath every member takes on assuming
    office to ``support and defend the Constitution of the United
    States against all enemies, foreign and domestic; [to] bear
    true faith and allegiance to the same . . . and [to] well and
    faithfully discharge the duties of the office on which I am
    about to enter. . . .'' \19\
    ---------------------------------------------------------------------------
        \19\ 5 U.S.C. 3331.
    ---------------------------------------------------------------------------
        In an effort to give the Committee the opportunity of at
    least one hearing on this momentous issue, Mr. Conyers made a
    motion to postpone further consideration of the proposed
    amendment until June 15, 2005. Due to an erroneous ruling by
    the Committee's Parliamentarian, the Chairman called a vote of
    the Committee without debate on the motion. The motion was
    defeated on a party line vote of 12 Ayes and 20 Nays. Mr.
    Nadler then offered a motion to postpone further consideration
    until June 16, 2005. Following debate, the motion was defeated
    on a party line vote of 11 Ayes and 19 Nays.
        We believe that it is irresponsible to amend the Bill of
    Rights without a hearing, even if, as the Chairman believes,
    ``having a hearing on this amendment will simply have everybody
    validating the arguments that have been made both pro and con
    in hearings that have been held before the subcommittee in
    previous Congresses. If there were new arguments, I'd like to
    hear them. But since there aren't, we don't need to have
    another hearing.'' \20\ We do not share the Chairman's
    confidence that there is nothing to learn from a hearing. It is
    our job to approach important questions with open minds and
    seek information, not to shun it. It is certainly inappropriate
    for the majority to prejudge a question of this importance.
    ---------------------------------------------------------------------------
        \20\ H.Rpt. No. 109-___ at ___ (2005)(Statement of Rep. F. James
    Sensenbrenner).
    ---------------------------------------------------------------------------
        In fact, the Committee received numerous written comments
    in opposition to the proposed amendment. These comments were
    made a part of the record during the markup. We sincerely doubt
    any member had the opportunity to review, much less consider,
    these helpful comments before voting.\21\
    ---------------------------------------------------------------------------
        \21\ Letter from Gregory T. Nojeim, Acting Director, and Terri A.
    Schroeder, Senior Lobbyist, American Civil Liberties Union, to Members
    of the U.S. House of Representatives (May 23, 2005); Letter from Gary
    E. May, Veterans Defending the Bill of Rights, to Members of the U.S.
    House of Representatives (May 24, 2005); Letter from Veterans for
    Common Sense, to Members of the U.S. House of Representatives (May 24,
    2005); Letter from former Captain Jeremy Broussard (U.S. Army) to Rep.
    F. James Sensenbrenner, Jr., and Rep. John Conyers, Jr. (May 24, 2005);
    Letter from Maj. Robert A. Cordes (USAF, Ret.) to Members of the U.S.
    Senate (March 10, 2004); Letter from Bruce Fein, Esq. to Sen. Orrin
    Hatch and Sen. Patrick Leahy (June 7, 2004); Letter from Lt. Gen.
    Robert G. Gard, Jr. (U.S. Army, Ret.) to Sen. Orrin Hatch and Sen.
    Patrick Leahy (March 8, 2004); Letter from William C. Ragsdale (U.S.
    Navy, Ret.) to Sen. Orrin Hatch and Sen. Patrick Leahy (March 10,
    2004); Letter from Steven E. Sanderson (U.S. Army veteran) to Members
    of the Senate Committee on the Judiciary (March 8, 2004); Letter from
    Lt. Gen. Claudia J. Kennedy (USA, Ret.) to Rep. F. James Sensenbrenner,
    Jr., and Rep. John Conyers, Jr. (May 24, 2005).
    ---------------------------------------------------------------------------

            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.\22\ As Chairman Chabot observed:
    ---------------------------------------------------------------------------
        \22\ 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.

            Limiting the amendment to only the burning of the flag
            rather than desecration would unduly limit the object
            and purpose of this resolution to give Congress the
            power to protect the flag from a range of physical acts
            of defilement or defacement. The word ``desecration''
            was selected to give Congress the power to protect the
            flag from a range of physical acts of defilement or
            defacement. The word ``desecration'' was selected
            because of its broad nature encompassing many actions
            against the flag.\23\
    ---------------------------------------------------------------------------
        \23\ H.Rpt. No. 109-___ at ___ (2005) (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.'' \24\ 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.
    ---------------------------------------------------------------------------
        \24\ 4 U.S.C. 8(k).
    ---------------------------------------------------------------------------
        The Framers of the Constitution saw dissent and its
    protection as an affirmative social good.\25\ 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.
    ---------------------------------------------------------------------------
        \25\ ``[T]hose who are resentful because their interests are not
    accorded fair weight, and who may be doubly resentful because they have
    not even had a chance to present those interests, may seek to attain by
    radical changes in existing institutions what they have failed to get
    from the institutions themselves. Thus liberty of expression, though
    often productive of divisiveness, may contribute to social stability.''
    Kent Greenwalt, Speech and Crime, Am. B. Found. Res. J. 645, 672-3
    (1980).
    ---------------------------------------------------------------------------
        There can be no doubt that ``symbolic speech'' relating to
    the flag falls squarely within the ambit of traditionally
    protected speech. Our nation was borne in the dramatic symbolic
    speech of the Boston Tea Party. Moreover, 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 \26\ and
    continuing through the mid-1970's with Smith v. Goguen \27\ and
    Spence v. Washington, \28\ 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.\29\
    Those who seek to justify H.J. Res. 10 on the grounds that flag
    desecration does not constitute ``speech'' are therefore
    denying decades of well understood law.\30\
    ---------------------------------------------------------------------------
        \26\ 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.
        \27\ 415 U.S. 94 (1972).
        \28\ 418 U.S. 405 (1974) (overturning convictions involving wearing
    a flag patch and attaching a peace sign to a flag).
        \29\ Texas v. Johnson, 491 U.S. at 397.
        \30\ 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 oppose or favor such an
    amendment if they knew it would be the first in our Nation's history to
    restrict freedom of speech and freedom of political protest, support
    plummeted from 64 percent to 38 percent.
    ---------------------------------------------------------------------------
        While we deplore the burning of an American flag in hatred,
    we recognize that it is our allowance of this conduct that
    reinforces the strength of the Constitution. As one Federal
    court wrote in a 1974 flag burning case, ``[T]he flag and that
    which it symbolizes is dear to us, but not so cherished as
    those high moral, legal, and ethical precepts which our
    Constitution teaches.'' \31\
    ---------------------------------------------------------------------------
        \31\ U.S. ex rel Radich v. Criminal Court of N.Y., 385 F. Supp.
    165, 184 (1974).
    ---------------------------------------------------------------------------
        The genius of the Constitution lies in its indifference to
    a particular individual's cause. The fact that flag burners are
    able to take refuge in the First Amendment means that every
    citizen can be assured that the Bill of Rights will be
    available to protect his or her rights and liberties should the
    need arise.
        H.J. Res. 10 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.\32\
    ---------------------------------------------------------------------------
        \32\ 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
    [were] overlooked.'' \33\ 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.'' \34\
    ---------------------------------------------------------------------------
        \33\ See Robert J. Goldstein, Two Centuries of Flagburning in the
    United States, 163 Flag Bull. 65, 154 (1995).
        \34\ Id.
    ---------------------------------------------------------------------------
        Almost as significant as the damage H.J. Res. 10 would do
    to our own Constitution is the harm it will inflict on our
    international standing in the area of human rights. 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.\35\ 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 similar to the this Act. Americans
    justifiably applauded these brave actions as political speech,
    understanding the injustice of the laws of those regimes. 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.\36\ By adopting H.J. Res 10 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.
    ---------------------------------------------------------------------------
        \35\ Rotunda, Treatise on Constitutional Law: Substance and
    Procedure Sec. 20.49 at 352 (2d ed. 1992).
        \36\ 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.'').
    ---------------------------------------------------------------------------

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

        Adoption of H.J. Res. 10 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. 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.\37\
    ---------------------------------------------------------------------------
        \37\ 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.\38\ Conservative legal scholar
    Bruce Fein emphasized this concern when he testified before the
    Subcommittee at 1995 House Judiciary hearings:
    ---------------------------------------------------------------------------
        \38\ 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.\39\
    ---------------------------------------------------------------------------
        \39\ 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 also 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.'' \40\
    ---------------------------------------------------------------------------
        \40\ See 1997 House Judiciary Hearings, supra note 35 (statement of
    Professor Norman Dorsen, New York University School of Law).
    ---------------------------------------------------------------------------

                         IV. FLAG BURNING RARELY OCCURS

        H.J. Res. 10 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 \41\ decision in 1989 there were only 45 reported
    incidents of flag burning.\42\ Experience with prior efforts to
    criminalize flag desecration indicates that imposing such
    penalties have actually instigated flag burning.\43\
    ---------------------------------------------------------------------------
        \41\ See supra at 3-5.
        \42\ Robert J. Goldstein, Two Centuries of Flagburning in the
    United States, 163 Flag Bull. 65 (1995).
        \43\ In his extensive survey of the history of American flag
    desecration law, Robert Goldstein writes that ``[a]lthough the purpose
    of the [Flag Protection Act adopted by Congress in 1968] was to
    supposedly end flag burnings, its immediate impact was to spur perhaps
    the largest single wave of such incidents in American history.'' Robert
    J. Goldstein, Saving ``Old Glory'': The History of the American Flag
    Desecration Controversy 215 (1995).
    ---------------------------------------------------------------------------
        In addition to the relative infrequency of flag burning,
    proponents of the measure cast the current state of the law as
    though Congress is impotent to protect the flag. However, even
    witnesses who disagree with the Supreme Court rulings in
    Johnson and Eichman have stated that the impact of those cases
    was not so broad. In 1995, Bruce Fein stated as much in
    subcommittee hearings: ``Flag desecrations when employed as
    `fighting words' or when intended and likely to incite a
    violation of law remain criminally punishable under the Supreme
    Court precedents in Chaplinsky v. New Hampshire and Brandenburg
    v. Ohio.'' \44\
    ---------------------------------------------------------------------------
        \44\ 1995 House Judiciary Hearings, supra note 39 (statement of
    Bruce Fein at 1-2).
    ---------------------------------------------------------------------------

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

        It is a mistake to argue that this amendment honors the
    courage and sacrifice of our veterans. While we condemn those
    who would dishonor our nation's flag, we believe that rather
    than protecting the flag, H.J. Res. 10 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.\45\
    ---------------------------------------------------------------------------
        \45\ 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.\46\
    ---------------------------------------------------------------------------
        \46\ See 1997 House Judiciary Hearings, supra note 35 (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. In testimony submitted at the same hearing, he 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 ensure that programs designed to protect them
    and provide them with much needed assistance are properly
    funded. During the Full Committee markup of H.J. Res. 10 on May
    25, 2005, Ms. Lofgren offered an amendment that would have
    provided for such proper programming and funding. Ms. Lofgren
    proposed that H.J. Res. 10 would not take effect until Congress
    guaranteed that veteran's benefits promised to an individual in
    connection with that individual's enlistment or induction in
    the Armed Forces could not be diminished after enlistment or
    induction. Unfortunately, this Committee, with this
    Administration and the Republican majority, have chosen to
    honor veterans with symbolic legislation, rather than tending
    to the needs of our veterans, our service men and women in the
    field, and their families.
        Yet this year's budget short-changes our veterans in vital
    areas such as health care. The President's proposed budget,
    providing $31.4 billion for appropriated veterans' programs, is
    a staggering $338 million below the amount that the
    Congressional Budget Office estimates is needed to maintain
    services at the 2005 level. As the Disabled American Veterans
    observed:

            The Administration's budget for fiscal year (FY) 2006
            seeks only $27.8 billion in appropriations for
            veterans' medical care. This amounts to only a 0.4%--or
            less than one-half of 1 percent--increase over the FY
            2005 appropriation in nominal, or constant, dollars,
            and therefore would be a reduction below the FY 2005
            appropriation of $27.7 billion adjusted for inflation.
            The Administration's budget would tighten funding for
            veterans' medical care at a time when an influx of new
            veterans from the wars in Iraq and Afghanistan will
            place substantial new demands upon a system already
            unable to meet its mission. With the FY 2005
            appropriation, the Department of Veterans Affairs (VA)
            had to maintain a freeze on new enrollments of lower
            priority group veterans seeking medical care, and even
            with that freeze, VA medical facilities across the
            Nation are already experiencing shortfalls in FY 2005
            funding. These shortfalls prevent the hiring of new
            health care employees and new equipment purchases. The
            Independent Budget, coauthored by the Disabled American
            Veterans, AMVETS, the Paralyzed Veterans of America,
            and Veterans of Foreign Wars, estimates that Congress
            must appropriate $31.2 billion for veterans' medical
            care in FY 2006 just to maintain current service
            levels.\47\
    ---------------------------------------------------------------------------
        \47\ Disabled American Veterans, To Maintain Essential Services for
    Veterans, Congress Must Provide Adequate Funding, (visited June 3,
    2005) .

        Rep. David Obey attempted to add an additional $2.6 billion
    to the FY 2006 Military Quality of Life and Veterans Affairs
    bill,\48\ but his amendment was rejected by the Appropriations
    Committee. As Rep. Obey argued:
    ---------------------------------------------------------------------------
        \48\ H.R. 2528, 109th Congress (2005).

            We also have a moral obligation to point out at every
            opportunity that the reason why veterans will not be
            receiving the health care they deserve is because of
            the misbegotten, ill-advised budget that the Republican
            Congress passed just a few short weeks ago. That
            budget, which only one Republican member of the
            Appropriations Committee opposed, is the reason that
            veterans will not receive the health care that they
            were promised and that they deserve.\49\
    ---------------------------------------------------------------------------
        \49\ H.Rpt. No. 109-94, at 95-96 (2005).
    ---------------------------------------------------------------------------

                                   CONCLUSION

        Adoption of H.J. Res. 10 will undermine our commitment to
    freedom of expression and do real damage to the constitutional
    system established by our forefathers. If we amend the
    Constitution to outlaw flag desecration, we will be joining
    ranks with countries such as China, Iran and the former Soviet
    Union.\50\ 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:
    ---------------------------------------------------------------------------
        \50\ Roman Rolinick, Flag Amendment would put U.S. with Iran,
    China, UPI (July 1, 1989).

            [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.\51\
    ---------------------------------------------------------------------------
        \51\ 319 U.S. at 641.

        If we adopt H.J. Res. 10, 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.

                          AMENDMENTS OFFERED AT MARKUP

        During the markup three amendments were offered by
    Democratic members:
    1. Scott Amendment
        Description of Amendment: The amendment that would have
    replaced the word ``desecration'' with the word ``burning'' in
    order to make the proposed amendment neutral with respect to a
    person's expressive intent.
        Vote on Amendment: The amendment was rejected on a party
    line vote of 11 ayes and 19 nays. Voting aye: Mr. Conyers, Mr.
    Nadler, Mr. Scott, Mr. Watt, Ms. Lofgren, Ms. Jackson Lee, Mr.
    Meehan, Mr. Weiner, Mr. Schiff, Ms. Sanchez, and Mr. Van
    Hollen. Voting Nay: Mr. Coble, Mr. Smith, Mr. Gallegly, Mr.
    Chabot, Mr. Lungren, Mr. Jenkins, Mr. Cannon, Mr. Inglis, Mr.
    Hostettler, Mr. Green, Mr. Keller, Mr. Issa, Mr. Flake, Mr.
    Forbes, Mr. King, Mr. Feeney, Mr. Franks, Mr. Gohmert, and
    Chairman Sensenbrenner.
    2. Lofgren Amendment
        Description of Amendment: The amendment would have
    specified that the constitutional amendment would not take
    effect until the date on which Congress by law ensures that the
    veteran's benefits promised to an individual in connection with
    that individual's enlistment or induction in the Armed Forces
    cannot, after that enlistment or induction, be diminished.
        Vote on Amendment: Chairman Sensenbrenner sustained an
    objection to the amendment on the ground that it was not
    germane to the legislation. A motion to table an appeal of the
    ruling of the Chair was adopted on a party line vote of 17 ayes
    and 9 nays. Voting Aye: Mr. Coble, Mr. Smith, Mr. Gallegly, Mr.
    Goodlatte, Mr. Chabot, Mr. Lungren, Mr. Jenkins, Mr. Cannon,
    Mr. Inglis, Mr. Hostettler, Mr. Green, Mr. Keller, Mr. Issa,
    Mr. King, Mr. Franks, Mr. Gohmert, and Chairman Sensenbrenner.
    Voting Nay: Mr. Conyers, Mr. Nadler, Mr. Scott, Mr. Watt, Ms.
    Lofgren, Mr. Weiner, Mr. Schiff, Ms. Sanchez, and Mr. Van
    Hollen.
    3. Lofgren Amendment
        Description of Amendment: The amendment that would have
    substituted new language requiring that every flag of the
    United States manufactured in, or imported into, the United
    States after the effective date of the amendment must be
    manufactured out of flame-resistant material.
        Vote on Amendment: The Amendment was defeated by a voice
    vote.

                                       John Conyers, Jr.
                                       Howard L. Berman.
                                       Rick Boucher.
                                       Jerrold Nadler.
                                       Robert C. Scott.
                                       Melvin L. Watt.
                                       Zoe Lofgren.
                                       Sheila Jackson Lee.
                                       Maxine Waters.
                                       Martin T. Meehan.
                                       William D. Delahunt.
                                       Robert Wexler.
                                       Anthony D. Weiner.
                                       Linda T. Sanchez.
                                       Chris Van Hollen.